ADEKUNLE & ANOR v. GOVERNOR OF LAGOS STATE & ANOR (2020)

ADEKUNLE & ANOR v. GOVERNOR OF LAGOS STATE & ANOR

(2020)LCN/14113(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 19, 2020

CA/L/282/2012

Before Our Lordships:

Tijjani Abubakar Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. MRS WURAOLA ADEKUNLE 2. MR. ADENIYI ADEKUNLEAPPELANT(S)

And

1. GOVERNOR OF LAGOS STATE 2. ATTORNEY GENERAL OF LAGOS STATERESPONDENT(S)

RATIO

BURDEN OF PROOF IN CIVIL MATTERS

The burden of proof in the lower Court is on the Appellants who alleged that the revocation was wrongly done to establish that by showing that the company has paid the ground rent as at when due. This is because the law on the burden of proof is clear and settled which is that the initial burden is on the party who will lose the case if no evidence is called. Specifically, it is the Appellants that are alleging that the revocation was wrongly done, the initial burden rests on them to establish that it was wrongly done and it is only after then the burden can eventually shift to the Respondents. In Nduul vs. Wayo & Ors (2018) LPELR-45151(SC), the Supreme Court per Kekere-Ekun, JSC pages 51-53 drove home the above point in these words:
“The first question to consider in resolving this issue is: on whom does the burden of proof lie. Section 133 (1) and (2) of the Evidence Act 2011 provides:
133 (1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to presumptions that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with.
The meaning of “burden of proof” was explained by this Court in: Odukwe vs. Ogunbiyi (1998) 8 NWLR (pt. 561) 339 @ 353 D – H , as follows:
“…the phrase “burden of proof” in civil cases has two distinct and frequently confused meanings. This comprises, firstly, of the burden of proof as a matter of law and the pleadings, usually referred to as the legal burden or the burden of establishing a case and, secondly, the burden of proof in the sense of adducing evidence, usually described as the evidential burden. While the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates. As Aniagolu, JSC explained the issue in Felix O. Osawaru Vs. Simon Ezeiruka (1978) 6 & 7 SC 135 at 145, “In civil cases, while the burden of proof in the sense of establishing the case, initially lies on the plaintiff …, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses.”
Thus, the general rule is that he who asserts must prove. The burden is therefore on the plaintiff to first adduce prima facie evidence in support of his case. Where a prima facie case is made out, the burden shifts to the defence to adduce counter evidence to sustain their defence. Where an allegation is made, positively or negatively and it forms an essential part of a party’s case, the proof of such allegation rests on him. See also: Plateau State of Nig. & Anor. Vs A.G. Federation & Anor. (2006) 3 NWLR (Pt. 967) 345 @ 417 D – F; Imana Vs Robinson (1979) 3 – 4 SC (Reprint) 1. However, the evidential burden of proving particular facts may shift throughout the proceedings. See: Buhari vs. INEC (2008) 19 NWLR (pt. 1120) 246; Okoye vs. Nwankwo (2014) 15 NWLR (pt. 1429) 93; Odukwe vs. Ogunbiyi (supra). PER TOBI, J.C.A.

BURDEN OF PROOF WHERE A PARTY SEEKS DECLARATORY RELIEFS
Where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted, even on admission. The claimant is also not entitled to rely on the weakness of the defence, if any. It has been held that the rationale for this position of the law is that a claim for declaratory reliefs calls for the exercise of the Court’s discretionary powers in favour of the claimant. He must therefore place sufficient material before the Court to enable it exercise such discretion in his favour. See: Williams Vs. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145 @ 152; Ogolo vs. Ogolo (2003) 18 NWLR (pt. 852) 494; Okoye vs. Nwankwo (supra).”
See also Akinbade & Ors vs. Babatunde & Ors (2017) 12 SC (Pt.III) 84; Iroagbara vs. Ufomadu (2009) 11 NWLR (Pt.1153) 587; Imana vs. Robinson (1979) ANLR 1. PER TOBI, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE LOWER COURT

The law on when and how an appellate Court can interfere with the finding of the lower Court is settled. An appellate Court such as this is not to interfere with the finding of the lower Court except it is shown that the finding does not correspondent or reflect the evidence adduced before the lower Court. This means that the evidence was wrongly evaluated and as a result has occasioned a miscarriage of justice. In such a circumstance, the appellate Court can re-evaluate the evidence to ensure justice is done. In Highgrade Maritime Services Ltd vs. FBN Ltd (1991) 1 NWLR (Pt.167) 290; (1991) LPELR-1364 (SC), the Apex Court per Wali, JSC at page 24 held:
“It is abundantly clear that the learned trial Judge had failed in his duty to properly consider the evidence before him which led him to drawing wrongful conclusions from the evidence he accepted. See Ebba v. Ogodo (1984) 1 S.C.N.L.R. 372; Okolo v. Uzoka (1978) 4 S.C.77 at 86 per Obaseki, J.S.C. PER TOBI, J.C.A.

CIRCUMSTANCES WHERE THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE LOWER COURT

The findings of fact and the conclusions arrived at by Kolawale, J.C.A. in this case cannot be faulted. See Abinabina v. Enyimadu (1953) 12 W.A.C.A. 171 (1953) A.C 207 where the Court commented on interference by the Court of Appeal with the findings of fact of the trial Court as follows –
“1. In order to obviate the practice there must be some miscarriage of justice or violation of sound principle of law or procedure which result in a miscarriage of justice.
2. The term ‘miscarriage of justice’ means a prejudice to the chance of the other party to get the judgment of the Court in his favour.”
See also Amida & Ors v. Oshoboja (1984) 7 S.C.68 at 89; Woluchem v. Gudi (1981)5 S.C. 291 at 326 and Okuoja v. Ishola (1982) 7 S.C. 314 at 349.”
The point must be made that an appellate Court cannot replace his finding for that of the lower Court simply on the ground that it would have arrived at a different finding. See Olatunde & Anor vs. Abidogun NSCQR Vol. 18 (2001) 325. The reason for the intervention is only when the finding does not reflect the evidence before the Court. This clearly restrains an appellate Court from going into an arena that it was not privileged to have been part of in the lower Court. The appellate Court is not permitted to go on a voyage of discovery to re-evaluate fact. PER TOBI, J.C.A.

WHETHER OR NOT THE GOVERNOR CAN REVOKE RIGHTS OF OCCUPANCY

In Dantsoho vs. Mohammed (2003) 2 SC 42; (2003) LPELR-926 (SC), Katsina-Alu, JSC (as he then was) held on page 13-15 as follows:
“Power of the Governor to revoke rights of occupancy. The power of the Governor to revoke rights of occupancy under the Land Use Act is provided for in Section 28. The relevant provisions thereof are Section 28(1), (2), (4), (5), (6), and (7). They provide that:
“28(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a statutory right of occupancy means –
(a) the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;
(b) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(c) the requirement of the land for mining purposes connected there with.
(4) The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes.
(5) The Governor may revoke a statutory right of occupancy on the ground of-
(a) a breach of any of the provisions which a certificate of occupancy is by Section 10 of this Act deemed to contain;
(b) a breach of any terms contained in the certificate of occupancy or in any special contract made under Section 8 of this Act;
(c) refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under sub-section (3) of Section 9 of this Act.
(6) This revocation of a right of occupancy shall be under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub-section (6) of this section or on such later date as may be stated in the notice.”
The right of occupancy talked of herein, in my view, includes deemed rights of occupancy derived under Sections 34(2) and 36(4).
The power of the Governor to revoke a right of occupancy must be for overriding public interest and for requirement by the Federal Government, for public purposes. So that any revocation for purposes outside the ones prescribed by Section 28 of the Act is against the policy and intention of the Act and can be declared invalid, null and void by a competent Court. See Osho v. Foreign Finance Corporation(1991) 4 NWLR (Pt. 184) 157. From the established facts of this case, it is crystal clear that the Governor did not act under the provisions of Section 28 of the Land Use Act.” PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The judgment that culminated in this appeal is the judgment of 30/11/2011 delivered by Hon. Justice O. Atinuke Ipaye (Mrs.) of the High Court of Lagos State in Suit No. ID/1454/2006 – Mrs. Wuraola Adekunle & Anor. vs. Governor of Lagos State & Anor. The brief facts of the case are that the Appellants (Claimants at the lower Court) are the administrators and beneficiaries of the Estate of Late Amos Aderemi Adekunle who before his death was trading under the name and style of Remi Amos Nigeria Enterprises. It is the claim of the Appellants at the lower Court that the Late Amos Aderemi Adekunle was allocated a parcel of land measuring 4053.7 sq meters situate at Plot 1, Maroko Foreshore Scheme in the Eti Osa Local Government Area of Lagos State on 27/09/89 by the Lagos State Government evidenced by a letter of allocation (Exhibit 10) covered by Certificate of Occupancy registered as No. 20 page 20 in volume 1989U (Exhibit 4). The allocation was a 99-year lease to which Remi Amos Enterprises took possession and immediately erected a perimeter fence and gatehouse with

the approval of the Government (Exhibit 11). The land was allotted for tourism and recreation purposes and it was used for berthing and transporting tourists to tourist sites such as the Tarkwa Bay Beach and other beaches. That sometime in 2/2/1996 Remi Amos Enterprises granted a 30 years sublease to Mobil Oil Nigeria Ltd. That the Governor’s consent to the sublease was obtained sometime in 2003 and same was registered as No. 24 at Page 24 in Volume 2090 in the Register of Deeds, Land Registry, Alausa, Lagos. That sometime in 2004, the Appellants requested from the appropriate government office for a demand notice to enable them to pay the outstanding ground rents. That none was issued until they briefed a solicitor to make the demands on their behalf. The demand notices for the period of 1994-2004 were eventually obtained by their solicitor, and payment for the period in the sum of N837,760.00 was made to the Lagos State Government (LASG) with a revenue receipt issued by the latter (Exhibit 13(b)(c)). The Appellant thereafter applied for the 2005-2006 demand notices to enable them to discharge the obligations of Remi Amos Enterprises to the LASG. It was

at that point she received a letter from the LASG Ministry of Waterfront Infrastructure and Tourism Development stating that the statutory right of occupancy of Remi Amos Enterprises to the parcel of land had been revoked. It was based on the revocation that the Appellants initiated the suit at the lower Court.

The case of the Respondents (Defendant at the lower Court) is that the Appellants violated the terms of the letter of allocation and the Certificate of Occupancy granted to Remi Amos Enterprises (in this judgment hereinafter referred to as ‘the company’) by the refusal to pay the ground rent as at when due and inability to erect a building on the property within 2 years valued at N500,000 as clearly stated in Exhibits 4 and 10. This necessitated the letter of revocation in line with the provisions of the Land Use Act 2015. The said letter was served on the Appellants by posting same on the subject property. The lower Court after evaluating all the evidence before it dismissed the case of the Appellants in the judgment found on pages 323-355 of the record of appeal. At the lower Court, judgment was entered for the Respondents and the

Court held in conclusion as follows:
“The Claims in this suit not having been established, I find and hold are without merit. The claims in Suit No: ID/1454/2006 is dismissed in its entirety.
Gentlemen, this is the judgment of the Court.”

The Appellants dissatisfied with the judgment of the lower Court has filed this appeal. The Appellants’ notice of appeal dated and filed 31/1/2012 is found on pages 356-360 of the record of appeal. The grounds of the appeal are:
GROUND 1
The learned trial Judge erred in law by holding that the 1st and 2nd Respondents were right to have revoked the Appellants’ right of occupancy in respect of the Land with Certificate of Occupancy registered as No. 20 at Page 20 in Volume 1989U known and described as Plot 1 Maroko Foreshore Scheme in Eti-Osa Area of Lagos State for failure to pay ground rent and to develop the land for tourism.
GROUND 2
The learned Trial Judge erred in law when she held that the Appellants failed to place before the Court the approved building plans or the letter conveying the defendants’ approval leading to a reasonable conclusion that there is

no such approval.
GROUND 3
The learned Trial Judge erred in law when she held that the notice of revocation was served on Remi Amos Enterprises by pasting same on a conspicuous part of the subject property.
GROUND 4
The learned Trial Judge erred in law when she failed to address the fact that Exhibits 18 and 19 (the notice of revocation) were documents procured in anticipation of the suit.
GROUND 5
The learned Trial Judge erred in law when she held that Exhibits 18 and 19 dated 27/11/05 effectively extinguished all the rights to Remi Amos Enterprise inclusive of that of the sublease MONL (Mobil Oil Nig. Ltd) to the said parcel of land.

The Appellants’ amended brief of argument dated 18/3/2013 and filed 19/3/2013 was settled by Babatunde Olubando Esq., and adopted on 28/1/2020. The Appellants’ in their brief raised three issues for determination by this honourable Court. These are:
1. Whether the lower Court was right when it held that the 1st and 2nd Respondents served the Revocation Notice on Remi Amos Nig. Enterprises as prescribed by Section 44 of the Land Use Act and if the answer to this poser is in the

negative whether the revocation of the right of Occupancy of Remi Amos Nigeria Enterprises in respect of the land in dispute is null and void. (Issue 1 is distilled from grounds 3, 4 and 5 of the Notice of Appeal).
2. Whether the Lower Court was right in holding that the 1st and 2nd Respondents have justification for revoking the right of Occupancy of Remi Amos Nig. Enterprises (Distilled from ground 1 of the Notice of Appeal).
3. Whether the decision of the trial Court that Remi Amos Nig. Enterprises failed to place before the Court its approved building plan was perverse in view of the absence of any pleading or evidence on this issue by the Appellants (Distilled from ground 2 of the Notice of Appeal).

On issue 1, it is the submission of learned counsel to the Appellants that for a Notice of Revocation of Right of Occupancy to be effective and valid, it must be served in accordance with Section 44 of the Land Use Act. It is the further submission of counsel that despite the glaring lapses and contradictions contained in the Respondents’ only witness testimony, the learned trial judge held that the notice of revocation was properly and

duly served. He submitted that the findings of the learned trial judge on this issue are unreasonable and perverse and have occasioned a miscarriage of justice and therefore should be set aside. He relied on Royal Ade Nigeria Ltd. vs. National Oil and Chemical Marketing Company Plc. (2004) 18 NSCQR (Pt.1) 334 at 353-354; Shell B.P Petroleum Development Company Nigeria Ltd. vs. His Highness Pere Cole the Pere of Kumbowei Clan & 6 Ors. (1978) 3 SC 183 and Soleh Boneh Overseas (Nig.) Ltd. vs. Ayodele & Anor. (1989) 1 NWLR (Pt. 99) 549.

According to counsel, the question that arises is whether the Respondents discharged the burden placed on them by law to prove service of the revocation notice; a question which he answered in the negative. From a community reading of Section 44 of the Land Use Act, it is the submission of counsel that nine propositions can be distilled from that section. On proposition one, it is the submission of counsel that it is required that the witness testifying for the revoking authority must be the person who served the revocation notice. He further stated that the principle of law that the incidence of the burden of proof

is that he who asserts an allegation must prove it; which in this case, the Respondents failed to prove by the evidence of their DW1 to the effect that he served any of the two notices of revocation purportedly issued or that any other person served the revocation notices. He relied on Sections 135(1),(2) and 136 of the Evidence Act 2011; Elias vs. Disu (1993)6 NWLR (Pt. 298) 217 and Elemo vs. Omolade & Ors. (1968) NMLR 359.

On proposition two, it is the submission of counsel that the notices served must contain the name and address of the person to be served and the particulars of registration of the land in issue; which obviously was lacking in the two notices purportedly served and as such makes the notices null and void. He cited Bello vs. Diocesan Synod of Lagos & Ors. (1973) 8 NSCC 137 @ 153 and Attorney General Bendel State vs. Aideyan (1989) 4 NWLR (Pt. 118) 646. It is the further submission of counsel that where the provisions of a statute or a section of the statute being considered by a lower Court are impari material with another statute or section of a statute already considered and interpreted by a superior Court, light shall be

thrown on the meaning of such provision of that statute or its section by referring to the decision or interpretation of the superior Court. He placed reliance on Attorney General of Abia State vs. Attorney General Federation (2005) 12 NWLR (Pt. 940) 452 @ 588; Nwobodo vs. Onoh (1984) 15 NSCC @ 34-35; University of Lagos vs. Olaniyan (1985) 1 NWLR (Pt. 1) 156 @ 163; Ngige vs. Obi (2006) 11 NWLR (Pt. 999) 1 @ 221; and Idakula vs. Adamu (2001) 1 NWLR (Pt. 694) 322 @ 331 in submitting that the lower Court is bound by the interpretation given to Section 45(2) and 75 of the Lagos Town Planning Act by the Supreme Court in Bello vs. Diocesan Synod of Lagos State (Supra). The lower Court is obliged to follow it in interpreting Section 28(6) and 44 of the Land Use Act. In that case, the Supreme Court held that it is a mandatory requirement that a notice of revocation must be addressed to the holder of the right of occupancy in his name and when his name is not known, it can be addressed to him as the holder and owner.

On proposition three, it is the submission of counsel that Section 28 of the Land Use Act and its subsections are provisions of an exproprietary

statute which encroaches on a person’s proprietary rights and the law imposes the duty on the acquiring or revoking authority to strictly adhere to the formalities prescribed by the law. He relied on Peenok Investment Ltd vs. Hotel Presidential Ltd (1982) 12 S.C 1 @ 45; East Council Riding vs. Park Estate Bridlington Ltd. (1957) AC 233; Din vs. Federal Attorney General (1988) 4 NWLR (Pt. 87) 184 @ 197; and L.S.D.P.C vs. Foreign Finance Corporation (1987) 1 NWLR (Pt. 50) 413 in urging this Court to hold that the two notices of revocation are incompetent, null and void ab initio on the ground that they do not comply with the format of Form K of the Land Use Act. On propositions 4-9, it is the submission of learned counsel that the issue of substituted service which the Respondents resorted to was not effected in accordance with the law as none of the two notices had any name or address of the holder or occupier and the particulars of registration of the Land in issue. It is the further submission of counsel that the evidence of DW1, that the name and address of Remi Amos Nigeria Enterprises cannot be ascertained is unreliable, incapable of convincing and

ought not to have convinced the lower Court. He further argued that there is no proof before the Court that the revocation notice was conspicuously posted on the land in issue.

Relying on Fagbenro vs. Arobadi (2006) 25 NSCQR 627 @ 648; Sha (Jnr) vs. Kwan (2000) 8 NWLR (Pt. 670) 685; Romaine vs. Romaine (1992) 4 NWLR (Pt. 238) 650; Arisons vs. Military Governor of Ogun State (2009) 38 NSCQR (Pt. 11) 745 @ 773; and Adeye & Ors. vs. Adesanya & Ors. (2001) 5 NSCQR 522 @ 531, he called on this Court to evaluate the evidence provided as the lower Court finding is perverse as it did not correspond with the evidence before the lower Court. Counsel submitted that where the revoking authority fails to serve the revocation notice as prescribed by law, the purported revocation is null and void citing Administrators/Executors of the Estate of General Sani Abacha (Deceased) vs. Samuel David Eke Spiff & Ors (2009) 37 NSCQR 364 @ 402; CSS Bookshop vs. Registered Trustees of Muslim Community in Rivers State (2006) 26 NSCQR 477 @ 506; and Ononuju vs. A.G. Anambra State (2009) 38 NSCQR (Pt. 11) 1111 @ 1154-1155. He further cited the case of Adebayo vs. Shogo (2005)

21 NSCQR 93 @ 102-103 in submitting that the trial Court did not consider the case put forward by the Appellants and that has occasioned miscarried of justice.

It is the contention of learned counsel for the Appellants that by the pleadings of the Respondents, only one notice was allegedly issued but by their evidence two notices were allegedly issued and the DW1 did not state which of the two notices was served. Counsel therefore, submitted that the purported revocation notices were improper and that this Court should discountenance the two notices as they are of no probative value and should not have been acted upon by the lower Court. He cited Rockonoh vs. Nigerian Telecommunications Plc & Anor. (2001) 7 SC (Pt. 111) 154 @ 176; High Grade Maritime Services Ltd vs. First Bank of Nigeria Ltd (1991) 1 SCNJ 110. It is the further submission of counsel that the signature of the Governor was grafted onto Exhibit 18 and submitted that the lower Court missed the point on this issue when it held that if the Appellants were alleging fraud, they should have pleaded the particulars of fraud. Counsel cited the cases of Okoko vs. Dakolo (2006) 27 NSCQR 259 @

288 and Agbonifo vs. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 @ 341 in submitting that fraud is not the issue. Exhibits 18 and 19, the notices of revocation were filed by the Respondents to defeat the rights of the Appellants and pull a fast one on them and that it is the duty of the Court of law not to support any act of a party calculated to defeat the right of another. In support of its submission, counsel cited Kwajaffa vs. Bank of the North (2004) 18 NSCQR (Pt. 11) 543 @ 572. Counsel, therefore, urged this Court to resolve issue 1 in favour of the Appellants.

On issue 2, it is posited by learned counsel that from the pleadings of the parties, two issues can be distilled therefrom which are first, whether the company did pay ground rent in respect of the land in dispute for seventeen (17) years and secondly, whether it developed the land in dispute within two (2) years of the issuance of the certificate of occupancy.

On the first issue which is the non-payment of ground rent by the company, it is the submission of counsel that the onus of proof in civil cases lies on the party presenting the affirmative, though same is not static. He relied on

Savannah Bank & Anor vs. Crown Star & Anor (2003) 6 NWLR (Pt. 815) 1 at 19, Lewis & Peat Ltd. vs. Akhimien(1976) 1 All NLR (Pt. 1) 460 and Itauma vs. Akpe-ime (2000) 3 NSCQR 69 @ 77. It is the further submission of counsel that the Appellants having discharged the burden of proof that payment was made by the company for ground rent inclusive of arrears of same and penalty for late payment, the burden of proof shifts to the Respondents to rebut same. Going further, it is submitted by counsel that the finding of the learned trial judge was an approbation and reprobation when he held in one breath that Remi Amos Enterprises by Exhibit 12 (b) paid the ground rent for the year 2002 and cleared her outstanding arrears as at the said date to the tune of about N50,000 and in another breath, his lordship held that by Exhibits 7,12 (a), 13 (b) and (c) on behalf of Remi Amos Enterprises a lump sum payment of N837,760.00 which represented the ground rents for the year 2004 in the sum of N202,865.00 together with the arrears of ground rents for the period of 1994-2003 to the tune of N635,075.00 making a total of N837,760.00. Counsel urged this Court to impugn the

finding of the lower Court and set it aside as it is unreasonable and not supported by the facts and evidence before the lower Court.

It is the contention of counsel that the findings of the lower Court that the company paid ground rent only once in 2002 was not an issue in the pleadings and evidence of the parties but rather what is in issue is whether it paid its ground rent for 17 years or not. It is the submission of counsel that the duty of the Court is to confine itself to issues raised by parties. He cited A.S.E.S.E. vs. Ekwenem (2009) 40 NSCQR 51. Finally, on this issue, it is the submission of counsel that the argument of the Appellants that the ground rent is reviewed periodically and that without a demand notice issued by the Respondents no designated bank would accept the payment of ground rent from an allottee of state land, was never controverted by the Respondents. On the whole, it is the submission of counsel that the findings of the learned trial judge are perverse and should be set aside. He urged this Court to resolve issue 2 in favour of the Appellants.

On the last issue, issue 3, learned counsel relying on Sueade vs. Watherton

(1904) IKB @ 292 and Nwosu vs. Imo State Environmental Sanitation Authority & Ors (1990) 4 SCNJ 97 @ 126 submitted that the position of the law on amendment is that an amendment takes effect not from the date when the amendment is made but from the date of the original document which it amends. It is the contention of counsel that the lower Court imported facts and made a finding on some facts contained in the Appellants’ earlier pleading, about building plans for the development of a motel and tourist shopping center; when same was not contained in the amended pleadings nor canvassed. On this note, he submitted that the findings of the lower Court were not only erroneous but perverse and occasioned a miscarriage of justice and he urged this Court to set aside the said findings and consequently to allow the appeal.

The Respondents’ brief filed on 29/10/2018 but deemed on 9/12/2019 was adopted on 31/1/2020. The counsel that settled the Respondents’ brief is Nwokolo L.N. (Mrs.) wherein the following three issues were raised:
1. Whether the Appellants are in breach of Clause 1 of Letter of Allocation dated 26/10/89 and Clauses 1

and 5 of the Certificate of Occupancy dated 26/10/89 registered as No. 20/10/1989U leading to the revocation of Appellants’ right of occupancy in respect of Plot 1 Maroko Foreshore Scheme in Eti-Osa Area of Lagos State (distilled from Ground 1 of the Appellants’ Notice of appeal).
2. Whether the lower Court was right to hold that Appellants have failed to place before the Court the approved building plans or the letter conveying the said approval leading to the reasonable conclusion that there is no such plan or approval (distilled from Ground 2 of the Appellants’ Notice of Appeal)
3. Whether Notice of Revocation was properly served on Remi Amos Enterprises (distilled from Grounds 3, 4 and 5 of the Appellants’ Notice of Appeal).

On issue 1, counsel for the Respondents after reproducing Clauses 1 and 5 of Exhibit 4 – Certificate of Occupancy dated 26/10/89 registered as No. 20/20/1989U, submitted that it is manifest from the judgment of the lower Court that the Appellants failed or neglected to comply with the requirement of the payment of ground rent in advance without prior demand and the erection of a building on the

land of a value not less than N500,000.00. With respect to the contention of the Appellants that the finding of the lower Court that the company had paid ground rent once in 2002 was not an issue in the pleadings, it is the submission of Respondents’ counsel that the finding of the lower Court on this point is not perverse because the period of payment of land charge (which by implication included ground rent) had already been pleaded by the Appellants themselves in their paragraph 3.7 of their brief of argument. He urged this Court to discountenance the argument of the Appellants as the appellate Court will not ordinarily disturb the finding of fact by a trial Court. He cited Tsokwa Motors (Nig.) Ltd vs. U.B.A (2008) Vol. 2 M.J.S.C. 104 at 118-119.

It is counsel’s contention that the submission of the Appellants that they have discharged the burden of having paid ground rent is not true as the Appellants did not lead evidence at the lower Court to show that they have complied with the requirements of the payment of ground rent in advance without prior demand as provided in Exhibit 4 and as such. The issue of shifting of the burden of proof

does not even arise. He relied on Section 131 and 133 of the Evidence Act 1990; Gbafe vs Gbafe (1996) 6 NWLR (Pt. 455) 417 @ 432; Health Care Products (Nig) Ltd vs. Bazza (2004) 3 NWLR (Pt. 861) 52 @ 605-606.

On issue 2, it is the submission of counsel that Clause 5 of Exhibit 4 is very clear as regards the nature of development and the value of such that is to be erected on the land. It is his further submission that during the trial, the Appellants never tendered evidence of a building plan approval aside from the fencing permit tendered. He placed reliance on Odiete vs. Okotie (1972) 06 SC 83 and Echi & Ors vs. Nnamani & Ors (2000) LPELR 1001 (SC) in stating that where issues are joined, the onus of proof rests on the person who will fail if no evidence was adduced. Counsel to the Respondents concedes to the argument of the Appellants’ counsel that the learned trial judge ought not to have imported facts from a pleading that has been amended but submits that it is not every error of law committed by a trial or appellate Court that will justify the reversal of judgment but one that has occasioned a miscarriage of justice and/or substantially

affected the result of the decision. He cited Olubode vs. Salami (1985) 2 NWLR (Pt. 7) 282. He therefore, submits that the finding of the lower Court is not perverse and that since the Appellants did not tender any evidence of any approved building plan during the trial, the lower Court would not have come to a different conclusion that the Appellants failed to place before the Court the approved building plans or that the letter conveying the Defendants approval leading to no reasonable conclusion that there is no such plan or approval. He urged this Court to resolve issue 2 in favour of the Respondents.

On issue 3, it is the contention of learned counsel that the argument of the Appellants’ counsel on the point that the name and particulars of the person who purportedly served the revocation notice as well as the date and time of the alleged service is not in order as it was not part of the judgment at the lower Court nor was it raised by the Appellants at the lower Court. He submitted that the Appellants ought to have sought the leave of the Court to raise and argue a new issue, which they did not do. It is the further contention of the

Respondents’ counsel that the propositions made by the Appellants counsel flowing from Section 44 of the Land Use Act 1978 do not represent the requirement of the law but rather, the personal opinion of the Appellants. Going further, counsel submitted that Section 44 of the Land Use Act is the prevailing law on the mode of service and if strictly adhered to, such service is upheld as valid.

With respect to the argument of the Appellants that the Governor’s signature was grafted onto the second notice of revocation (Exhibit 8), it is the submission of learned counsel that where an allegation of fraud is made, same ought to be pleaded with its particulars on the pleadings. He relied on Order 15 Rule 3(1) of the 2004 High Court of Lagos (Civil Procedure) Rules. Learned counsel relying on Alagbe vs. Abimbola (1978) 2 SC 39; Agbaje vs. Ibru S.F. Ltd. (1972) 5 SC 50, 55; Ajomale vs. Yaduat (No. 1) (1991) 5 NWLR (Pt. 191) 266 submitted that the evidence of the Respondents on the issue of service of revocation notice was not controverted and as such it is deemed admitted. It is the final submission of counsel that the argument of the Appellants that

the two notices of revocation served did not have the name and address of Remi Amos Enterprises and particulars of registration of the land in dispute is a new issue which was not canvassed at the lower Court and as such, the leave of the Court ought to have been sought. He urged the Court to resolve issue 3 in favour of the Respondents.

In conclusion, the Respondents’ counsel urged this Court to uphold the judgment of the lower Court in favour of the Respondents and dismiss the instant appeal with cost.

The Appellants exercising their right of reply filed a reply brief on 18/11/2019 which was deemed on 9/12/2019. On issue 1 of the Respondents’ argument, it is the submission of the Appellants that in interpreting a document, the duty of the Court is to consider the document as a whole and not to isolate individual provisions for interpretation and also that the Court should interpret the intentions of the parties as embodied in the document. He relied on Dr. Sampson Uchechukwu Ogah vs. Dr. Okezie Victor Ikpeazu & Ors. (2017) LPELR-42372 (SC); Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 227; Archbishop Olubunmi Okogie & Ors. vs. Mrs. Margaret Epoyun

(2010) LPELR-9145 (CA). Furthermore, with respect to the contention of the Respondents that the Appellant raised new issues without the leave of Court, it is the submission of counsel that these issues are not new as same was raised by the Appellants at the lower Court but the lower Court glossed over these issues.

Much of the argument of the Appellants in the reply brief is just rehashing what is contained in their brief of argument and not a reply to new issues raised in the Respondents’ brief. The essence of a reply brief is not to beef up an Appellant’s argument contained in its brief of argument but rather to respond to new issues raised and canvassed in the Respondent’s brief. See Dairo vs. Union Bank & Anor (2007) 16 NWLR (Pt. 1059) 99; Ecobank vs. Honeywell Flour Mills Plc (2018) LPELR-45124 (SC); Ahmed vs. Nasiru NSCQR Vol. 56 2013 p 1. For this reason, I will not delve much into the argument of the Appellants in their reply brief.

From the facts of the case, as shown in the pleadings in the record of appeal, the evidence before the lower Court and the brief of argument before this Court, there is not

much dispute on the facts but rather on the application of the law to the facts. The Respondents revoked the right of occupancy contained in the certificate of occupancy over the subject property allocated to Remi Amos Enterprises, a company owned by the late husband and father to the 1st & 2nd Appellants respectively on the grounds that the company did not comply with the conditions of the allocation as contained in the allocation letter and the Certificate of Occupancy which are Exhibits 10 and 4 respectively. The main thrust of the Appellants’ case is that the Respondents revoked the certificate of occupancy wrongly as the said revocation did not fall in line with the provisions of the law specifically Sections 28 & 44 of the Land Use Act. On the other hand, the Respondents did not deny revoking the certificate of occupancy earlier given to the company but are firm on the legality of that act on the ground that the company breached or violated the conditions of the grant as contained in the certificate. The revocation was therefore proper and done in line with the provisions of the law. The reason advanced for the revocation is that in breach

with the condition of the allocation, the company did not fully develop the land for the purpose it was granted within two years and again, because it defaulted in the payment of ground rent as at when due. The Appellants denied these allegations. The lower Court after reviewing all the evidence, evaluated same and came to the conclusion that the Appellants defaulted in the payment of the ground rent and did not comply with the special condition of developing the land within two years and therefore dismissed the case of the Appellants.

The main issue therefore is; whether the lower Court was right in its decision, putting it clearly and sounding more specific and relevant; the question for determination in this appeal is; whether the Respondents were in order to have revoked the certificate of occupancy of Remi Amos Enterprises for the reason so stated. Even if there is enough evidence before the lower Court to have so held, there is this vexed issue as to whether the revocation was done in line with the law, that is, following due process. Without saying much it would appear, even if the Respondents prove that the Appellants breached the conditions for

the allocation, the Respondents have a further duty to show that the procedure adopted in revoking the certificate of occupancy falls in line with the law particularly as it relates to service. These are the real issues here. In determining this appeal, I will not try to formulate my issues for determination but will rather use the issues formulated in the brief of the parties in their briefs of argument. Both parties formulated similar issues but for simplicity and completeness, I will adopt the issues as formulated by the Respondents in their brief as mine. I reproduce them again for ease of reference:
1. Whether the Appellants are in breach of Clause 1 of Letter of Allocation dated 26/10/89 and Clauses 1 and 5 of the Certificate of Occupancy dated 26/10/89 registered as No. 20/10/1989U leading to the revocation of Appellants’ right of occupancy in respect of Plot 1 Maroko Foreshore Scheme in Eti-Osa Area of Lagos State (distilled from Ground 1 of the Appellants’ Notice of appeal).
2. Whether the lower Court was right to hold that Appellants have failed to place before the Court the approved building plans or the letter conveying the

said approval leading to the reasonable conclusion that there is no such plan or approval (distilled from Ground 2 of the Appellants’ Notice of Appeal)
3. Whether Notice of Revocation was properly served on Remi Amos Enterprises (distilled from Grounds 3, 4 and 5 of the Appellants’ Notice of Appeal).

I will now address the issues one after the other as produced above. The starting point is to state the provision of clause 1 of the letter of allocation (Exhibit 10) and clauses 1 & 5 of the certificate of occupancy (Exhibit 4). The relevant portion of Clause 1 of Exhibit 10 states that the land is to be used for tourism and recreation purposes. It is for 99 years with an initial ground rent of N2,504.00 with effect from 1st January 1994. It is also stated that the rent revision period is every 5 years. The special condition for the allocation in Clause 1 is “The plot must be fully developed within two (2) years of the effective date on the Certificate of Occupancy.” The property is not to be sublet without the written consent of the State Governor. Though the letter of allocation did not state the penalty for the

non-compliance with the terms of the grant, it stands to reason that the Appellants will obviously not receive a pat on the back for violating the provisions of clause 1 of the letter of allocation.
As it relates to the Certificate of Occupancy, Exhibit 4, clause 1(a) provides that the yearly rent of N2,504.00 commencing on 1st January 1994 must be paid in advance from the first day of each year. Clause 5 provides that within two (2) years from the commencement of the right of occupancy, the allottee in this regard the company is to erect and complete a building or specified detailed plans approved for such building. What is clear therefore in these clauses in both documents is that the Appellants must pay in advance the ground rent and also would have built or erected a building on the land within two years with value not less than N500,000. The Respondents’ case as stated above is that the company failed to meet these two conditions and therefore it is proper for them to have revoked the Certificate of Occupancy. Though these documents did not state the consequence of such violation, the Respondents relied on the Land Use Act, Cap L5 2004 Laws of

the Federation of Nigeria in revoking the certificate of occupancy. The relevant portion of the LUA is Section 28. This section gives the Governor the power to revoke a Certificate of Occupancy merely for overriding public interest and in so doing the public purpose for the revocation must be stated in the notice. See C.S.S. Bookshop Ltd vs. The Reg’d Trustee of Muslim Community in Rivers State & Ors (2006) 11 NWLR (Pt.992) 530; Adebo vs. Executive Governor of Oyo State (2018) LPELR-44734 (CA); Adegunle vs. Governor of Lagos & Ors (2019) LPELR-48013(CA).
The most relevant provision as it relates to this case is Section 28(5) of the LUA. I will reproduce the section as follows:
“28(5) The Governor may revoke a statutory right of occupancy on the ground of:
(a) A breach of any of the provisions which a certificate of occupancy is by Section 10 of this Act deemed to contain:
(b) A breach of any term contained in the certificate of occupancy or in any special contract made under Section 8 of this Act;”
While Exhibits 4 & 10 did not state any penalty for the breach of the terms and conditions contained therein,

the above section of the Land Use Act gives the Governor or a public officer duly authorized by him to revoke a right of occupancy when the holder of the right of occupancy violates the terms and condition in the certificate of occupancy. The Respondents have alleged that the certificate of occupancy was revoked because of breach of the terms and conditions in the certificate of occupancy. The Appellants, on the other hand, has alleged that the ground rent has been paid and they are not in breach of any terms of the allocation. The burden of proof in the lower Court is on the Appellants who alleged that the revocation was wrongly done to establish that by showing that the company has paid the ground rent as at when due. This is because the law on the burden of proof is clear and settled which is that the initial burden is on the party who will lose the case if no evidence is called. Specifically, it is the Appellants that are alleging that the revocation was wrongly done, the initial burden rests on them to establish that it was wrongly done and it is only after then the burden can eventually shift to the Respondents. In Nduul vs. Wayo & Ors (2018)

LPELR-45151(SC), the Supreme Court per Kekere-Ekun, JSC pages 51-53 drove home the above point in these words:
“The first question to consider in resolving this issue is: on whom does the burden of proof lie. Section 133 (1) and (2) of the Evidence Act 2011 provides:
133 (1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to presumptions that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with.
The meaning of “burden of proof” was explained by this Court in: Odukwe vs. Ogunbiyi (1998) 8 NWLR (pt. 561) 339 @ 353 D – H , as follows:
“…the phrase “burden of proof” in civil cases has two distinct and frequently confused meanings. This

comprises, firstly, of the burden of proof as a matter of law and the pleadings, usually referred to as the legal burden or the burden of establishing a case and, secondly, the burden of proof in the sense of adducing evidence, usually described as the evidential burden. While the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates. As Aniagolu, JSC explained the issue in Felix O. Osawaru Vs. Simon Ezeiruka (1978) 6 & 7 SC 135 at 145, “In civil cases, while the burden of proof in the sense of establishing the case, initially lies on the plaintiff …, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses.”
Thus, the general rule is that he who asserts must prove. The burden is therefore on the plaintiff to first adduce prima facie evidence in support of his case. Where a prima facie case is made out, the burden shifts to the defence to adduce counter evidence to sustain their defence. Where an allegation is made,

positively or negatively and it forms an essential part of a party’s case, the proof of such allegation rests on him. See also: Plateau State of Nig. & Anor. Vs A.G. Federation & Anor. (2006) 3 NWLR (Pt. 967) 345 @ 417 D – F; Imana Vs Robinson (1979) 3 – 4 SC (Reprint) 1. However, the evidential burden of proving particular facts may shift throughout the proceedings. See: Buhari vs. INEC (2008) 19 NWLR (pt. 1120) 246; Okoye vs. Nwankwo (2014) 15 NWLR (pt. 1429) 93; Odukwe vs. Ogunbiyi (supra).
Where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted, even on admission. The claimant is also not entitled to rely on the weakness of the defence, if any. It has been held that the rationale for this position of the law is that a claim for declaratory reliefs calls for the exercise of the Court’s discretionary powers in favour of the claimant. He must therefore place sufficient material before the Court to enable it exercise such discretion in his favour. See: Williams Vs. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145 @

152; Ogolo vs. Ogolo (2003) 18 NWLR (pt. 852) 494; Okoye vs. Nwankwo (supra).”
See also Akinbade & Ors vs. Babatunde & Ors (2017) 12 SC (Pt.III) 84; Iroagbara vs. Ufomadu (2009) 11 NWLR (Pt.1153) 587; Imana vs. Robinson (1979) ANLR 1.
The lower Court after reviewing the evidence before it came to the conclusion that the Appellant breached or breached the terms in Exhibits 4 & 10 which is the contract between the company and the Respondents. The lower Court on page 348 of the records (page 26 of the judgment) held thus:
“I must therefore conclude that Remi Amos Enterprises is in breach of the express terms stated in Clause 1 of Exhibit 10 being the letter of Allocation dated 27/09/89 and Clauses 1 and 5 of Exhibit 4 being the certificate of occupancy dated 26/10/89 registered as No 20/20/1989U. I therefore resolve issue No 2 against the Claimants.”
I cannot interfere with the above clear and unambiguous finding of the lower Court except it is perverse which means it does not correspond with the evidence and consequently has occasioned a miscarriage of justice. See Eyo vs. Collins NSCQR Vol. 45 2011 p.210;

Oyewole vs. Akande NSCQR Vol.39 2009 p. 207; Ajiboye vs. FRN (2018) 13 NWLR (Pt.1637) 430. The Appellants’ counsel in the brief has submitted that the above finding is perverse and that the lower Court did not consider the evidence of the Appellants before coming to that conclusion. Is this true?
The law on the burden of proof in this regard is not in doubt or in dispute as was read out earlier in this judgment. The simple way to ascertain this is to create an imaginary scale of justice and whichever party’s evidence tilt the weight on his side will have the upper hand in the case. The burden as earlier stated is on the Appellants in the lower Court to establish that the revocation was wrong and not done in line with the law.
It is important to establish this point from the beginning. Though the lower Court did not expressly deal with the issue of the burden of proof but by implication, the lower Court agrees that the burden of proof in compliance with the provision of the certificate of occupancy is with the Appellant. The lower Court on page 347 of the record which is page 25 of the judgment held as follows:

“With all due respect, Exhibits 11 and 6 clearly establish that a perimeter fence was erected on the subject property. But there is no shred of evidence that the value of the fence and a gate house was to the minimum value of N500,000 as required on Exhibit 4 and I so hold. In addition, there is no shred of evidence placed before this Court that building works specified in any detailed approved plans were carried out or constructed on the land in question. There is nothing to show that any other development (aside from the perimeter fence) was carried out on the land by Remi Amos Enterprises and or her lessee MONL and I so hold… They have failed to place before the Court the approved building plans or the letter conveying the defendants’ approval, leading to the reasonable conclusion that there is no such plan or approval. It is trite that unsubstantiated averments on pleadings are deemed abandoned and are worthlessness…”
The burden of proof is not static but shifts depending on who alleges and what fact needs to be proved. When the Appellants have proved that it complied with the provision of the law then the Respondents have the duty to

justify the revocation.
The two grounds for the revocation according to the Respondents are first, the non-payment of the ground rent as required by law as at when due and secondly, the inability of Remi Amos Enterprises Limited to develop the subject property within two years from the date of allocation. I must hasten to say here, that the terms in the certificate of occupancy and the letter of allocation have no legal force to empower the Governor to revoke the certificate of occupancy outside the provisions of the Land Use Act. Indeed it is the provisions of the Land Use Act that give life to the letter of allocation (Exhibit 10) and the certificate of occupancy (Exhibit 4). As earlier mentioned, the relevant provision is Section 28(5) of the Land Use Act. A Court of law cannot allow any term in the certificate of occupancy to be the basis for the revocation of a certificate of occupancy which is not recognized under the Land Use Act as the provision of the LUA is exhaustive in determining conditions upon which the certificate of occupancy of a holder can be revoked. See Adole vs. Gwar (2008) 3-4 SC 78. The point I am laboring to make, which the lower

Court on page 351 of the records (page 29 of the judgment) made clear is that the Governor in exercising the right of revocation must do so within the four walls of the Land Use Act. The lower Court correctly in my view held:
“….A fortiori, any revocation of a right of occupancy by the Governor for purposes outside those enumerated in Sections 1,28(2) and 28(5) of the Land Use Act (supra) would be unlawful, null and void and will be so declared by a competent Court on the complaint of an aggrieved party and I so hold.”
I have reproduced Section 28(5) of the Land Use Act above. It will not be out of place to reproduce Section 10 of the Land Use Act since based on the provision of Section 28(5) there is a connection between both sections. Section 10 provides thus:
“10. Every certificate of occupancy shall be deemed to contain provisions to the following effect:
(a) That the holder binds himself to pay to the Governor the amount found to be payable in respect of any unexhausted improvements existing on the land at the date of his entering into occupation:
(b) That the holder binds himself to pay to the

Governor the rent fixed by the Governor and any rent which may be agreed or fixed on revision in accordance with the provisions of Section 16 of this Act.”
By the combined reading of the provisions of Sections 10 and 28(5) of the Land Use Act, the Governor can revoke a certificate of occupancy when the holder of the certificate breaches the provisions in relation to the payment of ground rent. These Sections have nothing to do or made no mention of development of the property within two years. That not being part of the provision of Section 28 (5)(a) of the Land Use Act, it cannot be used as a ground for the revocation of the certificate of occupancy of the Appellants. However, there is a twist when Section 28(5)(b) is read.
Section 28(5)(b) made mention of contract under Section 8. I will now reproduce Section 8 of the Land Use Act:
“Statutory right of Occupancy granted under the provisions of Section 5(1)(a) of this Act shall be for a definite term and may be granted subject to the terms of any contract which may be made by the Governor and the holder not being inconsistent with the provisions of this Act.”

This section recognizes contracts entered between the Governor and the holder of the certificate of occupancy provided those terms are not inconsistent with the provisions of the Land Use Act. Though the duty to erect a building or have an approved building plan by the Appellant is not expressly stated in the Land Use Act as a ground for the revocation of the right of occupancy but Section 8 recognizes any other contract entered between the Governor and the holder of the right of occupancy. This section, therefore, recognizes the certificate of occupancy as the contract between the Governor and the Holder of the right of occupancy. It is on the strength of Section 8 that the requirement for the development of the property within two years comes into front burner among the conditions that the company, the holder of the certificate of occupancy must satisfy.
Having therefore established that the two terms upon which the Respondents revoke the certificate of occupancy of the company are recognized under the law, that is the Land Use Act, it is now time to turn to the evidence before the lower Court to determine whether the company actually breach the terms of the

certificate of Occupancy. The Respondents say it did while the Appellants holds the contrary view. Both of them cannot be right. One is right while the other is wrong, the question is, who is right and who is wrong? The lower Court agreed with the Respondents in holding that the Appellants breached Clauses 1 and 5 of the certificate of occupancy and Section 28(5) of the Land Use Act.
I will now look at the evidence in determining whether the Appellants breached the provision dealing with the payment of ground rent. The ground rent is to be paid in advance yearly and this can be without a demand. Section 28 of the Land Use Act did not make any provision that the ground rent should be paid in advance without demand notice. That notwithstanding since the LUA recognizes contracts between the parties, the requirement to pay the ground rent in advance without demand notice has become part of the condition to be satisfied. On whether the ground rent was paid by the company as at when due, the lower Court held that the only ground rent paid was for 2002 and that there was a default of payment between 1994-2003. There is evidence of payment of the sum of N837,760

as ground rent. This was paid as shown by a revenue receipt on 6/9/2006. This payment was made on 6/9/2006 after the revocation notice was given on 27/11/2005. The demand notice was made on 13/4/2004. The implication is that the payment was made almost 2years and 5 months after the demand notice was issued. It was made 1 year 7 months later after the revocation notice was issued. On the face of the evidence and if nothing more, it appears that the Appellants actually defaulted in the payment of the ground rent. The lower Court made the following finding on this point on pages 346-347 of the record (page 24-25 of the judgment):
“In the instant case, it is manifest that the only evidence of the payment of the yearly ground rent before the revocation notice dated 27/11/05, was issued is the payment made on 29/07/02 in the sum of N487,559:00 being the rent for the year 2002 as clearly depicted on Exhibit 2(a),2(b) and 12(b) and I so hold. A close look at the break down of Exhibit 12(b) clearly indicates that the sum of total sum of N487,599.00 paid on 29/07/02 was inclusive of the ground rent for the current year of 2002 in the sum of N101,343:00 and

outstanding ground rent to the tune of N316,549:00 and penalty in the sum of N54,873.90 and I so hold. I therefore find and hold as manifestly depicted on Exhibit 12(b) that Remi Amos Enterprises paid the ground rent for the year 2002, cleared the outstanding arrears as at the said date to the tune of a little over three hundred thousand naira and also paid the penalty sum imposed for the late payment to the tune of about fifty thousand Naira and I so hold…..A lump sum payment of N837,760:00 was made on 05/09/06 which represent the ground rent for the year 2004 in the sum of N202,865:00 together with the arrears of ground rents for the period 1994-2003 to the tune of N635,075:00 (making a total of N837,760:00. And I so hold. It is therefore manifest to this court that as at the date the title of Remi Amos Enterprises was purportedly revoked as shown on Exhibits 18 and 19 both dated 27/11/05, Remi Amos Enterprises had paid ground rent only once in 2002 and I so hold. The lump sum payment made as shown on Exhibit 7, 12(a), 13(b) & (c) was made post revocation on 05/09/06 and I so hold…Consequently, this Court accepts the clear evidence from the

avalanche of documentary evidence placed before it that as at the date of revocation of her statutory right of occupancy on 27/11/05, Remi Amos Enterprises had failed to fulfill her statutory obligation of paying rents yearly in advance on the 1st of January of each year without prior demand for the period 1st January 1994 to 1st January 2005 and I so hold. In fact Remi Amos Enterprises has made it a practice to consistently default in paying the ground rent yearly in advance. Since the obligation is to pay in advance on the 1st January of each year without waiting for a formal demand, it is the sole responsibility of Remi Amos Enterprises to take all necessary steps to discharge her obligations to the Government in the manner clearly stipulated by Exhibit 10 and 4 and I so hold.”
The lower Court is not mistaken as to its finding to the effect that the company defaulted in its obligation of paying the ground rent since 1994 and that it only paid for 2002 after the revocation notice was served. If this is correct then the Appellants would have been held to breach the terms of the certificate of occupancy and in line with Section 28(5), the Respondents

were in order to revoke the certificate of occupancy. The Appellants opined that the finding of the lower Court is inconsistent on this issue and does not reflect the evidence before it and therefore this Court should re-evaluate the evidence and correct the finding of the lower Court. The law on when and how an appellate Court can interfere with the finding of the lower Court is settled. An appellate Court such as this is not to interfere with the finding of the lower Court except it is shown that the finding does not correspondent or reflect the evidence adduced before the lower Court. This means that the evidence was wrongly evaluated and as a result has occasioned a miscarriage of justice. In such a circumstance, the appellate Court can re-evaluate the evidence to ensure justice is done. In Highgrade Maritime Services Ltd vs. FBN Ltd (1991) 1 NWLR (Pt.167) 290; (1991) LPELR-1364 (SC), the Apex Court per Wali, JSC at page 24 held:
“It is abundantly clear that the learned trial Judge had failed in his duty to properly consider the evidence before him which led him to drawing wrongful conclusions from the evidence he accepted. See Ebba v. Ogodo (1984)

1 S.C.N.L.R. 372; Okolo v. Uzoka (1978) 4 S.C.77 at 86 per Obaseki, J.S.C. In my view, the Court of Appeal was perfectly right and justified in reevaluating and re-considering the whole evidence which the learned trial Judge had failed to do, in order to arrive at a just decision. The findings of fact and the conclusions arrived at by Kolawale, J.C.A. in this case cannot be faulted. See Abinabina v. Enyimadu (1953) 12 W.A.C.A. 171 (1953) A.C 207 where the Court commented on interference by the Court of Appeal with the findings of fact of the trial Court as follows –
“1. In order to obviate the practice there must be some miscarriage of justice or violation of sound principle of law or procedure which result in a miscarriage of justice.
2. The term ‘miscarriage of justice’ means a prejudice to the chance of the other party to get the judgment of the Court in his favour.”
See also Amida & Ors v. Oshoboja (1984) 7 S.C.68 at 89; Woluchem v. Gudi (1981)5 S.C. 291 at 326 and Okuoja v. Ishola (1982) 7 S.C. 314 at 349.”
The point must be made that an appellate Court cannot replace his finding for that of the lower Court simply on the ground

that it would have arrived at a different finding. See Olatunde & Anor vs. Abidogun NSCQR Vol. 18 (2001) 325. The reason for the intervention is only when the finding does not reflect the evidence before the Court. This clearly restrains an appellate Court from going into an arena that it was not privileged to have been part of in the lower Court. The appellate Court is not permitted to go on a voyage of discovery to re-evaluate fact.
I have looked at the evidence before the lower Court, there is some interesting evidence, in my opinion, the lower Court did not consider which could be a proper defence for the non-payment of the ground rent as at when due. Before I come to that, let me look at the evidence in determining whether the lower Court was right in holding that the Appellants only paid for 2002 after the revocation notice was served. There is evidence that the Appellants paid the sum of N837,760.00 on 6/9/06 in response to the demand notice of 13/4/2004 for ground rents 1994-2003 and the ground rent for 2004. The arrears were N635,075 and the current year then that is 2004 is N202,685. The payment was in response to the notice. As observed

earlier, this payment was made almost 2 years 5 months after the demand notice was given to the Appellants and 1 year 7 months after the revocation notice. The counsel to the Appellants has submitted that there is some inconsistency in the finding of the lower Court. The lower Court seems to hold that the Appellants on 29/7/02 paid a lump sum of N487,559:00 representing outstanding arrears of N316,549:00 and the ground rent for 2002 which amounts to N101,343:00 and penalty for late payment which amounts to N54,873:90. On the same page of the judgment, the lower Court held that the lump sum payment of N837,760 was paid on 5/9/06 covering arrears of 1994-2004. This does not add up. It would appear that two payments were made; one in 2002 and another in 2006. I am not at liberty to inquire into how many payments were made. It appears clear that the lower Court agrees that before the revocation notice the Appellant has paid rent for 2002 and that payment also included payment in arrears which by necessary implication is to the effect that the Appellants were not in default in the payment of rent. Whether the Remi Amos Enterprises only paid once in 2002 or paid

twice that is 2002 and 2006 is not very fundamental for the purpose of this appeal. However, there is no evidence showing that the company paid anything in 2002. The duty is on the Appellants to show that the company had paid the ground rent as at when due. See Arigbabu vs. Oyenuga (2019) LPELR-47381 (CA). The only evidence before the lower Court for payment made on the ground rent by the company is the sum of N837,760 paid on 6/9/06 which was made after the demand notice and revocation notice. I am therefore at a loss as to which evidence informed the finding of the lower Court in that respect. That notwithstanding, the point is still that it is not fundamental whether the company paid once or twice for the overall determination of this appeal. I say this with all sense of responsibility because once there is breach by the Remi Amos Enterprises for the payment of ground rent, the Governor is entitled to revoke the right of occupancy under the certificate of occupancy. See Dantsoho vs. Mohammed (2003) 2 SC 42; Kandix Ltd & Anor vs. A.G. Commissioner of justice, Cross River State (2010) LPELR-4389 (CA).
The finding of the lower Court to the effect that

the Appellant had paid the ground rent in 2002 does not have the support of the evidence before this Court. That finding does not reflect the true state of the evidence before the lower Court. In the circumstance, I can interfere with the finding and re-evaluate the evidence. On the strength of the evidence before the lower Court, it is clear that the only lump sum the Appellants paid to the Respondents for ground rent is the sum of N837,760 which was based on the demand notice of 13/4/2004 (Exhibit 12(b)). This payment represented arrears not paid for the period of 1994-2003 and the current year of 2004. This payment made on 6/9/06 was made after the revocation notice. On the face of it, the Respondents’ are in order to revoke the certificate of occupancy since at some point the Remi Amos Enterprises was in default of the payment of the ground rent and therefore was in breach of the terms and condition in the certificate of occupancy and Section 28(5)(a) of the LUA. In Dantsoho vs. Mohammed (2003) 2 SC 42; (2003) LPELR-926 (SC), Katsina-Alu, JSC (as he then was) held on page 13-15 as follows:
“Power of the Governor to revoke rights

of occupancy. The power of the Governor to revoke rights of occupancy under the Land Use Act is provided for in Section 28. The relevant provisions thereof are Section 28(1), (2), (4), (5), (6), and (7). They provide that:
“28(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a statutory right of occupancy means –
(a) the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;
(b) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(c) the requirement of the land for mining purposes connected there with.
(4) The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be

required by the Government for public purposes.
(5) The Governor may revoke a statutory right of occupancy on the ground of-
(a) a breach of any of the provisions which a certificate of occupancy is by Section 10 of this Act deemed to contain;
(b) a breach of any terms contained in the certificate of occupancy or in any special contract made under Section 8 of this Act;
(c) refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under sub-section (3) of Section 9 of this Act.
(6) This revocation of a right of occupancy shall be under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub-section (6) of this section or on such later date as may be stated in the notice.”
The right of occupancy talked of herein, in my view, includes deemed rights of occupancy derived under Sections 34(2) and 36(4).
The power of the Governor to revoke a right

of occupancy must be for overriding public interest and for requirement by the Federal Government, for public purposes. So that any revocation for purposes outside the ones prescribed by Section 28 of the Act is against the policy and intention of the Act and can be declared invalid, null and void by a competent Court. See Osho v. Foreign Finance Corporation(1991) 4 NWLR (Pt. 184) 157. From the established facts of this case, it is crystal clear that the Governor did not act under the provisions of Section 28 of the Land Use Act.”
The Respondents, therefore, acted within the power they have under the LUA. The Appellants tried to introduce a game-changer in the sense that the delay in paying the ground rent was not their fault as the Respondents did not send demand notice until 2004 when they requested for same. The Respondents’ case, however, is that by the terms in the certificate of occupancy which the company consented to as part of the contract, the requirement for notice is not a condition for the payment. There is evidence before the lower Court as contained in the pleading and the evidence of CW1 & CW2 to the effect that Remi Amos

Enterprises could not pay as at when due because the Respondents did not serve them with the demand notice as at when due. There is also unchallenged evidence that the Appellants’ payment will not be accepted by the bank if the real amount is not paid and since there is provision for revision of the ground rent there is a need to get a demand notice to know how much is to be paid before paying same. The refusal of the Respondents to give demand notice to the Appellants was argued by the Appellants’ counsel as a good reason for not paying the ground rent as at when due. The demand notice that was issued by the Respondents was as a result of the request for same by the counsel of Remi Amos Enterprises. This evidence was not challenged and the law on this point is settled and it is that unchallenged evidence is deemed admitted and does not require further proof. See Egwumi vs. State NSCQR Vol. 53.3 2013 p.455; Matanmi & Anor vs. Dada NSCQR Vol.53 2013 p. 353.
This, in my opinion, could have been a game-changer as Remi Amos Enterprise could not pay for ground rent when it does not know how much the ground rent is for the year. Although the

certificate of occupancy shows that the ground rent should be paid in advance without notice but the need for notice became clear when in the letter of allocation and as evidence as shown that the ground rent is not static but occasionally reviewed. The letter of Allocation, Exhibit 10 specifically states that the rent review period is 5 years. The Appellant has testified that the bank will not receive the ground rent from Remi Amos Enterprises if the exact sum is not paid. Remi Amos Enterprise has no way of knowing the reviewed rent if no notice was served on them. There is no evidence of demand notice served on the Appellants’ company, Remi Amos Enterprises which was not paid before 2002. As good as this defence could have been and be a game-changer but it could not because the revision period is for 5 years. This means between 1994-1999 the ground rent is the amount stated in the letter of allocation which is N2,504.00. For this period, no demand notice will be required. There is no evidence that the Appellant paid the ground rent for the period where no revision was done. This is a clear violation. I make bold to say that the fact that

Governor’s consent was obtained for the sublease transaction does not foreclose in my opinion the power of the Governor to revoke the right of occupancy under Section 28 of the LUA. Before the revocation notice of 2005, two outstanding demand notices were served on the Appellants on 31/12/2001 and 13/4/2004. These notices, the Appellants did not deny were served on the company. There is no evidence by the Appellants to show that the demand notice of 31/12/2001 was honoured. Similarly, the demand notice of 13/4/2004 was not honoured until after the revocation notice after 1 year and 5 months. Clearly, the company is not in the habit of paying the ground rent as at when due even when a notice was served. This, in my opinion, is a good reason to revoke the certificate of occupancy under Section 28 (5) of the Land Use Act. Let me be clear on this, the Appellants had not been able to prove that the company paid the ground rent as at when due. The Appellant was clearly in breach of the provision of the law and therefore the Governor was in order to revoke the certificate of occupancy of Remi Amos Enterprises Limited. I will be discussing whether the revocation

notice was properly served later in this judgment. On this point alone, I resolve issue 1 in favour of the Respondents.

The lower Court has held on page 347 of the record and on page 27 of the judgment that the Appellants’ company has breached the provision of the certificate of occupancy which requires the company to “erect and complete on the land, buildings and other works specified in detailed plans approved or to be approved by the Military Governor or other officer appointed by the Military Governor, such buildings or other works to be the value of not less than N500,000.” This is the contract between the parties as contained in the certificate of occupancy. This contract is binding between the parties and any breach or violation of the contract has its consequences. See Alhaji Usman Dantata & Anor. vs. Mouktar Mohammed (2000) LPELR-925 (SC).
This now takes me to address issue 2 and in doing so I will look at whether the Appellants’ company breach the requirement of building the subject property within two years to the value of N500,000. While it is not an express requirement of the Land Use Act but since Section 8 of the Act

makes reference to any agreement or contract between the Governor and the holder of the certificate of occupancy, the requirement contained in the certificate of occupancy to develop the land within two years becomes a condition that the Appellants need to satisfy. The burden of proving that the condition is satisfied is on the Appellants who allege that the condition has been satisfied. They will be the losers if no evidence is adduced to show that the condition was satisfied. The lower Court has held that the Appellants did not discharge that burden as there is no evidence whatsoever in support of the assertion that Remi Amos Enterprises satisfied that condition. Is there any reason for this Court to interfere with that finding?
To answer that question, it is necessary to find out what kind of evidence will discharge that burden. The evidence which can discharge that burden that must emanate from the Appellants is such that in furtherance of the allocation the company has built a structure that is fitting for the purpose the allocation was made which is worth not less than N500,000. It is therefore not enough for the Appellants just to show that

it has made development on the land but must further show that the building was worth N500,000. There is a need to also show an approved plan for the building. Anything short of this will amount to a breach. This must be done within two years of the allocation. The subject property was allocated in 1994, this means by 1996 the building or the approved plan must have been in place. The lower Court that had the privilege of seeing the witnesses came to the conclusion that the Appellants could not prove this vital requirement. Though I had earlier quoted the lower Court in this judgment, for completeness however it will not be out of place to repeat what the lower Court said on page 25 of the judgment. This is what the Court said:
“With all due respect, Exhibits 11 and 6 clearly establish that a perimeter fence was erected on the subject property. But there is no shred of evidence that the valve of the fence and a gate house was to the minimum valve of N500,000 as required on Exhibit 4 and I so hold. In addition, there is no shred of evidence placed before this Court that building works specified in any detailed approved plans were carried out or

constructed on the land in question. There is nothing to show that any other development (aside from the perimeter fence) was carried out on the land by Remi Amos Enterprises and or her lessee MONL and I so hold… They have failed to place before the Court the approved building plans or the letter conveying the defendants’ approval, leading to the reasonable conclusion that there is no such plan or approval. It is trite that unsubstantiated averments on pleadings are deemed abandoned and are worthlessness….”
I have looked through the record of appeal and I cannot but agree with the lower Court. The Appellant did not produce any plan approved or even forwarded for approval to satisfy that condition. The only evidence is the request and approval given for the erection of a fence. In that approval, it was specifically stated that the permit given “does not cover any form of development on the site except fencing work only otherwise the 1986 building Regulation shall be invoked.” The other evidence of development made on the property is a gatehouse which value is not stated or known. The documentary evidence of the

gatehouse is not satisfactory to the lower Court. I also do not accept the evidence of the gatehouse as sufficient evidence for the development made in the property. I agree with the lower Court and I see no reason whatsoever to interfere with the finding of the lower Court that the Appellant could not discharge that burden placed on them and therefore there is a breach of the contractual relationship which contains the terms of development within two years.

The Appellants have argued that the issue of building plan was not an issue for consideration by the lower Court as it was not canvassed in the pleadings. I agree with the legal position that an amended process takes effect from the original process and so any fact pleaded in the original document but not pleaded in the amendment is not an issue for the Court to consider. See Dr. Yusuf Musa Nagogo vs. Congress for Progressive Change & Ors (2012) LPELR-15521 (SC). In the circumstance, though the argument was raised on the failure to show an approved building plan since it is not part of the pleading, the evidence and arguments come to no issue. See Haston (Nigeria) Limited vs. African Continental Bank Plc

(2002) LPELR-1359 (SC).
I resolve this issue in favour of the Appellants.

Having resolved that the Appellants breached the provision of Section 28 (5) of the LUA does not necessarily mean that the appeal will fail. This only means that the Respondents had the right to have revoked the right of occupancy of Remi Amos Enterprises. The substantive law is in favour of revoking the right of occupancy. This however, is not the end of the matter as the Land Use Act makes provision for the procedure to be adopted. The law is clear that once the law states a particular procedure upon which an act will be carried out, even if the act is justified if the procedure adopted does not follow due process, the act will be termed unlawful. See Ogualaji vs. A.G. Rivers State (1997) 6 NWLR (Pt. 508) 209 @ 224; Adesola vs. Abidoye (1999) 10 – 12 SC @ 141; Ahamefule vs. Imperial Medical Centre (2005) 5 NWLR (Pt. 917) 62.
The point being made here is that an ordinarily legal and justified act will become illegal and unlawful if the procedure adopted in carrying out that act is unlawful. There must therefore, be a synergy between the substantive law

and the procedural law for an act to be lawful and legal. Sounding more specific, though it is true that the Appellants breached the terms of the certificate of occupancy, the question of whether the procedure followed in revoking the right of occupancy is proper in law is a different issue entirely. This is issue 3 raised and it is as important as the earlier two issues. This is because the requirement of the law is that the procedure must be followed. The law requires that the Governor or his agent that revokes a right of occupancy must serve such notice on the holder of the right of occupancy. This is an important requirement of the law. In Nigeria Engineering Works Ltd vs. Denap Ltd & Anor (2001) 12 SC (Pt.II) 136; (2001) LPELR-2002 (SC) at page 30-32 held per Kalgo JSC thus:
“The powers of the Governor to revoke any right of occupancy must be exercised in the overriding interest of the public and more importantly the holder of the right of occupancy being revoked must be notified in advance of the revocation. The notice to the holder must state the reason or reasons for the revocation and this will give the holder the opportunity to make

any representation he or she wishes to make. Where the notice was not given or notice given was inadequate or not given in compliance with the provisions of the Act, the act of the exercise of revocation under Section 28 of the Act will be null and void. See Osho v. Foreign Finance Corporation (supra), where Obaseki JSC in considering the validity of the exercise of revocation of right of occupancy by a Military Governor under Section 28 of the Land Use Act had this to say an page 187 of the report:
“The purpose for which the power of revocation of a right of occupancy was conferred on the Military Governor of a State has been clearly set out in the Land Use Act. Any revocation for purposes outside the ones prescribed even though ostensively for purposes prescribed by the Land Use Act is against the policy and intention of the Land Use Act and can be declared invalid and null and void by a competent Court of law. The Court of Appeal having found on the evidence that the Military Governor revokes the plaintiff’s right of occupancy not in the manner and for the purposes prescribed by the Land Use Act was perfectly justified to have declared the revocation

invalid, and null and void.”
This fully applies to the situation in this case and I adopt it accordingly. Where proper and adequate notice was given to the holder as required by the Act, his right of occupancy shall be extinguished on receipt of such notice. See Section 28 (6) and(7) of the Land Use Act. By the provisions of Section 28 (6) and(7) of the Land Use Act, notice must be given to the holder before the revocation of his right of occupancy and the service of the notice must be in accordance with the provisions of Section 44 of the said Act.”
The strict compliance to the provision of the LUA in relation to the service of the revocation notice is not negotiable as it is an important requirement of the law. A revoking authority cannot afford to joke with the procedure as non-compliance will make the revocation even if done for the best reason unlawful. In Osho & Anor vs. Foreign Finance Corporation & Anor (1991) LPELR -2801 (SC), Obaseki, JSC held:
“To revoke a statutory right of occupancy for public purposes, the letter and spirit of the laws must be adhered to. Since revocation of a grant deprives the holder of his

proprietary right, the terms must be strictly complied with and strictly construction of the provisions made. See Bello v. The Diocesan Synod of Lagos & Ors. (1973) 3 S.C. p.131.”
For a revocation notice to be valid it must be issued in line with Section 28 and served in line with Section 44 of the Land Use Act. The adherence to those provisions is mandatory and any notice that does not comply strictly with the provisions is null and void. In Orianzi vs. AG Rivers State & Ors (2017) 2 SC (Pt.1) 106 the Apex Court held:
“Let me pause here and ask: At what point in time did the Rivers State Government take steps to comply with the mandatory provisions of Sections 28(1), (2) (6) and (7), and 44 of the Land Use Act to effectuate the proper revocation of the title of the Plaintiff/Appellant in the disputed property. The 1st Respondent (as the 1st Defendant) neither pleaded nor proved the facts establishing the prerequisites for proper revocation of the Plaintiff/Appellant’s title under Sections 28 and 44 of the Land Use Act. The relevant provisions of Sections 28 and 44 of the Land Use Act are herein below reproduced, that is -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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28.(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a Statutory Right of Occupancy means
(a) –
(b) the requirement of the land by the Government of the State or by a Local Government in the State, or the requirement of the land by the Government of the Federation for public purposes.
(c) –
(4) The Governor shall revoke a right of Occupancy in the event of the issue of a notice by or behalf of the President if such Notice declares such land to be required by the Government for public purposes.
(5) –
(6) The revocation of a right of Occupancy shall be signified under the hand of a public officers duly authorized in that behalf by the Governor and Notice thereof shall be given to the holder.
44. Any notice required by this Act to be served on any person shall be effectively served on him – (a) by delivering it to the person on whom it is to be served; or
(b) by leaving it at the usual or last known place of abode of that person; or
(c) by sending it in a prepaid registered letter addressed to

that person at his usual or last known place of abode; or
(d) in the case of an incorporated company or body, by delivering it to the Secretary or Clerk of the Company or body at its registered or principal office or sending it in a prepaid registered letters addressed to the Secretary or Clerk of the Company or body at that office; or
(e) If it is not practicable after reasonable inquiry to ascertain the name and address of a holder or occupier of land on whom it should be served, by addressing it to by the description of “holder” or “occupier” of the premises (naming them) to which it relates, and by delivering it to same person on the premises or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises”.
The issuance of the mandatory or statutory notices under Sections 28 and 44 of the Land Use Act being conditions precedent for proper revocation of a Right of Occupancy in or over a landed property, and the revocation of the said Right of Occupancy are matters of fact, which must be proved by the party asserting the revocation of a Right of Occupancy. The

1st Respondent herein, as the 1st Defendant at the trial, in his Amended Statement of Defence, acknowledged that the Plaintiff/Appellant had a Right of Occupancy over the disputed property which was revoked. This fact is pleaded in paragraph 6 of his Amended Statement of Defence, copied at pages 46 – 49 of the Records, thus –
6. Paragraph 15 of the Statement of Claim is denied and in furtherance (sic) the 1st Defendant shall contend at the trial that, the Plaintiffs Right of Occupancy having been revoked by the Military Governor, it was up to the Plaintiff to make claims for compensation.”
Section 28(7) of the Land Use Act stating the importance of the receipt of the revocation notice by the holder of the certificate of occupancy stated that “the title of the holder of a right of occupancy shall be extinguished on the receipt by him of a notice under subsection (6) of this section or on such later date as may be stated in the notice.” The service of the revocation notice on the Appellant in the case involved in this appeal is a major issue and may probably be a game-changer. The service of processes is fundamental in the judicial

process as non-service can rob a Court of jurisdiction and any procedure embarked on without service of the process amounts to a nullity. In First Bank of Nigeria Plc. vs. T.S.A. Industries Limited (2010) LPELR-1283 (SC) the Court held:
“Also non-service of process affects the jurisdiction of a Court in respect of any matter. Where a case comes before it by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction, the Court competently assumes jurisdiction. Proceedings conducted in a trial without due process being served on the parties or one of the parties amount to a nullity. The outcome of the proceedings will surely be against the principle of natural justice – affecting the competence of the Court which sat over the matter. Skenconsult Nig. Ltd. v. Ukey (1981) 1 SC 6.”
On issue 3, the relevant section of the Land Use Act is Section 44. I reproduce it for ease of reference:
“Any notice required by this Act to be served on any person shall be effectively served on him-
(a) by delivering it to the person on whom it is to be served; or
(b) by leaving it at the usual or

last known place of abode of that person; or
(c) by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; or
(d) in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office; or
(e) if it is not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served, by addressing it to him by the description of “holder” or “occupier” of the premises (naming them) to which it relates, and by delivering it to some person on the premises or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.
The relevant provision of the above provision is subsection (e). The Respondents had shown that they could not locate the premises of Remi Amos Enterprises to serve the revocation notice. I agree with the lower Court that Exhibit 12A which the

Appellants try to show is the address of the office is neither here nor there. I am also of the opinion that it does not matter whether the Respondents should have served the lessee with the revocation notice. What is important in my view is whether, from the evidence before the lower Court, the Court was right in holding that the revocation notice was properly served in line with the law in total compliance with the Land Use Act. For a party that is complaining of non-compliance as the reason for the revocation, it will be a shame for the Respondents to fall into the same pit, he has put the Appellants. If the Respondents are guilty of non-compliance with the provisions of Section 44 of the Land Use Act, then the appeal will succeed in spite of the Appellants breach of the terms in the certificate of occupancy. Proper service in line with Section 44 (e) of the Land Use Act will be addressing the notice to the holder by describing it as addressed to the “holder” or “occupier” of the premise with the address of the premises. This will have to be delivered to a person on the premises or by affixing it or a copy of it to some conspicuous

part in the premises. The duty is on the Respondents to prove the above requirement. The revocation notices are Exhibits 18 and 19. By the provision of the Land Use Act quoted above and as shown in the evidence at the lower Court, it is not sufficient just to paste a notice of revocation on the premises concerned, the notice must be addressed to someone. If the name is not known it should be addressed as “To the holder or occupier” of the premises with the address of the premises stated. The said notice must not just be pasted on the premises but a conspicuous place within the premises. What is clear in Exhibits 18 and 19 is that the notice was not addressed to anyone. It is in evidence that the notice is usually personalized. There is nothing personal about Exhibits 18 and 19 as it was not addressed to anyone although the address of the premises is there. From the evidence before the lower Court, the revocation notice was served by pasting in 2005. The DW1 joined the services of the Respondents and was posted to the ministry directly related to the matters in relation to management, monitoring, and control of waterfront schemes, that is the

Water-Front Infrastructural Development in 2007. It is DW1 evidence that the revocation notice was pasted on a conspicuous place in the premises. He admitted he had no evidence of the service of the revocation notice. There was no evidence of service of the two revocation notices. There is nothing whatsoever to show that the notices were pasted on the premises and in the circumstance it will be an overkill to determine whether they were pasted in a conspicuous place. In the light of the denial by the Appellants that they were served with the Revocation Notice, the Respondent should have done more than they did to prove that the notices were served in total compliance with Section 44 of the Land Use Act. The evidence of the DW1 in this regard is not solid in my view. The first notice was purportedly served in 2005 when he was not in the department and the second notice bearing the date was served in 2008 after he had joined the department. At this stage, I will have to disagree with the finding of the lower Court made on page 355 of the records which is page33 of the judgment. The lower Court held that:
“In addition I accept the evidence that the

notice of revocation was properly and duly served on Remi Amos Enterprises by pasting same on a conspicuous part of the parcel of land in dispute. Finally, for all the reasons earlier adumbrated with Sections 28(5); 28(6) and (7) and 44 of the Land Use Act (supra). I therefore resolve issue NO:3 against the Claimants.”
This finding in my candid opinion does not represent the evidence before the lower Court and therefore I will deviate or interfere with the above finding as it led to a miscarriage of justice. The Respondents have not been able to prove that the revocation notice was issued and served with due compliance with Section 44 of the Land Use Act. The non-compliance here is fundamental and cannot be treated as an irregularity or an issue of technicality. I have no difficulty in resolving this third issue in favour of the Appellants.

On this premise alone, this appeal has merit and it is allowed. The decision of his lordship O. Atinuke Ipaye (Mrs.) of the Lagos State High Court delivered on 30/11/2011 in the matter of Mrs. Wuraola Adekunle & Anor vs. Governor Lagos State & Ors Suit No: ID/1454/2006 is hereby set aside.

I award cost of N200,000 (Two Hundred Thousand Naira) in favour of the Appellants.

TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before today the lead Judgment just rendered in this appeal by my learned brother Ebiowei JCA. I endorse the reasoning and conclusion and adopt the Judgment as my own. I have nothing extra to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the leading judgment just delivered by my learned brother, EBIOWEI TOBI, JCA wherein he found the appeal meritorious on one of the three (3) issues set down for determination by Respondents, i.e. whether there was evidence of proper service of revocation notice issued by the Respondents with regards to the Right of Occupancy granted in favour of Remi Amos Nig. Enterprises.

While I agree with the decision reached on the said issue, and the failure to prove service of the Revocation Notice had fundamentally affected the legality of the revocation notice, I only want to add that by virtue of Section 43 of the Constitution, 1999 as amended, the right to acquire and own immovable

property in Nigeria, is a fundamental right guaranteed by the Constitution. In order to underscore the fundamental nature of this right, Section 44 (1) of the Constitution prohibits the compulsory acquisition of movable or immovable property in any part of Nigeria “except in the manner and for the purposes prescribed by Law”. The Land Use Act, supra is the applicable law in this instance and it has prescribed the procedure which the Respondents are required to follow in order to exercise the statutory powers conferred on the 1st Respondent by Section 28(1) and (2) of the Land Use Act, supra. Failure to strictly follow and comply with the said provision, will invariably lead to judicial invalidation of a Revocation Notice such as was issued in this case, and which the Respondents, by the evidence on the record of appeal, have not satisfactorily proved its service on the Appellants. The whole purpose of this, is to protect and preserve the rights guaranteed by Section 43 of the Constitution 1999 as amended from being violated by the Respondent in a purported exercise of powers conferred by the enabling statute, i.e. the Land Use Act, supra.
I agree with the leading

judgment of my learned brother that this appeal on this issue alone, is meritorious and should be allowed.

I too allow the appeal and I abide with the consequential orders as to costs made in the leading judgment of my learned brother, EBIOWEI TOBI, JCA.
Appeal is allowed.

Appearances:

A. Olubando, Esq. For Appellant(s)

Mrs. L. N. Nwokolo (CSF) For Respondent(s)