HOLLOWAY & ANOR v. SCOA (NIG.) PLC. & ORS (2022)

HOLLOWAY & ANOR v. SCOA (NIG.) PLC. & ORS

(2022)LCN/16803(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, August 03, 2022

CA/IB/318/2020

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

1. TAIWO HOLLOWAY 2. KEHINDE OGUNSOLA (Appealing For And On Behalf Of The Entire Salami Omokeye Goriola Family) APPELANT(S)

And

1. SCOA NIGERIA PLC. 2. OWODE MOTORS 3. CHIEF J. OWODE OYELAJA (Chairman/Managing Director Owode Motors Limited) 4. THE GOVERNOR OF OGUN STATE 5. THE ATTORNEY-GENERAL OF OGUN STATE RESPONDENT(S)

RATIO

THE DISTINCTION BETWEEN PRIMARY AND SECONDARY EVIDENCE

THE POSITION OF LAW ON FACTORS TO PROVE THAT A LAND WAS VALIDLY ACQUIRED OR REVOKED

Needless to say, the procedure for a valid acquisition of land or revocation thereof has been settled and it is for the Respondents or the person who claimed that the procedure was complied with to prove that:
1. The acquisition or revocation was done by the person who has the power under the law to do it. See Magiyegbe vs. Attorney General Northern Nigeria (1957) NLR 158.
2. Notice shall issue stating the purpose of acquisition or revocation when the purpose is for public purpose as prescribed at Section 51 of the Land Use Act. The decision in Osho vs. Foreign Finance Corporation (1991) 4 NWLR (pt. 184) 157 is instructive.
3. The Notice must be served on the holder or Occupier of the land in question by any of the means or methods prescribed under Section 44 of the Land Use Act.

4. The Notice must be proved to have come to the knowledge of the person concerned.

The Land Use Act at Section 28(1)(2)(b)(c) and 3(a)(b) provide thus:
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, sublease, 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 or oil pipelines or for any purpose connected therewith.
(3) Overriding public interest in the case of a customary Right of occupancy means-
(a) 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 requirements of the land by the Government of the Federation for public purposes of the Federation;
(b) the requirement on the land for mining purposes or oil pipelines or for any purpose connected therewith.”
The term ‘Public Purpose’ is defined at Section 51(1)(a)-(i) of the Land Use Act to include a variety of things set out at paragraph (a)-(i). Under paragraph (a) and (b) of Section 51(1) of the Land Use Act in particular, government can acquire land for general or public use as in projects or enterprises wholly owned or controlled by government or such other projects or enterprises in which government has shares or interest. In all of those any acquisition so made and put to use in the manner consistent with the items spelt out at Section 51(1)(a)-(i) can be said was made in the interest of the public and for public use. That is why the apex Court inLawson vs. Ajibulu (1977) 6 SCNJ, 17, 14, did not have any difficulty in saying so when the question arose as to whether the subject property had been put to use for public purpose. The Court held thus: –
“Having regard to the purpose for which the land was being applied by the 2nd Appellant before and after the acquisition it would appear to me that had the Courts below properly directed themselves on the definition, of “Public Purpose” in the law, they would not have concluded, as they did that Eruku’s case applied. Paragraphs (f)-(h) of the above definition allow government to acquire land required for the purposes stated therein. The carrying out of such purposes need, not be by government itself, it is under similar provisions in the Federal Statutes such as the Public Lands Acquisition Act (now replaced by the Land Use Act) that the Federal Government acquires land compulsorily and ceases them to oil companies in furtherance of their oil prospecting activities. It has not been suggested that such acquisitions were not for public purpose. The prevalent practice of Governments acquiring land compulsorily and leasing same to developers for housing estate, economic, individual or agricultural development must be seen in the same light, that is, the involvement of the private sector in the orderly development of both the urban and rural areas….” PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice of Ogun State, Abeokuta Judicial Division in suit No: AB/256/1996 and delivered on the 16th March, 2009. The 1st Respondent herein commenced that suit as the plaintiff at the High Court. The claim in the Writ of Summons and the Statement of Claim filed at the High Court at the time of commencement, was against two defendants, namely: (1) Owode Motors Ltd., and (2) Chief J. Owode Oyeleja, the 2nd and 3rd respondents respectively.

By an amended Writ of Summons and Statement of Claim the 4th and 5th Respondents were joined to the suit at the trial Court as the 3rd and 4th defendants hence the 1st Respondent as the Plaintiff, sought against the defendants the reliefs as follows: –
(1) Declaration that purported acquisition of the premises known as No. 83A Obafemi Awolowo Avenue Ibara Abeokuta property of the Plaintiff by the Government of Ogun State is unlawful, irregular null and void. In the Alternative Declaration that the purpose for which the acquisition of the premises was made has failed and as such the premises has reverted back (sic) to the plaintiff.
(2) An Order setting aside the Certificate of Occupancy No. 018027 dated 27th December, 1991 registered as No. 38 page 38 volume 442 of the Lands Registry Abeokuta granted by the Governor of Ogun State in favour of the First Defendant Alternatively, a sum of N10,000,000.00 (Ten Million Naira) being compensation for the acquisition of the plaintiff property No. 83A Obafemi Awolowo Avenue Ibara Abeokuta by the Ogun State Government.

In the said Amended Writ of Summons and Statement of Claim the 1st Respondent as Plaintiff, claim against the 1st and 2nd Defendants (2nd and 3rd Respondents) exclusively: (i) the total sum of N60,000.00 (Sixty Thousand Naira) as arrears of rent. (ii) forfeiture of the yearly tenancy of the defendant (iii) possession of the property (iv) Mesne profit on the property at the cost of N10,000.00 a year until possession is actually given up, and (iv) interest at the rate of 21% per annum on the yearly rent and Mesne profit.

Parties at the trial Court are on record as having filed and exchanged their pleadings and the case proceeded thereafter into trial.

The 1st Respondent as the plaintiff called evidence of three (3) witnesses i.e. PW1, PW2 and PW3; the 1st and 2nd defendants now the 2nd and 3rd Respondents called evidence of two (2) witnesses i.e. DW1 and DW2. The 3rd and 4th Defendants who are 4th and 5th Respondents respectively elicited evidence from two (2) witnesses that is to say, DW3 and DW4.

At the close of evidence of parties on both sides through their counsel, respectively addressed the trial Court and judgment reserved thereafter. In the judgment delivered on the 16th March, 2009, the trial High Court had reason to dismiss the case of the 1st Respondent as the Plaintiff, in its entirety.

The Appellants herein were not parties to the proceedings at the High Court. Nonetheless, with leave of this Court granted on the 25th February, 2020 the Appellants have appealed to this Court against that decision as interested parties for and on behalf of the entire Salami Omokaye Goriola family. The appeal of the Appellants to this Court is vide the initial Notice of Appeal of the 3rd March, 2020 comprising of Seven (7) grounds of appeal. However, the extant Notice of Appeal is the Amended Notice of Appeal filed on the 13th October, 2020 and deemed on the 13th January, 2022. The Amended Notice of Appeal has eight (8) grounds of appeal.

Briefs of argument have been filed and exchanged between the parties except the 1st Respondent, who did not file any brief. The record of appeal having been transmitted to this Court on 2nd October, 2020 was deemed on the 13th January, 2021. An Additional Record of Appeal was also transmitted to this Court on the 13th October, 2021 incorporating into it, the Amended Notice of Appeal comprising of Eight (8) grounds.

The brief of argument for the Appellants filed on the 13th October, 2021 was deemed filed on 13th January, 2021. The joint brief of argument for the 2nd and 3rd Respondents was filed on the 1st April, 2020 while the brief of argument for the 4th and 5th Respondents filed on the 21st April, 2022 was deemed properly filed and served on 12th May, 2022. The 1st Respondent did not file any brief of argument. In response to the brief of argument filed for the 2nd and 3rd Respondents and 4th and 5th respondents, the Appellants filed two (2) separate Reply Briefs on 9th May, 2020. The Reply Brief to the 2nd and 3rd Respondents was deemed on 12th May, 2022.

This case on appeal has as the subject matter, the land or property situate and known as No. 83A, Awolowo Avenue, Ibara, Abeokuta, Ogun State delineated in survey plan Number: C21/49 drawn by a licenced surveyor, Adekunle Coker. The facts of this case, from the perspectives of the Appellants, has it that the Appellants are members of Goriola family whose father owns the property situated and known as aforesaid.

It is the case for the Appellants that the portion of the land known as No. 83A, Awolowo Avenue, Ibara Abeokuta, Ogun State is covered by a lease Agreement (Exhibit A) which was registered as No. 37 at page 39 in Volume 9 of the Lands Registry Office in Ibadan (now Abeokuta) and more particularly delineated in Survey Plan Number C21/49 drawn by Adekunle Coker was leased to the 1st Respondent (SCOA Nigeria Plc) for 56 years by virtue of the said lease Agreement. The said lease agreement has as a term or clause, that the 1st Respondent shall not assign or underlet the premises or any part thereof of the property without the consent of the predecessor of the Appellants in title but the 1st Respondent went ahead to lease the property to the 2nd and 3rd Respondents.

It is the case for the Appellants that the 4th and 5th Respondents proceeded and acquired this land covered by the aforementioned lease agreement and granted same to the 2nd Respondent. Although, the 1st Respondent challenged Government’s acquisition of the land in Court, the Court nonetheless dismissed the case of the 1st Respondent on the holding that the rights of the Appellants in the land had been extinguished even when the Appellants were not parties to the decision in the case now on appeal. it is on account of this, that the Appellants have sought leave to appeal to this Court as interested Parties.

It appears to me that the 2nd and 3rd Respondents and the 4th and 5th Respondents respectively are not disputing the fact that the land, the subject matter in this appeal was compulsorily acquired by the 4th and 5th Respondents and the land or property granted to the 2nd Respondent by them.

Now, in the brief of Argument filed for the Appellants through their Counsel, are five (5) Issues formulated by them for determination of this Court namely: –
1. Whether the lower Court was right to admit the inadmissible oral evidence of DW3 and DW4 as secondary evidence of the purported acquisition of the Appellants’ property contrary to Section 90(1)(c) of the Evidence Act and hold based on same that the Appellants’ land in dispute had been properly acquired. (Ground 8).
2. Having regard to the failure of the 2nd to the 5th Respondents to establish through credible evidence that the procedure for acquisition of the Appellants’ family land was strictly followed as required by Law, whether the lower Court was right in holding that the procedure for acquisition of the land was duly followed and same was duly established by the 2nd to 5th Respondents. (Grounds 1, 2 and 3).
3. Whether the lower Court was right in holding that the purpose of the acquisition, of the land by the 4th and 5th Respondents had not been defeated by virtue of the subsequent allocation of same to the 2nd Respondent. (Ground 4).
4. Whether the lower Court was right in holding that the right of the 1st Respondent and the Appellants had been extinguished by the 4th and 5th Respondents notwithstanding the breach of Section 29(1) of the Land Use Act and Section 44(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which requires the payment of compensation which was not paid to the Appellants (Ground 7).
5. Having regard to the finding of the lower Court that the Appellants were the holders of the right of occupancy over the land subject matter of Exhibit “A”, whether it had jurisdiction to hold that the Appellants’ right to same had been extinguished without joining the Appellants to the suit. (Ground 6).

The Appellants have not formulated any Issue from Ground 5 of the amended Notice of Appeal and by this failure, the said ground 5 in the Amended Notice of Appeal is deemed as abandoned.

The 2nd and 3rd Respondents in their joint brief of argument, have identified three (3) Issues for determination of this Court namely: –
1. Whether the Procedure laid down under the Land Use Act was followed by the 4th and 5th Respondents in the acquisition of No. 83A, Obafemi Awolowo Avenue; Ibara, Abeokuta and the evidence in support was credible, relevant and satisfactory?
2. Whether the Learned Trial Judge was right in holding that the purpose in which the 2nd Respondent herein has put the land into use is within the purpose recognized under the Land Use Act and that the acquisition was duly executed and not been faulted?
3. Whether the Learned Trial judge was right in holding that the right of the Respondent herein and its Lessor (the present Appellant) had been extinguished at the time certificate of occupancy was issued to the 2nd Respondent notwithstanding the non-joinder of the Goriola and Doherty families (the said lessors)?

The 4th and 5th Respondents, in the same vein, have identified three (3) Issues in their brief of argument at pages 4 – 5 thus: –
1. Whether there was credible evidence before the trial Court when it held that the proper procedure was followed in acquiring the property.
2. Whether the purpose of acquisition of the property had been defeated and the right of the 1st Respondent and Appellants have been extinguished by the acquisition.
3. Whether the Appellants have any interest in property known as No. 83A Obafemi Awolowo Avenue Ibara Abeokuta worthy of protection by this Honourable Court.

I have considered the three sets of Issues identified by the parties in their respective briefs of argument. I am constrained however to adopt the five (5) Issues identified by the appellants in their brief with slight adjustments as follows: –
ISSUES FOR DETERMINATION
1) Whether the lower Court was right to admit the oral evidence of DW3 and DW4 as Secondary evidence of the acquisition of the property at No. 83A, Awolowo Avenue Ibarra, Abeokuta, Ogun State contrary to Section 90 (1) (c) of the Evidence Act and hold based on that evidence that the land or property the subject – matter of dispute, had been properly acquired? (Ground 8)
2) Whether the lower Court was right in holding that the procedure for acquisition of the land, subject matter of the suit was duly followed and same was duly established by the 2nd–5th Respondents? (Grounds 1, 2 and 3).
3) Whether the purpose of which the acquisition of the property was made by the 4th and 5th Respondents had not been defeated by reason of the subsequent allocation of the same land to the 2nd Respondent? (Ground 4).
4) Whether the lower Court was right in holding that the right of the 1st Respondent and the Appellants had been extinguished by the 4th-5th Respondents notwithstanding the failure by the 4th-5th Respondents to pay compensation as required under Section 29(1) of the Land Use Act and Section 44(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria? (Ground 7).
5) Whether the Appellants are necessary parties to the suit to warrant an order for their joinder at the trial Court.

Issue No. 1
Whether the lower Court was right to admit the oral evidence of DW3 and DW4 as Secondary evidence of the acquisition of the property at No. 83A, Awolowo Avenue Ibarra, Abeokuta, Ogun State contrary to Section 90 (1) (c) of the Evidence Act and hold based on that evidence that the land or property the subject – matter of dispute had been properly acquired? (Ground 8).
Learned Appellants’ Counsel in arguing Issue No. 1 invited our attention specifically to the evidence of DW3 and DW4 on record and the finding made at the trial Court at pages 189-190, 199 and at page 205 to submit that the trial Court had relied on the oral evidence of DW3 and DW4 as Secondary evidence of proof of the acquisition of the land, the subject matter of the suit whereas the law only allows the contents of document to be proved by Primary or Secondary Evidence. We were referred to Sections 85, 86, 87(a) 89(e) and (f) and 90(1) (c) of the Evidence Act and the decision of this Court in PDP vs. Kawuwa (2015) LPELR–26044 (CA) at pages 52–55 and to that extent, the evidence of DW3 and DW4 is inadmissible to prove of the contents of public documents on the acquisition of the property at No. 83A, Obafemi Awolowo Avenue Ibara, Abeokuta. This Court is urged to intervene in the circumstance and reappraise the evidence on the printed record which, it is alleged, the trial Court had failed to do before making its findings.

In response to this submission of the appellant, the 2nd and 3rd respondents referred us to paragraphs 3 of the amended statement of defence for the 4th and 5th Defendants (4th and 5th Respondents) and to paragraph 3 of the amended statement of defence of the 2nd and 3rd Respondents wherein it was averred, respectively that:
(i) That the Government of Ogun State had sometimes in March, 1979 acquired a parcel of land at Ibara Area of Abeokuta and,
(ii) That the 1st Respondent as Plaintiff knew that the site which was then known as No. 83A Obafemi Awolowo Avenue, Ibara, Abeokuta had been acquired by Ogun State Government.

In reference therefore to the pleadings of the defendants and evidence elicited from defence witnesses it was argued that the procedure laid down for the acquisition of the land at No. 83A Awolowo Avenue had been complied with and to that extent, we were urged to resolve the issue in favour of the 2nd and 3rd Respondents. The 4th-5th Respondents made submissions similar to those of the 2nd and 3rd Respondents. It is argued for the 4th and 5th Respondents that the 1st Respondent and the Appellants have knowledge of the acquisition of the property in question by the Government of Ogun State. We were urged to hold that the lower Court’s reliance on the evidence of DW1, Dw2 DW3 and DW4 on the acquisition of the land or property under reference was proper.

Resolution of Issue No. 1.
Contents of a document can be proved by either Primary or Secondary Evidence: refer to Sections 85, 86, 87(a), 89 (e) and (f) and 90(1)(c) of the Evidence Act.

On this point, there is no argument. Primary evidence means the document itself hence the contents of a document can be proved by the production of that document when the same is tendered and admitted as such. See: Ogu v. M.T. & M.C.S. Ltd., (2011) 8 NWLR (pt. 1249)345; Densy Industries Nigeria Ltd., vs. Uzokwe (1999) 2 NWLR (pt. 591) 392; PDP & Anr. Vs. Kawuwa & Anr. (2015) LPELR–26044 (CA) pages 52-55.

Secondary evidence is defined under Section 87 of the Evidence Act to include the items listed under paragraphs (a)–(e) of Section 87 of the Act. Secondary evidence will be resorted to only where Primary evidence is not available. Refer to Section 88 of the Evidence Act, but in those circumstances, secondary evidence must be properly certified to be admissible. See: Anatogu vs. Igwe Iweka II (Eze Obosi) & Ors. (1995) 8 NWLR (pt. 415) 547. Daggash vs. Bulama (2004) 14 NWLR (pt. 892) 144.

Now, the trial Court at pages 189-190, 194, 199 and at page 205 of the record of Appeal had held thus: –
At pages 189-190 of the record –
“Now, the 2nd set of Defendants (that is, 3rd and 4th defendants) claim there was a Government Acquisition of a very large area (over 11 hectares) in Ibara by Ogun State Government for commercial purpose in 1979 and 1980. Record of same have been destroyed in a fire incident which occurred in the Lands registry in December 2001 that is, about 21 years after the said Government Acquisition. DW3 gave evidence of the said acquisition. Likewise, DW4.
As a matter of fact, the plaintiff is not contesting the fact of Government’s Acquisition. What it is contesting is the regularity of same. It has been alleged that the plaintiff was never served with Notice of acquisition”.

At page 199 of the record:
“Acquisition took place in 1979 and 1980 by which time the 1st defendant had not moved into the premises……..”

At page 205 of the record:
“I have found earlier on that acquisition was duly executed and has not been faulted. Having not been faulted. I hold that the right of plaintiff and its lessor had been extinguished by the state.”

It is worthy of note that these findings of fact made at the lower Court on the Issue of Acquisition of the subject matter by 4th-5th Respondents was based on the oral evidence of DW3 and Dw4 among others and upon questions which the lower Court placed reliance on and indeed acted upon as can be seen from the extract of the judgment referred to above. The question now is whether the lower Court can so rely and act on the oral evidence of DW3 and DW4 to reach the conclusion that Government (4th and 5th respondents) had compulsorily acquired the subject matter of this appeal?

The procedure for compulsory acquisition of property by government has been set out in the Land Use Act at Section 28(6)(7). In other words,
(i) The revocation of a right of occupancy is signified under the hand of a public officer duly authorised in that behalf by the relevant authority.
(ii) Notice of revocation shall be given to the holders of tittle to signify that his title over the property has been extinguished.
(iii) The Notice of revocation shall state the purpose for which the revocation was made i.e either for public purpose or in breach of terms or conditions of grant.
(iv) Whether the holder has been compensated for his land so compulsorily acquired?

Granted that DW3 and DW4 in their respective evidence have indicated that the procedure set out above were complied with, can that evidence be taken as satisfying the requirements set by law at Sections 85, 86, 87, 88, 89 (e) and (f) and 90(1)(c) of the Evidence Act? I do not think so. Evidence of DW3 and DW4 do not fall within the class of primary or secondary evidence by which the 4th and 5th Respondents were expected to prove their case of necessary compliance with Section 28(6) (7) of the Land Use Act of 1978, notwithstanding their claim that the file in which the Notice of acquisition was contained, had been engulfed in a fire incident in their office.
The evidential burden on the 4th and 5th respondents to prove the acquisition of the subject matter in dispute lie with them. Unless proper and satisfactory evidence was led to prove the acquisition of the subject matter, then their claim to lawful acquisition must fail. Certainly, oral evidence of DW3 and DW4 fall short of this proof and the trial Court wrongly relied on those pieces of evidence of DW3 and DW4 to come to the conclusion that government (4th and 5th Respondents) had acquired the subject matter of this appeal.

The 4th and 5th Respondents have referred us to Exhibits O and O1 as supporting their stance that the land in dispute had indeed been acquired by the government. The said Exhibit O and O1 among others, were tendered through the 1st Respondent at the trial Court. It is the letter written by a solicitor on behalf of the 1st Respondent. It is the letter of demand requesting of the 3rd Respondent to pay up his rent arrears. Exhibit O-O1 therefore is not evidence of the acquisition of the subject matter of this appeal as the 4th and 5th Respondents seem to suggest. What is more, the trial Court in its judgment did not say so or allude to Exhibits N, N1, O and O1 as evidence of proof of the acquisition of the subject matter in this appeal. The Court rather, heavily relied on the oral evidence of DW3 and DW4 to reach the conclusion that government had indeed acquired that property. That conclusion was based on the oral evidence of DW3 and DW4 which evidence is inadmissible to prove the acts of acquisition.

The person on whom lies the evidential burden to prove any fact in issue has the duty to call relevant evidence in order to discharge that duty even if it requires of him to put the party on the other side on Notice to produce that or those documents which the party needed to prove his case. In the instant case, the 4th and 5th Respondents in their bid to prove a case of acquisition of the property the subject of dispute can have recourse to this procedure and invite the 1st Respondent or any other person to which Notice of acquisition and other documents were served to produce them in Court for the purpose of being tendered as evidence pursuant to Section 89(c) and 91 of the Evidence Act to establish the fact that government (4th–5th Respondents) indeed acquired that land and in doing so observed due process. The 4th and 5th Respondents did not discharge this burden at the trial Court given the printed record before us. This burden duty is not discharged merely because the evidence of certain persons i.e 1st Respondent and 3rd Respondent who testified as witnesses, had not been challenged and on account of the fact that they knew or had knowledge that the property had been acquired by the government, cannot in any my view, be taken as the required evidence needed to prove acts of the acquisition of the subject property by the government.

The 4th and 5th Respondents have further contended that the 1st Respondent being in privity with the Appellants, the latter cannot feign ignorance of the acquisition of the subject property by the government. The 1st, 2nd and 3rd Respondents are all being imputed with the knowledge of the acquisition of the subject property made by government. This imputation notwithstanding, the 4th and 5th Respondents still have a duty to prove a case of due acquisition of the subject property. This burden duty has not been discharged by them hence Issue No. 1 is resolved in favour of the Appellants and against the 2nd, 3rd, 4th, and 5th Respondents.

Issue No. 2
Whether the lower Court was right in holding that the procedure for acquisition of the land, subject matter of the suit was duly followed and same was duly established by the 2nd–5th respondents?
In arguing issue No. 2, learned counsel for the Appellants took the affirmative approach in providing answers to this question when it was argued on their behalf that the land, the subject property had not been acquired by due observance of the procedure of compulsory acquisition of land by government. We were referred to the condition the acquiring authority must observe before acquisition of property can be said was complete. He referred to the decision of this Court in Yakubu vs. Impresit Bakolori Plc., (2011) 6 NWLR (pt. 1244) 564, 581. It is argued that the lower Court relied on the oral but inadmissible evidence of DW3 and DW4 to conclude that necessary statutory Notices had been served or effected on the Appellants for the acquisition of the subject property. We were referred to the evidence of DW3 and DW4 on record wherein it was submitted that the evidence to prove the compulsory acquisition of the subject property was not adduced except the inadmissible evidence of DW3 and DW4 who claimed to have lost those documents due to outbreak of fire in their office. He argued that the incident of fire outbreak in their office was also not proved. It is argued that none of the persons who served those statutory Notices on the Appellants or the 1st Respondent was called to testify and this, it is argued is fatal to the case of the 2nd to 5th Respondents. In reference to Section 41 of Land Use Act, it is argued that the 4th to 5th Respondents did not establish any of the means of services listed in that Section and which of the methods the 4th and 5th Respondents had utilized in the service of those Notices and on whom the Notices were served. In further reference in Section 44 of the Land Use Act and Section 44 of the Constitution of Federal Republic of Nigeria, 1999, it is argued that failure of compliance with those provisions in the compulsory acquisition of property is failure of compliance with due process as held in Goldmark (Nigeria) Ltd., & Ors. Vs. Ibafon Co. Ltd., & Ors. (2012) LPELR–9349 (SC) page 71-72. We were urged to resolve issue No. 2 in favour of the Appellants and hold that the subject property has not been properly acquired.

In response to issue No. 2 on the question whether the 4th and 5th Respondents observed the proper procedure for the compulsory acquisition of the subject property, it was submitted for the 2nd and 3rd Respondents that the 4th and 5th Respondents had observed same. Learned Counsel for the Respondents has set out in his brief of argument the Notices that government (4th and 5th Respondents) was required to issue and he submits that the required notices were given. He referred us to the averments in the statement of defence of the 4th and 5th Respondents at paragraph 3 and those of the 2nd and 3rd Respondents also at paragraph 3 where they averred respectively that government had acquired a parcel of land in Ibara Area of Abeokuta. We were referred to the evidence of PW1 and PW2 and DW2 and DW4 as evidence led to support the averment and the fact that the land owner was served with Notice of acquisition. We were referred to the decision in Akomolafe v. Guardian Press Ltd. (2010) 1 MJSC 93, 105–109; Omisore & Anr. Vs. Aregbesola & Ors. (2015) 5-7 MJSC 1, 64. Relying therefore on the pleadings of the 2nd–3rd Respondents, the pleadings of the 4th and 5th Respondents and evidence of witness before the trial Court as aforesaid, it was argued for the 2nd and 3rd Respondents that the procedure for acquiring land compulsorily had been complied with by government and that this issue be resolved in favour of the 2nd and 3rd Respondents.

The 4th–and 5th Respondents’ response on this point follow the same pattern as done by the 2nd and 3rd Respondents. The submission of the 4th–5th Respondents on this point is at pages 5-11 of their brief of argument. It is contended by them that the requisite Notices were served on the land owner and that the land owners made claims for compensation only afterwards.

Resolution of Issue No. 2
While addressing Issue No. 1, I dovetailed into issue No. 2. I wish to adopt my opinion under issue No. 1 for issue No. 2.
Needless to say, the procedure for a valid acquisition of land or revocation thereof has been settled and it is for the Respondents or the person who claimed that the procedure was complied with to prove that:
1. The acquisition or revocation was done by the person who has the power under the law to do it. See Magiyegbe vs. Attorney General Northern Nigeria (1957) NLR 158.
2. Notice shall issue stating the purpose of acquisition or revocation when the purpose is for public purpose as prescribed at Section 51 of the Land Use Act. The decision in Osho vs. Foreign Finance Corporation (1991) 4 NWLR (pt. 184) 157 is instructive.
3. The Notice must be served on the holder or Occupier of the land in question by any of the means or methods prescribed under Section 44 of the Land Use Act.

4. The Notice must be proved to have come to the knowledge of the person concerned.

5. There is credible and satisfactory evidence by the Respondent stating his compliance with the procedure for the acquisition of the property. Of course, the acquiring authority should establish by evidence, the fact that compensation was paid to the person concerned in relation to the land acquired.

Although DW3 and DW4 in their respective evidence have claimed that those statutory Notices were served, but for the fire incident that engulfed the office where the relevant documents were kept, those Notices of acquisition could not be tendered in evidence. The question still remains as to who it was who SERVED those NOTICES and on WHO and by what means or methods those Notices were served.

By the evidence on record DW2, DW3 and DW4 among others did not themselves effect the service of those Notices of acquisition. The question therefore is who effected or served the Notices? Should the person who played that role not be called upon to give that evidence in satisfaction of the provision of Section 44 of the Land Use that as to the manner those Notices were served? It is for this shaky or faulty foundation in the evidence of the 2nd to 5th Respondents that informed the 1st Respondent vide Exhibit O-O1 among other documents to join issues with them as to the propriety or otherwise of the acquisition of the property which the 4th and 5th Respondents claimed to have done, given the case presented by them at the trial Court. Again the question whether or not the 4th and 5th Respondents paid compensation for the land for which they claim they have acquired is another issue on the front burner.

DW3 speaking under cross-examination by Mr. Onabawo at page 93 of the record has said that compensation has not been paid to any one in respect of the subject property.

Ownership of property by individual or collective ownership of property is guaranteed under the law and the same is protected from being denied or taken away compulsorily without compensation by virtue of Section 44(1) (a)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), wherein it is provides thus:
“(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –
(a) requires the prompt payment of compensation therefore and
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria.”
It is thus, obligatory of the 4th and 5th Respondents in cases of compulsory acquisition of the property of individuals, to comply and pay the person some form of compensation for that which was taken away from him and failure of which would have nullified the acquisition if any, for disobedience in the procedure for acquisition set down by the law. Thus, the Supreme Court in the case of Provost, Lagos State College of Education (LACOED) vs. Edun (2004) All FWLR (pt. 201) 1628 at 1633-1634, the Court observed thus: –
“Government has the constitutional right to acquire compulsorily, property on payment of compensation. That was the provision of Section 40 of the 1979 Constitution .… It is now Section 44 of the 1999 Constitution. There is no argument about that constitutional power. There are statutes which provide for the procedure of acquiring property by the Government. Government is expected to comply and it must as a matter of law comply with those statutes Government has enacted. Therefore, where Government disobeys its own statutes by not complying with the laid down procedure acquisition of private property, it is the duty of the Courts to intervene against the Government and in favour of the private citizen.”
The same apex Court in Goldmark Nigeria Ltd., & Ors. Vs. Ibafon Co. Ltd., & Ors. (2012) LPELR–9349 (SC) held at page 71-72 thus: –
“This Court had always emphasized that government has the right to compulsorily acquire property on payment about such Constitutional power. There are statutes which provide for the procedure of acquiring property by the government. Government is expected to comply with those statutes which it has enacted. Where government disobeys its own statutes by not complying with the laid down procedure for acquisition of property it is the duty of the Courts to intervene between the government and the private citizen.

Given the evidence in the printed record before us, it is inconceivable for the lower Court to have relied on the evidence of DW3 and DW4 as evidence of compliance with the procedure for valid acquisition of the subject property for reason already adumbrated in this exercise, hence, I am inclined to resolve issue No. 2 in favour of the Appellants and against the 2nd to 5th Respondents.

Issue No. 3
“Whether the purpose of the acquisition of the property by the 4th and 5th Respondents had not been defeated by reason of the subsequent allocation of the same land to the 2nd Respondent? (Ground 4).”
It has been contended for the Appellant that the purpose for which government can acquire the property of a citizen is to utilize same for public purpose but where government acquires that property and allocate it to private persons for commercial use, defeat the very essence upon which the acquisition was made. In this regard, it was argued that the 4th and 5th Respondents cannot acquire the subject property for public purpose and grant it to the 2nd and 3rd Respondents. Learned Appellants’ counsel to this end has faulted the findings of the lower Court at page 200 of the record of appeal who refused to set aside the grant or issuance of Certificate of Occupancy to the 2nd Respondent in respect of the subject property for use for commercial purposes, without regard to the purpose for which the subject property was acquired initially was for public purpose, if at all there was a valid acquisition of that property. That has been the position of the 1st Respondent who was the plaintiff at the trial Court. In refusing to set aside the grant of Certificate of Occupancy made to the 2nd Respondent, the trial Court alluded to the decision of the apex Court in LAWSON vs. AJIBULU (1997) 6 SCNJ, 17, 24 where the Court held that the public purpose for which government acquires the land of a private person need not be by government itself. Learned Appellants’ Counsel has argued that the decision in Lawson vs. Ajibulu (supra) had been misapplied by the trial Court in that the allocation of the subject property by the 4th-5th Respondents to the 2nd and 3rd Respondents did not defeat the purpose for which same was acquired.

Learned Appellants’ counsel, in his further submission attempted to distinguish LAWSON’s case (supra) from the current case in that there is no partnership agreement or arrangement between the 2nd, 3rd, 4th and 5th Respondents herein. It is argued that the private business of the 2nd and 3rd Respondents cannot constitute partnership between the 2nd to 5th Respondents as it is in the case of Lawson vs. Ajibulu (supra). On this point we were referred to Dumez Nigeria Plc., vs. Ademoye & Ors. (2014) LPELR–23518 (CA). We were urged to, by the reasoning of this Court in Dumez Nigeria Ltd. Vs. Ademoye (supra) to hold that the wrong application of the decision of the apex Court in Lawson’s case (supra) by the lower Court led to the perverse decision. We were further referred to the case inChief D. O. Ereku vs. the Military Governor, Mid-Western State of Nigeria & Ors. (1974) LPELR–1156 (SC) which it is argued, is applicable to the instant case, on the facts hence it is submitted for the Appellants that the acquisition by the 4th and 5th Respondents for the private needs of the 2nd and 3rd Respondents was unlawful in that the enterprise belonging to the 2nd Respondent, even though might be beneficial, it cannot be regarded as being for public purpose of the state. We were urged to disturb the findings of the trial Court on this point and resolve issue No. 3 in favour of the Appellants.

The 2nd and 3rd Respondents argued to the contrary when it was submitted in their brief that the purpose for which the subject property was put to, was not different for that recognised under the Land Use Act and to that extent, it was argued that the lower Court was right in his summing up at page 192 in which the Court also relied on LAWSON VS. AJIBULU (supra). We were urged to affirm the decision of the lower Court and resolve Issue No. 3 in favour of the 2nd and 3rd Respondents.

The 4th and 5th Respondents both recognise the objective behind the compulsory acquisition of the subject property. It is for use for public purpose failing which the acquisition stands nullified. It is the view of the 4th and 5th Respondents in their brief of argument that the subject property was so put to public use even though the 2nd and 3rd Respondents are private individuals who operate their enterprise as commercial venture. Learned counsel for the 4th and 5th Respondents in reliance therefore on the decision in Lawson v. Ajibulu (1997) LPELR–1766 (SC) argued that notwithstanding the fact that the subject property was compulsorily acquired by government for public use, does not mean that private individuals in the private sector are excluded from participating in it.

According to the learned counsel for the 4th and 5th Respondents, the fact of compulsory acquisition by government of the subject property finally extinguishes the existing rights of the holder if only the holder was put on Notice. To that end, it is argued for the 4th and 5th Respondents that the allocation made to the 2nd-3rd Respondents was in order and the trial Court rightly held it to be so. We were urged to resolve this issue in favour of the 2nd and 5th Respondents.

Resolution of Issue No. 3
The Land Use Act at Section 28(1)(2)(b)(c) and 3(a)(b) provide thus:
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, sublease, 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 or oil pipelines or for any purpose connected therewith.
(3) Overriding public interest in the case of a customary Right of occupancy means-
(a) 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 requirements of the land by the Government of the Federation for public purposes of the Federation;
(b) the requirement on the land for mining purposes or oil pipelines or for any purpose connected therewith.”
The term ‘Public Purpose’ is defined at Section 51(1)(a)-(i) of the Land Use Act to include a variety of things set out at paragraph (a)-(i). Under paragraph (a) and (b) of Section 51(1) of the Land Use Act in particular, government can acquire land for general or public use as in projects or enterprises wholly owned or controlled by government or such other projects or enterprises in which government has shares or interest. In all of those any acquisition so made and put to use in the manner consistent with the items spelt out at Section 51(1)(a)-(i) can be said was made in the interest of the public and for public use. That is why the apex Court inLawson vs. Ajibulu (1977) 6 SCNJ, 17, 14, did not have any difficulty in saying so when the question arose as to whether the subject property had been put to use for public purpose. The Court held thus: –
“Having regard to the purpose for which the land was being applied by the 2nd Appellant before and after the acquisition it would appear to me that had the Courts below properly directed themselves on the definition, of “Public Purpose” in the law, they would not have concluded, as they did that Eruku’s case applied. Paragraphs (f)-(h) of the above definition allow government to acquire land required for the purposes stated therein. The carrying out of such purposes need, not be by government itself, it is under similar provisions in the Federal Statutes such as the Public Lands Acquisition Act (now replaced by the Land Use Act) that the Federal Government acquires land compulsorily and ceases them to oil companies in furtherance of their oil prospecting activities. It has not been suggested that such acquisitions were not for public purpose. The prevalent practice of Governments acquiring land compulsorily and leasing same to developers for housing estate, economic, individual or agricultural development must be seen in the same light, that is, the involvement of the private sector in the orderly development of both the urban and rural areas….”
The lesson to be learnt from the decision in Lawson’s case supra is that in the determination of the question whether or not the land compulsorily acquired by government was put to public use or not, attention should be focused more on the nature of use to which the land acquired was put into. Notwithstanding that the land was leased or allocated to private persons or private enterprises, if the use to which the land was put to was in the public interest in line with paragraphs (a)-(i) of Section 51(1) of the Land Use Act, then it is for public purpose. The apex Court in Lawson’s case (supra) distinguished that case from the decision in Ereku vs. Military Government of Midwestern State & Ors. (1974) 10 SC 59, 66. The facts in Ereku’s case (supra) put briefly are as follows: The appellant sued at the Warri High Court claiming among others, a declaration that the Notice of acquisition of the land under the Public Lands Acquisition, Cap 105 by the 1st defendant/respondent was unconstitutional, ultra vires, null and void. The 1st defendant had leased the acquired land to a company. It was the contention of government that the lease was in accordance with public purpose because the purpose of the company was to advance the industrial and economic life of the state and that “Public Purpose” included whatever resulted in the advantage to the public. The plaintiffs contended that a lease to a private company was not for a public purpose of the state. Although, the trial Court held that the acquisition of land made by Government was valid, the Supreme Court invalidated the acquisition on the ground among others that “an acquisition by government for the need of private corporation or person is unlawful since by no stretch of imagination can one say that the enterprises of the Mc. Dormott Overseas Inc, beneficial it might be, can be regarded as being for “public purpose of the state” as contemplated by the law. The apex Court declare the lease to the company as invalid and the acquisition declared ultra vires.

The 4th and 5th Respondents acquired the subject property and granted same to the 2nd Respondent, a Limited Liability Company, whose workshop is at No. 83A Obafemi Awolowo Avenue, Ibara Abeokuta. The 2nd Respondent as a Limited Liability Company is engaged in the business of buying and selling and repairs of Motor Vehicles and uses a portion of the subject property as their garage, workshop and vehicle sales deport hence the outfit was run as a commercial or private enterprise by the 2nd and 3rd respondents to whom the 4th and 5th Respondents issued documents of title in terms of Exhibit D having acquired that land from the original holders or owners of the property if at all.
The enterprise run by the 2nd Respondent cannot by any stretch of imagination be said, was run and operated for public purpose. The 4th and 5th Respondents (Government of Ogun State) had utilized its statuary powers to compulsorily acquire that subject property only to allocate that same land to private persons or individuals for their use as private enterprises. This is an abuse of the statutory powers conferred on the 4th and 5th Respondents. They had failed to act in good faith. See: Bello & Ors vs. The Diocesan Synod of Lagos State & Ors. (1973) All NLR 196; Dumez Nigeria Plc. Vs. Ademoye & Ors. (2014) LPELR–23518 (CA) at pages 38-39; Ereku vs. Military Government of Mid-Western State & Ors. (supra). The decision in LAWSON VS. AJIBULU (supra) is not applicable to the issue at hand hence, the 4th and 5th Respondents wrongly allocated the subject-property to the 2nd and 3rd Respondents to render the Certificate of Occupancy (Exhibit D) issued to the 2nd Respondent, invalid, null and void. I so hold. Consequently, issue No. 3 is resolved in favour of the Appellants and against the 2nd, 3rd, 4th, and 5th Respondents.

Issue No. 4
Whether the lower Court was right in holding that the right of the 1st Respondent and the Appellant had been extinguished by the 4th and 5th Respondents notwithstanding the failure of 4th and 5th Respondents to pay compensation as required under Section 29(1) of the Land Use Act and Section 44(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria? (Ground 7).
In arguing issue No. 4, learned Appellants’ counsel faulted the findings made at the trial Court to the effect that by the compulsory acquisition of the subject-property by the 4th and 5th Respondents, the rights which the Appellants and 1st Respondent had over the land had been extinguished. Learned Appellants’ counsel invited our attention to the fact of non-payment of compensation to the owners of the land and the implications of non-payment of compensation by the 4th and 5th Respondents. It is argued that the payment of compensation completes the exercise of acquisition by government, that is to say, if it is established that proper acquisition of the subject property had taken place. Relying therefore on the decisions in Yakubu vs. Impresit Bakolori (2011) 6 NWLR (pt. 1244) 564, 581; Dumez Nigeria Plc vs. Ademoye (2014) LPELR–23518 (CA); N.H.R.I. vs. Ayoade (1997) 11 NWLR (pt. 530) 541; Kukoyi vs. Aina (1999) 10 NWLR (pt. 624) 633 and Section 29(1) of the Land Use Act, Section 44(1)(a) of the Constitution of Federal Republic of Nigeria 1999 as amended, we were urged to hold that the rights of the Appellants and 1st Respondent over the subject property had not been extinguished.

The 2nd and 3rd Respondents argued per contra on this point stating that, with the issuance of Notice of Acquisition, the right of Occupancy of the holder of subject-property i.e. the 1st Respondent including the Appellants’ right to that property had been extinguished more so, upon the issuance of Certificate of Occupancy (Exhibit D) in favour of the 2nd Respondent to use the land for commercial purpose. The Court is urged to resolve this issue in favour of the 2nd and 3rd Respondents.

The 4th and 5th Respondents’ submission on this point is similar to the position taken by the 2nd and 3rd Respondents. It is argued that with the acquisition of the subject property by Government, the rights of the 1st Respondent and those of the Appellants over the land had been extinguished so far as due process in the service of Notices of acquisition had been not been observed by them. The holder, it is argued, is only entitled to compensation after the acquisition.

Resolution of Issue No. 4
The right of Occupancy of the holder of the property compulsorily acquired by Government can be said to have been extinguished upon acquisition under certain conditions, namely
(i) Proper procedure was observed in terms of issuance of relevant statutory Notices of acquisition.
(ii) The acquisition made is for overriding public interest or for public purpose.
(iii) There was payment of compensation to the holder whose property was compulsorily acquired.
Given the case on hand in this appeal, I have taken the position already that there has been failure of compliance with the procedure for valid acquisition on the part by the 4th and 5th Respondents so long as Notices of acquisition were not proved by them to have been served on the 1st Respondent and the Appellants.
Secondly, the Law and indeed the Constitution of the Federal Republic of Nigeria 1999 (as amended) require of the acquiring authority to compensate Land Owners whose property have been acquired in line with Section 44(1)(a) (b) of the Constitution. Thirdly, the land must have been acquired for overriding public interest or for public purpose.

DW3 who testified for the 4th and 5th Respondents at the trial Court admitted unequivocally, that compensation had not been paid to the owners of the subject-property. Be it noted that it is the payment of compensation to the owners of the land that makes the process of acquisition complete and valid. This not having been done by the 4th and 5th Respondents, their claim to having acquired the land remain a mirage, hence the rights of the holders or the owners of the subject property cannot in those circumstances be said to have been extinguished. This issue is resolved in favour of the Appellants and against the 2nd, 3rd, 4th, and 5th Respondents.

Issue No. 5
Whether the Appellants have any interest over the property at No. 83A Obafemi Awolowo Avenue, Abeokuta and if so whether the lower Court was right to hold that the appellants’ right to same had been extinguished who were not joined to the suit as necessary parties?
In arguing this point, it was contended for the Appellants that they are the title holders of the land described in Exhibit A and the lower Court having recognised this fact ought to have ordered for the joinder of the Appellants to the suit. It is argued that the lower Court ought not to have made pronouncements on the rights of person(s) who are not parties to the suit hence the trial Court was wrong, when it held that the rights of the Appellants relative to the subject property had been extinguished. It is argued that the non-joinder of the Appellants to the suit before the adverse findings made at the trial Court against the Appellants who are not parties to the suit at trial Court had occasioned miscarriage of justice so far as the Appellants were not heard on the question whether their rights over the subject property covered by Exhibit A had been extinguished. We were referred to the decision in Oyeyemi & Ors. Vs. Owoeye & Anr. (2017) LPELR 41903 (SC) and Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended).

It is argued that the Appellants not being parties at the trial Court, the order made affecting them was a nullity and this indeed nullified the entire proceedings before the trial Court. We were referred to Oyeyemi & Ors vs. Owoeye & Anr. (supra); Ovunwo & Anr vs. Woko & Ors. (2011) 7 SCM 207 at 231-232. NURTW & Anr. Vs. RTEAN & Anr. (2012) 35CM, 178–179. We were urged to resolve issue No. 5 in favour of the Appellants.

The 4th and 5th Respondents in their joint brief of argument submitted per contra, that the Appellants have no interest whatsoever to protect let alone to enforce same in respect of the property at No. 83A Obafemi Awolowo Avenue, Ibara Abeokuta. He argued that the lease covered by Exhibit A granted to the 1st Respondent by Salami Omakoye Goriola, the grandfather of PW3, Idayat Adeola Goriola, the present head of the family of Goriola was not granted by Goriola family. He said this finding of the trial Court was correct and since that finding of the trial Court has not been appealed against by the Appellants it is deemed as having been accepted by them. It is further argued that if anything at all; it is PW3 who inherited the subject property from her grandfather that has interest in the property covered by Exhibit ‘A’.

It is further argued that the Appellants cannot initiate this appeal having been caught by the doctrine of standing-by with reference to the decision in Babayeju vs. Ashamu (1998) 9 NWLR (pt. 567) 546, 555. It is further submitted that PW3 is equally guilty of standing by who rather than initiate action to protect her interest chose only to stay away to leave the 1st Respondent fight her cause while she appeared as a witness only to the 1st Respondent. We were referred to the case in Achor vs. Adejoh & Anr (2010) 6 NWLR (pt. 1991) 537, 572.

The Appellants filed a reply brief on points of law to the brief of argument filed for the 4th and 5th Respondents wherein the Appellants questioned the propriety of Issue No. 3 formulated in the 4th and 5th Respondents’ Brief of Argument which states: –
“Whether the appellants have any interest in property known as No. 83A Obafemi Awolowo Avenue, Ibara Abeokuta worthy of protection by this Honourable Court”.

Learned Appellants’ Counsel in his reply brief has argued that issue No. 3 formulated by the 4th and 5th Respondents in their brief of argument did not emanate from any of the grounds of appeal contained in the Appellants’ Amended Notice of Appeal hence the 4th and 5th Respondents cannot argue the said issue No. 3 having not filed a cross-appeal or Respondent’s Notice on the Issue of Appellants’ interest in the subject property. We were urged to so hold.

Arguing this point in the alternative, learned Appellants’ counsel submitted that the pronouncement made at the lower Court stating that the Appellants no longer have interest over the subject property worthy of protection was merely obiter dictum and not the ratio decidendi of the decision of that Court. He referred us to the decision in Assorted Foods & Integrated Beverages Ltd & Ors vs. AMCON & Anr (2020) LPELR 50327 (CA) to the effect that a Respondent who has not cross-appealed or filed a Respondent’s Notice, cannot formulate issue for determination outside the grounds of appeal.

It is argued that the Appellants are the successors in title to Salami Omokeye Goriola, the person through whom the subject-property covered by Exhibit A was leased to the 1st Respondent hence, the Appellants, it is argued, are eminently qualified to maintain this appeal as Appellants, given the fact that the trial Court at page 197 of the record of appeal recognized the interest of the Appellants’ predecessors in title. Learned Appellant’s counsel referred us to earlier submission made by the 4th and 5th Respondents in their brief of argument where they contended that any member of the family can sue to protect the interest of family property and by reason of which they also cited the decision in Babayeju vs. Ashamu (1998) 9 NWLR (pt. 567) 546 and Achor v. Adejoh (2016) 6 NWLR (pt. 1191).

Resolution of Issue No. 5
The starting point should be with regard to issue No. 3 raised and contained in the 4th and 5th Respondents’ Brief of Argument. The said issue read thus at page 5 of the 4th and 5th Respondents brief of argument:
“Whether the Appellants have any interest in property known as No. 83A Obafemi Awolowo Avenue Ibara, Abeokuta worthy of protection by this Honourable Court”.

Issues formulated for determination of Court must be derived from grounds of appeal and it shall be so indicated or stated. This Court and the apex Court have most times reiterated on the need to indicate the ground or grounds of appeal from which an issue for determination is derived see: Nigeria Forth Ports Plc vs. B. P. PTE Ltd (2012) 18 NWLR (pt. 1333) 454, 480. Pharma-Deko Plc vs. Financial Derivates Coy. Ltd. (2014) LPELR- 24047 (CA). Furthermore, a ground of appeal as well as issue distilled therefrom and argument proffered in respect thereof, must arise from the judgment of the lower Court being appealed against. Issue No. 3 formulated by the 4th and 5th Respondents in their brief of argument has not been shown to have been derived from any of the grounds contained in the Amended Notice of Appeal filed on the 13th October, 2021 to render the same incompetent and liable to be struck out. See: CCB Plc vs. Ekperi (2007) 3 NWLR (pt. 1022) 493, 509. Assuming for the moment that Issue No. 3 under reference is valid, the question again is which of the eight (8) grounds of appeal can issue No. 3 be associated with, regard being had to the fact that a ground of appeal to be valid, must relate to the decision appealed against and should constitute a challenge to the ratio of the decision on appeal.
The issue of whether the Appellants have any interest in the property known as No. 83A Obafemi Awolowo Avenue Ibara, Abeokuta worthy of protection, is not the basis of the decision of the trial Court leading to this appeal and there being no such ground of appeal before us, issue No. 3 is uncalled for hence same is incompetent. It must be struck out along with arguments canvassed under it in the brief of argument for the 4th and 5th Respondents. I so order.

Having taken that position, I think I can revert to the issue before us as to whether the Appellants are necessary parties to the suit to warrant an order for their joinder at the trial Court? This is issue No. 5.

I have considered the argument and submissions made by counsel to the Appellants in their brief of argument at pages 25. The trial Court in the course of its judgment found as follows at page 196 of the record thus: –
“I have gone through all these because the Plaintiff wants this Court to declare the Government Acquisition invalid and irregular particularly due to non-service of Acquisition Notices on it. The law requires that Notice be served on the holder of a right a right of occupancy. See Section 28(6) and (7) of the Land Use Act. Section 50 (1) defines a Holder as a person entitled to a right of occupancy and anyone to whom a right of occupancy has been validly assigned.
Exhibit “A” does not qualify the Plaintiff as a holder under the Land Use Act. It could at best be an Occupier. A lessee under Lease Agreement certainly is an occupier and not a holder and that is what the Plaintiff has shown in Exhibit “A”. He might be entitled to compensation but certainly he has no legal basis to seek a revocation of Government· Acquisition being a mere occupier.”

By that finding of the lower Court, it can be safely concluded that
(i) The 1st respondent herein are mere occupiers of the subject property and not holders within the meaning of the Land Use Act
(ii) That holders of a right of Occupancy are entitled to receive services of Notice of Acquisition
(iii) Mere Occupants of subject property are not so entitled to Notices of acquisition and the 1st respondent being only the lessee of the subject property, is an occupier of the land or premises covered by Exhibit ‘A’
(iv) That an Occupier of the subject property in the likes of the 1st respondent may be entitled to some form of compensation of the land occupied by him.
(v) An occupier of the subject property has no legal basis so seek revocation of Governments acquisition.

It has been argued for the Appellants that so long as holders of the subject property are entitled to Notices before acquisition of land by government, it then becomes necessary to join holders of the subject property before any pronouncement can be made by Court affecting their rights.

On this premise, it was argued that the lower Court’s finding that the rights of the holders over Exhibit ’A’ had been extinguished without hearing from those holders, was a breach of their right to fair hearing guaranteed under Section 36(1) of the Constitution, hence, the Appellants are necessary parties to the suit at the trial Court who were not heard before a decision was taken affecting their interest. We were urged to so hold.

The Appellants are members of the Goriola family, being the descendants of their predecessor by name: Salami Omokoye Goriola who by reason of the agreement in Exhibit ‘A’ leased that property (Exhibit ‘A’) to the 1st Respondent, the lessee and the occupant of the subject property at the time government took decision to acquire that property. Therefore, as holders of the subject property, no valid decision of Court can be taken in their absence, especially where the decision affects the interest of the holders of the subject property, as in the appellants herein: Green vs. Green (1987) LPELR–1338 (SC). They are necessary parties to the suit at the trial Court. Consequently, the holding or finding made at the trial Court that upon the subject property being acquired, the holders’ rights over that property was completely extinguished, is a violation of the Appellants’ right to fair hearing especially where there is no proof by the 2nd–5th Respondents that such holders were served with Notices of acquisition of the subject property. Issue No. 5 must be resolved in favour of the Appellants and against the 2nd, 3rd 4th and 5th Respondents, hence this appeal succeeds and same is allowed. The judgment delivered at the High Court of Ogun State, Abeokuta Judicial Division on the 16th March, 2009 vide suit No. AB/256/1996 is set aside and in its place is entered this judgment.

I make a further order as follows:
(i) An Order is hereby made setting aside the acquisition of the property situated and known as No. 83A, Obafemi Awolowo Avenue, Ibara, Abeokuta, Ogun State delineated in Survey Plan Number C21/49 drawn by one Adekunle Coker (a Licensed Surveyor).
(ii) An Order is hereby made setting aside the Certificate of Occupancy No. 018022 (Exhibit D) dated 27th October, 1991 registered as No. 38 page 38 Vol. 442 of the Land Registry granted by the 4th and 5th Respondents to the 2nd and 3rd Respondents.
(iii) It is ordered that the Appellants are persons entitled to the Certificate of Occupancy over the property situated and known as 83A, Obafemi Awolowo Avenue, Ibara, Abeokuta, Ogun State, delineated in Survey Plan Number, C21/49 drown by one Adekunle Coker (a Licensed Surveyor).
(iv) Ordered accordingly.

MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother Sa’idu Tanko Hussaini, JCA. I agree with the reasoning and conclusion that this appeal succeeds and same is allowed. I abide by all the consequential orders in the lead judgment.

ABBA BELLO MOHAMMED, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother SAIDU TANKO HUSSEIN, JCA. I am in full agreement with the reasoning and conclusions contained therein, all of which I adopt as mine.

I only need to stress the constitutional provision in Section 36(1) of Chapter IV of the 1999 Constitution to the effect that in the determination of a person’s civil rights and obligations the Court or Tribunal must grant such a person a fair hearing within a reasonable time. The consequence of failure to grant such a fair hearing is that the entire proceedings including any judgment or order which may have resulted therefrom is null and void. See: UMEANO & ORS v ANAEKWE & ANOR (2022) LPELR-56855(SC), per Kekere-Ekun, JSC at pages 13–14, paras. E–B.
Thus, once an appellate Court finds that there is a breach of the right to fair hearing in the proceedings conducted by the lower Court, it must allow the appeal: CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD v AKINGBADE (2016) LPELR-40437(SC), per Onnoghen, JSC (as he then was) at pages 21–22, paras. A – A.

In the instant appeal, where the printed record clearly shows that the trial Court decided that the Appellants’ ownership right over the land in dispute had been compulsorily acquired by the 4th and 5th Respondents and therefore extinguished, without joining the Appellants and affording them the opportunity to be heard, the entire proceedings leading to that decision is null and void, having been conducted in breach of the Appellants’ fair hearing rights. It is for this and other reasons elaborately stated in the lead judgment that I also allow this appeal and abide by all the consequential orders made in the lead judgment.

Appearances:

Femi Falana, (SAN) with him, A. Isola – Osubu, Esq. For Appellant(s)

Olarewaju Obadina, Esq. for 1st Respondent.

K. Abiodun Ogunjunmi, Esq. with him, Philip Ogunwoye, Esq. 2nd and 3rd Respondents.

T. G. Famoroti, Esq. (Miss) for 4th and 5th Respondents. For Respondent(s)

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