ATTORNEY GENERAL OF KWARA STATE & ANOR v. ENGR. IBRAHIM ISSA KOLAWOLE
(2018)LCN/11881(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2018
CA/IL/55/2016
RATIO
COURT AND PROCEDURE: WHERE AN ACTION IS ADJUDGED STATUTE – BARRED
“The established legal principle remains that where an action is adjudged as being statute barred, the plaintiff who might have had a cause of action, loses the right to enforce the cause of action by judicial process. In clear words, the action commenced after the expiration of the time limited by law is not maintainable, the Act having removed the right of action and the right to judicial relief, leaving the plaintiff with a bare and empty cause of action which he cannot enforce. See Odubeko vs. Fowler (1993) 7 NWLR (pt. 308) 637; Eboigbe vs. NNPC (1994) 5 NWLR (pt. 347) 649; Araka vs. Ejeagwu(2001) FWLR (pt. 36) 830; Obiefuna vs. Okoye (1961) All NLR 357; Egbe vs Adefarasin (1987) 1 NWLR (pt. 47) 1, Ajayi vs. Princess (Mrs) Olajumoke Adebiyi & 3 Ors, (supra), NPA vs. Lotus Plastics (supra) and Nikagbatse vs. Slater (2016) ALL FWLR (pt. 835) 250 @ 265.” PER HAMMA AKAWU BARKA, J.C.A.
EVIDENCE: BURDEN OF PROOF
“First of all is the complaint as to who bears the evidential burden of proving an asserted fact. On this, the law is certain in that he who asserts has the duty of adducing evidence in proof of the assertion as this accords with Section 131 of the Evidence Act, 2011. In the instant case, the respondent having asserted that the land was re-allocated to a third party, must adduce evidence in that regard. See Egharevba vs. Osagie (2009) 18 NWLR (pt. 1173) 299 SC, where it was held that; 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 any presumptions that may arise in the pleadings.” PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES:
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. ATTORNEY GENERAL OF KWARA STATE
2. DIRECTOR GENERAL, BUREAU OF LANDS – Appellant(s)
AND
ENGR. IBRAHIM ISSA KOLAWOLE – Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
The instant appeal emanated from the decision of Justice A. O. Akinpelu of the Kwara State High Court, Ilorin judicial division, in suit No: KWS/366/2015 between Attorney General of Kwara State and one Or. vs. Engr. Ibrahim Issa Kolawole; delivered on the 7th of June, 2016 wherein the claimants/respondents claim succeeded in part as declared at page 176 of the record to wit:
i. The Claimant is declared the legal owner of the Right of Occupancy of the claimant over Plot 19, Block 7, TPO 119, with ref: No: LAN/ARO/RES/1848 at Offa Urban Area of Kwara State covered by Certificate of Occupancy No. KW. 11057 of 19th of November, 2004 issued by Kwara State Government.
ii. Consequently, the purported reallocation of the land in issue by the defendants to another person without having first revoked the title of the claimant is invalid, void and of no consequence.
iii. An order of perpetual injunction is made restraining the defendants, their agents, privies and/or any person acting through them from further trespassing into the land and/or further disturbing the claimant from enjoying the property described as Plot 19, Block 7, PTO 119 with ref no; LAN/ARO/RES/18148 situate at Offa Urban Area of Kwara State.
The facts germane to the present appeal initiated by Originating Summons and deciphered from the affidavit evidence placed before the lower Court appears two fold. The claimant now Respondent told his story thus:
That in the year 1999, he applied to the Kwara State Government for the grant of a plot of land identified as No: 19, Block 7, TPO 119, at Offa Urban Area of Kwara State. That application was granted in principle wherefore he paid the fees required of him and commenced development by depositing on the plot of land, 5000 blocks, 13 loads of granite, 100 bags of cement, 400 pieces of Iron rod, 10 loads of gravel and sharp sand all worth one million and five hundred naira. That he was issued a certificate of occupancy in November, 2004. Continuing his story, claimant now states that around July 2006 he discovered an unknown person who trespassed onto his land and destroyed the items deposited on the land and erected a perimeter fence on the land.
Upon his complaining at the office of the 2nd defendant he was told that his land had been re-allocated to another person and he was therefore promised allocation of another land; and he was issued a letter to that effect. He then paid some necessary fees for the second land allocated to him also identified as plot 6AB/KS2 TPS/MISC 119 with Ref: No LAN/ARO/RES. 29421. That he rejected the 2nd plot showed to him by the agent of the 2nd defendant principally because it was a mere 650 meters as against his former plot which is 2906.06 square meters in size amongst other reasons and upon the advice of his counsel, and since he still had in his possession the certificate of occupancy in respect of the first plot issued to him, approached the lower Court to grant him the right to repossess the same.
The Appellants as defendants before the lower Court have a different story, it is as narrated at pages 5 to 7 of the appellants brief of Argument.
The Appellants state that the respondent supplied his address as P.O. Box 3301 Yaba Lagos to the 2nd appellant as his address for correspondence, that he was allocated plot 19 Block 17 TPO 119 Offa in that address, as well as the Right of Occupancy issued to him in 2003 and the certificate of occupancy issued in 2004. That by the Certificate issued, he was to erect and to complete an approved building within three years from the 3rd of January, 2003.
That in June 2006, when it was observed that the respondent had not developed the plot allocated to him as covenanted by him, a pre-revocation notice was issued and served on the respondent vide the address supplied by him to the 2nd appellant, and the plot subsequently revoked and communicated to the respondent on the 3rd of November, 2006 through the same address. It is the further story of the appellants that after the revocation of the plot by the appellants, the respondent approached them and after persuasion plot 6A Block 52 TPS/MISC 119 was allocated to the respondent. The Respondent complained about the size and location of the new plot and held onto the Certificate of Occupancy earlier granted him. It is the action of the appellants that is the subject of the action before the lower Court.
Appellants had also in their story alluded to the year 1994, when the respondent was allocated a plot of land and revoked in 1999, after it was abandoned by the respondent.
By the Originating Summons filed, the claimant sought for the determination of the following questions:
1. Whether the Governor of Kwara State can act subject to Section 28 of Land Use Act, 1978 without giving any notice of revocation; can validly revoke a right of occupancy of Land within the territory of the state.
2. Whether the Governor of Kwara State can validly revoke the right of occupancy of the claimant over Plot 19, Block 7, TPO 119, with ref: No: LAN/ARO/RES/1848.
3. Whether the purported attempt to relocate another land to the Claimant without any justification and/or without his volition does not amount to an infraction on his constitutional right to acquire and own immovable property anywhere in Nigeria.
Subject to the manner in which the questions above are determined, claimant sought for the following reliefs.
1. A declaration that the Claimant remains the legal owner of the Right of Occupancy of the claimant over Plot 19, Block 7, TPO 119, with ref: No: LAN/ARO/RES/1848 at Offa Urban Area of Kwara State covered by Certificate of occupancy No. KW. 11057 of 19th of November, 2004 issued by the Kwara State Government.
2. A declaration that the attempted reallocation of the Claimants landed property described as Plot 19, Block 7, TPO 119, with ref: No: LAN/ARO/RES/1848 at Offa Urban Area of Kwara State which already reflected the name and particulars of the Claimant, by the 1st and 2nd Defendants to unknown staff of the 2nd Defendant is void, invalid and of no consequence.
3. A declaration that the purported reallocation without revocation notice to the Claimant is null and void abinitio.
4. A declaration that since the 1st and 2nd Defendants have obstructed the Claimant from developing the plot mentioned above since November, 2004 when his Certificate of Occupancy was issued, all relevant charges relating to the said plot should be waved and quashed.
5. An order of perpetual injunction restraining the Defendants their agents, servants, privies and/or any other person acting through them from further trespassing into the land and/or from further disturbing the Claimant from enjoying his landed property described as Plot 19, Block 7, TPO 119, with ref: No: LAN/ARO/RES/1848 at Offa Urban Area of Kwara State.
6. An award of the sum of One Million Five Hundred Thousand Naira (N1,500,000.00) only as special damages for the destruction of the Claimants building material namely hereunder,
i. Block 5, 000 pcs at N120.00 each =N600, 000. 00
ii. 13 load of Granite at N22,000.00 per trip =N286, 000. 00
iii. Sharp Sand at N6,000.00 per trip x 10 =N60, 000. 00
iv. 10 Load of Gravel at N7,500.00 per trip =N75, 000. 00
v. 100 bags of Cement at N1,500.00 =N150, 000. 00
vi. Iron Rod at N800.00 x 400 pcs =N320, 000. 00
vii. Transportation =N 9, 000. 00
Total =N 1,500,000.00
7. Cost of this suit.
In support of the Originating Summons, is a 27 paragraph affidavit deposed to by the claimant in person, and a written address. Hinged on the Originating processes are Exhibits A, B, C1, C2, C3, C4, C5, C6, D, E, F, G1, G2, G3, G4, G5, H1, H2, H3, H4, H5, and H6. The claimant also filed significant further and better affidavit borne on 25 paragraphs to which is attached exhibits Engineer K1, K2 and L also deposed to by the respondent in person.
The defendants now appellants filed a counter-affidavit of 32 paragraphs attached to which are Exhibits MOJ 1 to 13 and a written address in opposition to the Originating Summons. Respondent thereafter filed a reply on points of law on the 21/4/2016, when the application came up for hearing, the parties moved their respective positions and the case was adjourned for judgment which was delivered on the 7th of June, 2006.
Dissatisfied with the judgment of the lower Court, Appellant filed a Notice of Appeal on the 21/6/16 predicated on eight grounds, and from the eight grounds of appeal raised, appellants in the brief settled by Kamaldeen Ajibade, the Honorable Attorney-General, Kwara State; leading H. A. Gegele (Director of Civil Litigation), M. A. Oniye, A. M. Bello, A. B. Nuhu and Miss O. T. Adewara all of the Kwara State Ministry of Justice, identified four issues for the determination of the appeal as follows:
i. Whether the lower Court had jurisdiction to entertain the respondents action in view of Section 2 (a) of the Public Officers (Protection) Law of Kwara State.
ii. Whether the lower Court was right to have held that Exhibits MOJ 5-8 were belatedly issued to validate the alleged re-allocation of Plot 19 Block 7 TPO 119 Offa.
iii. Whether the lower Court who had earlier held that the notice of revocation was rightly issued and served on the Respondent, was right to have later held that the revocation of the statutory Right of Occupancy was wrong.
iv. Whether the lower Court was right in granting an order of perpetual injunction against the statutory power of the Appellants in respect of Plot 19, Block 7 TPO 119 Offa.
Ambali Abdulkabir Mujahid, leading Oyewale Olajide, Segun Durowaiye, S. Y. Kamaldeen, C. A. Igwebuike, Akeno Suleiman; learned counsel for the respondent, raised three issues for the determination of the appeal as follows:
i. Whether the public officers (protection) act was intended by the legislature to apply to recovery of land, breach of contract or for claims for work and labor done.
ii. Whether the lower Court was right to have held that revocation of the statutory right of occupancy was wrong.
iii. Whether the lower Court was right in granting an order of perpetual injunction against the statutory powers of the appellants in respect of Plot 19 Block 7 TPO 119 Offa.
A careful and dispassionate appraisal of the two set of issues would reveal that the respondents three issues are clearly in sync with the appellants issues 1, 2, 3 and 4. It is in this regard therefore that I adopt the issues proposed by the appellants in the determination of the appeal.
ISSUE ONE
Whether the lower Court had jurisdiction to entertain the Respondents action in the light of Section 2(a) of the Public Officers (Protection) Law of Kwara State.
It was contended for the appellant that the lower Court lacked the jurisdiction to entertain and to grant the reliefs of the claimant. Though conceding that the issue of jurisdiction is being raised for the first time, learned counsel posits that by the very nature of the fact that jurisdiction is a threshold issue, same can be raised at any stage of the proceedings. On this legal principle, counsel sought support from the decisions of Utih vs. Onoyivwe (1991) 1 SCNJ 25 at 49 per Bello CJN, Galadima vs. Tambai (2000) 6 SC (pt. 1) 196 at 206-207, Dapianlong vs. Dariye(2) (2007) All FWLR (pt. 373) 81 at 120 amongst others.
He argued that by the provisions of Section 2(a) of the Public Officers (Protection) Law of Kwara State 2006, the jurisdiction of the lower Court was wanting, as the action was instituted outside the statutory limit of three months. Learned counsel relied on a host of cases including Corporal Effiom Bassey vs. Minister of Defense & 2 Ors (2006) All FWLR (pt. 343) 1799 at 1806, NPA vs. Lotus Plastics Ltd (2005) 12 SC (pt. 1) 19 at 32, Dr Tosin Ajayi vs. Princess (Mrs.) Olajumoke Adebiyi & 3 Ors (2012) All FWLR (pt. 634) 1 at 23 to posit that a Statute of Limitation removes the right of enforcement and the right to judicial relief.
He then referred to paragraphs 12 and 13 of the Originating Summons, as to the date the suit was initiated, which rendered the respondents suit stale and his right of action barren.
He argued further on the authority of Aremo II vs. Adekanye (2004) 13 NWLR (pt. 891) 522 that it is unjustified and inequitable for the lower Court to have allowed the prosecution of a stale claim filed 9 years from when the cause of action accrued. He thus urged the Court to resolve the issue in favor of the Appellants, overrule the decision of the trial Court made per incuriam and without jurisdiction and to dismiss the claims of the respondent.
In his response on the issue, learned counsel for the respondent is of the opinion that the provisions of Section 2 of the Public Officers (Protection) Act is not absolute and do not apply in the case of contract or the case of recovery of land. He premised this principle of the law on the case of FGN vs. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162. He submits that Section 2 of the Public Officers (Protection) Act is therefore of no moment, obsolete and of no assistance or help to the appellants. The case of Hon. Minister of the FCT vs. M. H. (Nig) Ltd (2011) 9 NWLR pt. 1252 272 at 279 was further cited. Learned counsel also referred to the recent case of Sunday vs. Chief of Air Staff (2015) All FWLR (pt. 730) 1283 and 9 host of other cases maintaining that the provisions of Section 2(a) of the Public Officers Act ceases to apply to cases for the recovery of land, breaches of contract, claims for work done and labor done; and also inapplicable in cases rooted in specific contracts.
He further argued that all the claims by the respondent against the appellants before the lower Court bothers essentially on the recovery of land and damages for the destruction of the building materials placed on the said land. He insists that the issue of jurisdiction raised by the appellants is grossly misconceived praying that the case/appeal be heard on its merit.
In his reply on points of law, the learned Attorney General referred to the cases cited by the counsel to the respondent and urged the Court to discountenance the submissions of the respondent as being misconstrued, misconceived and misapplied in the case.
There is no disputing the fact that jurisdiction is a threshold matter, and the foundation of every adjudication, the life wire of any trial. This is so because any purported trial, adjudication without jurisdiction is an exercise in futility. Thus Bello CJN in Utih vs. Onoyivwe (supra) established the fact that:
Moreover jurisdiction is the blood that gives life to the survival of an action in Court of law and without jurisdiction; the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it will be an abortive exercise.
The learned law officer is equally correct, relying on the position established in Galadima vs. Tambai (supra) that jurisdiction being pivotal and fundamental, can be raised at any stage of the trial, be it at the level of trial or on appeal to as far as the Apex Court. See also Dapianlong vs. Dariye(2) (2007) All FWLR (pt. 373) 81 at 120.
The learned counsel for the appellants now argued that by the provisions of Section 2(a) of the Public Officers (Protection) Law Cap. P.15 Laws of Kwara State 2006, the lower Courts jurisdiction to entertain the claimants claim before it was ousted, the claim being abated by efluxion of time. The respondent on the other hand holds the view that the provisions of Section 2 of the Public Officer (Protection) Act, is not absolute, contending that the act does not apply in cases of contract and or the recovery of land. The case of FGN vs. Zebra Energy Ltd (supra) was relied upon amongst others. Now the section under reference reproduced reads as follows:
2. Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority the following provision shall have effect.
(a) Limitation of time:
The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof.
The established legal principle remains that where an action is adjudged as being statute barred, the plaintiff who might have had a cause of action, loses the right to enforce the cause of action by judicial process. In clear words, the action commenced after the expiration of the time limited by law is not maintainable, the Act having removed the right of action and the right to judicial relief, leaving the plaintiff with a bare and empty cause of action which he cannot enforce. See Odubeko vs. Fowler (1993) 7 NWLR (pt. 308) 637; Eboigbe vs. NNPC (1994) 5 NWLR (pt. 347) 649; Araka vs. Ejeagwu(2001) FWLR (pt. 36) 830; Obiefuna vs. Okoye (1961) All NLR 357; Egbe vs Adefarasin (1987) 1 NWLR (pt. 47) 1, Ajayi vs. Princess (Mrs) Olajumoke Adebiyi & 3 Ors, (supra), NPA vs. Lotus Plastics (supra) and Nikagbatse vs. Slater (2016) ALL FWLR (pt. 835) 250 @ 265.
As rightly posited, in invoking the provisions of the law, the Court considers from the originating summons, or the statement of claim, when the cause of action arose, when the suit was initiated, the duration of the time from when the cause of action arose and when the case was initiated, and lastly the status of the objector, that is whether he is in fact a public officer within the contemplation of the law, and in the course of the performance of his public duty as such public officer. The case of Effiom Bassey vs. Minister of Defense & 2 Ors (2006) ALL FWLR (pt. 343) 1799 @ 1806 is apposite.
I am aware of the position of the law which is to the effect that the Public Officers (Protection) Act, does not apply to cases of recovery of land and breaches of contract or for claims for work done and labor done as argued by the learned counsel for the respondent, in line with the decision of the Apex Court in FGN vs. Zebra Energy LTD (supra) and other cases of the same nature, including the recent decision of Sunday vs. Chief of Air Staff (2015) ALL FWLR (pt. 730) 1283 @ 1290, which reaffirmed the decision of the Court in the case of FGN vs. Zebra Energy Ltd (supra), and other cases. Having carefully read and analyzed the cases cited by the learned counsel for the respondent, I cannot but agree with the appellants counsel, that the cases cited were all based on contract as against the action of the appellants revoking the respondents title to the land under consideration. The ratio being one founded on contract cannot as argued be applicable judicial precedent to cases which facts are not similar. See Eke vs. FRN (2013) ALL FWLR (pt. 702) 1748 @ 1796. I agree with the appellants that the cases cited by the respondent are not on all fours with the instant case, and therefore inapplicable.
It remains to conclude that from the facts which are not subjected to dispute, the cause of action in this case arose sometimes in July 2006, when the 2nd appellant revoked the respondents Certificate of Occupancy. From the process originating the action before the lower Court, it is clear that same was initiated on the 25th of November, 2015, which is about nine years from when the cause of action accrued. Indeed it was to the knowledge of the respondent that his title to the land under consideration was revoked, but waited till when the other piece of land given to him failed to meet his expectation that he decided to complain about the revocation of the land initially given to him. This no doubt is clearly beyond the three months allowed by statute, and from the state of the law established, the respondent, even though might have had a good case, it cannot be maintained and or enforced through judicial process. See Aremo vs. Adekanye (2004) 13 NWLR (pt. 891) 572, Okafor vs. BDU, Jos Branch (2017) 5 NWLR (pt. 1559) 385 @ 422, Asaboro vs. Pan Ocean Oil Corp. (Nig) Ltd (2017) 7 NWLR (pt. 1563) 42 @ 68. Nweze JSC, in further elucidation on the law, stated that:
It is however important to note that what the statute bars is the action and not the cause of action in the context of this distinction what emerges is that whereas the plaintiffs cause of action remains intact, although in a vacuos and bare form, a statute of limitation denudes him of his action, that is his right of enforcement; the right to judicial relief.”
I must say unfortunately that such is the fate of the present respondent. The fact that the respondent by the limitation act was denied the right to ventilate his grievance is a jurisdictional matter, and the lower Courts jurisdiction having been ousted, translates to the conclusion that he had no jurisdiction to hear and to determine the respondents case. In other words, the determination of the lower Court amounted to naught. This ordinarily determines the present appeal. I am however fully aware that this Court is not the final Court, and would therefore proceed in the determination of the other issues, peradventure, my opinion on the issues are desired on appeal. I however resolve this issue in favor of the appellants.
ISSUE 2
Whether the lower Court was right to have held that Exhibits MOJ 5 -8 were belatedly issued to ventilate the alleged re – allocation of plot 19 Block 7 TPO 119 Offa.
This issue seeks to question the trial Courts holding to the effect that Exhibits MOJ 5, MOJ 6, MOJ 7 and MOJ 8 were issued by the appellants to cover the track of the re-allocation of the plots, while the interest of the respondent was still intact. He argued that the reliance of the lower Court on the deposition of the respondent is misguided, same being an assertion by the respondent which he is bound to prove. He argued also that a document which needs certification, but was not so certified remains inadmissible. He accused the learned judge of primordial sentiment which cannot override our rules of evidence, contending that in the absence of any evidence to justify the respondents assertion of the reallocation of the res in dispute, it was wrong for the trial Court to ask the appellants to provide the certificate of the new owner. He maintains that it is the respondent who alleged reallocation that bears the burden of proof.
In his response on the issue, the learned counsel for the respondent replied that where a statute provides for the procedure of acquiring property by Government, then the government is expected to comply with the provisions of the statute, and the procedure for the acquisition of the land. Failing which the Courts must intervene.
He relied on the case of Ogbuefi vs. ASEC (2011) ALL FWLR (pt. 603) 1915 to posit that where the notice given is inadequate, not given or not given in compliance with the provisions of the act, then the exercise of revocation becomes null and void. He drew the Courts attention to Section 28 of the Land Use Act, particularly Section 28 (6) of the act, which states that the revocation of the right of occupancy must be signed under the hand of a public officer duly authorized in that behalf by the Governor and notice thereof given to the holder.
He argued that the notices of revocation were not signed as required by law. He posits in line with the decision of Adeshina vs. Bac Electrical Co. Ltd (2007) ALL FWLR (pt. 369) 1282 @ 1283, that where a certificate is granted over land while there was a subsisting grant or deemed grant, the subsequent certificate of occupancy is invalid, null and void. Responding on points of law, the learned counsel for the appellants is of the opinion that respondents argument is a new issue which was not decided upon by the trial Court. He thereby urged the Court to discountenance the argument of the learned counsel for the respondent as well as the cases cited.
First of all is the complaint as to who bears the evidential burden of proving an asserted fact. On this, the law is certain in that he who asserts has the duty of adducing evidence in proof of the assertion as this accords with Section 131 of the Evidence Act, 2011. In the instant case, the respondent having asserted that the land was re-allocated to a third party, must adduce evidence in that regard. See Egharevba vs. Osagie (2009) 18 NWLR (pt. 1173) 299 SC, where it was held that; 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 any presumptions that may arise in the pleadings.
This burden of proof cannot be shifted on the appellant, unless that fact is first proved by the plaintiff having asserted its existence. See also the case of UBA vs Jargaba (2007) 5 SC 1. In the instant case, it was the assertion of the appellant that respondents re-allocated the land in issue to another person, and that being so, the onus was on the appellant to so prove.
It was therefore wrong of the lower Court to have shifted the burden of so proving on the respondents.
By the intendment of Section 28 (5) (a) of the Land Use Act, 1978, the Governor of a State in Nigeria has the power of revocation of a certificate of Occupancy for a breach of the terms deemed in the Certificate of Occupancy. See, NEW Ltd vs. Denap Ltd (1997) 10 NWLR (pt. 525) 481 referred to in Canal Inv. Ltd vs. TCR Ltd (2017) 3 NWLR (pt. 1553) 441 @ 463.
In the case of Adeshina vs. Bac Electrical Co. Ltd (2007) ALL FWLR (pt. 369) 1164 @ 1282 – 1283 per Ogunwumiju JCA, which is to the effect that; where a certificate of Occupancy is granted over land, while there was a subsisting grant or deemed grant of right over the same land, the subsequent certificate of occupancy is invalid, null and void by reason of the subsisting grant, presupposes the existence of a valid grant subsisting in favor of an earlier grant. Whereas the statement of law expressed therein remains good law, same cannot be applied to the instant case, where the grant to the appellant was revoked on the bases of non compliance with the terms of the grant. I also resolve this issue in favor of the appellants.
ISSUE THREE
Whether the lower Court that had earlier held that the notice of revocation was rightly issued and served on the respondent was right to have later held that the revocation of the statutory right of occupancy was wrong.
It is submitted that the exercise of the Governors statutory powers under Section 28 of the Land Use Act to revoke a statutory right of Occupancy for any reasons listed under the section is achieved by the giving of notice, the effect of which is that the title of the holder becomes extinguished. He alluded to Section 28 (7) of the Land Use Act which provided that:
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) or no such later date as may be stated in the notice.
With respect to the case generating this appeal, counsel argued that by Exhibit MOJ 7, the notice of revocation referred to in Subsection 6 of Section 28 has been communicated to the respondent through his known address.
He also alluded to the finding of the lower Court with respect to Exhibits MOJ 5 to MOJ 8 depicting unchallenged evidence on the validity of the notice of revocation. He submits therefore that the conclusion naturally flowing is that the right or interest of the respondent was thus extinguished.
He faults the lower Court in holding that there was no valid revocation contending that such is at variance with the findings of the Court, and submits that the finding by the lower Court in that regard is perverse on the authority of Dr. Moses Obajimi vs. Mr. P. P. Adediji (2009) All FWLR (pt. 394) 335 at 351. His position is that this Court in the circumstance is in the right footing to interfere with the wrong conclusion drawn by the lower Court as directed in Ramat Abdulkadir & 2 Ors vs. Rasaq Sa’adu & Anor (2012) All FWLR (pt. 654) 89 at 121.
He further argued that there was evidence that the respondents right of occupancy was ripe for revocation and therefore had no subsisting right over the revoked property.
In his response, learned counsel for the respondent also alluded to Section 28 (1) of the Land Use Act contending that for the revocation to be valid, Section 28 (6) must be strictly adhered to. He submits that the whole transaction was an organized illegality meant to deprive the respondent of his plot as the strict formalities prescribed were not dutifully adhered to. He urged the Court on the authority of Adeshina vs. Bac Electrical Co. Ltd (2007) All FWLR 1164-1347 (pt. 369) per Ogunwumiju JCA to answer the question in the affirmative as the lower Court did and to hold that the revocation of the statutory right of occupancy was wrong. I have in the circumstance given due thought to the submissions of the learned counsel.
The issue for determination to my understanding questions whether the respondents statutory right of occupancy was validly revoked as required by law. In the recent case of Canal Investment Ltd vs TCR Limited (2017) 3 NWLR (pt.1553) 441 @ 463-464, this Court, per Hassan JCA, the issue pertaining to the Governors right to revocation was treated therein. I have in resolving the third issue, concluded that the Governor had a right of revocation, consequent upon the failure of the respondent to comply with the terms of the grant embodied in the certificate of Occupancy.
I also resolve this issue in similar manner against the respondent.
ISSUE FOUR
The contention of the appellant with respect to this issue bothers on the order of perpetual injunction granted against the appellant. The complaint is that the Court was wrong to have granted a perpetual injunction which has the effect of restraining the state Governor in the performance of his statutory duties. He submits that whereas an order for perpetual injunction is an ancillary relief granted to protect an established right, it cannot be granted in violation of statutorily provided obligation of others, therefore a Court cannot rightly restrain any person or body from the exercise of its lawful duty if done in accordance with the law. He submits that by the provisions of Section 2 (1) and (5) of the Land Use Act, the Governor of Kwara State has the statutory duty of dealing with, controlling, administering and generally managing all the lands within the territory of Kwara State. He argued that it was wrong while for the lower Court while trying to protect the respondent to close its eyes to the fact that in future there might arise the genuine overriding public interest which will necessitate the State Governor to exercise his powers under Section 28 of the Act.
In his response on the issue, the learned counsel for the respondent submitted that where the revocation is declared invalid, the perpetual injunction becomes natural and mandatory being a fall out of the invalidity. He argued that a Court has the power to make consequential orders in order to give effect to the judgment delivered, and to also avoid future actions. Relying on the cases of EFCC vs. Odigie (2013) ALL FWLR (pt. 692) 1808 @ 1818, Gassol vs. Tutare (2012) 7 WRN 118, and Buwanhot vs. Buwon Hold (2009) (pt. 1166) 22, learned counsel posited that the trial Court had the right in order to make its judgment meaningful to grant the order as sought.
It is trite that the grant of the relief of perpetual injunction is a consequential order which should naturally flow from the declaratory order sought and granted by the Court. The essence of its grant is meant to prevent permanently the infringement of those rights being complained of and to obviate the necessity of bringing multiple suits on the issue in future. See Goldmark Nigeria Ltd & Ors vs. Ibafon Company Ltd & Ors (2012) LPELR 9349 SC, Afrotec vs. MIA (2001) 6 WRN 65, Globe Fishing Industries Ltd vs. Coker (1990) 7 NWLR (pt. 162) 265.
I think the issue here bothering the appellant is whether a perpetual injunction can be granted against the Governor of the State, who by virtue of Section 2 (1) (a) of the Land Use Act, which provides that:
As from the commencement of this Act, all land in Urban Areas shall be under the control and management of the Governor of each State,”
Can be restrained perpetually with regards to the land under his control in the state, in view of its powers under Section 28 (1) of the land Use Act. I think that the argument by the appellant makes a lot of sense. In the first place, a holder of a certificate of occupancy is a limited owner to a term of 99 years, and most importantly, the Governor has a right of revocation for overriding public interest. In the event, the land under consideration is needed in the public interest which overrides private interest; can the Court rightly restrain the Governor in the performance of that statutory duty placed on him?
The obvious question is in the negative. I consider the question posed in the light of the decision in the case of Akinduro vs. Alaya (2007) LPELR-344 (SC) per Aderemi JSC, reasoning along the case of Chief Dada, The Lojaoke vs. Chief Shitu Ogunremi & Ors (1967) NMLR 181, that it is improper to grant an order of perpetual injunction at the instance of a limited owner when the owner of the absolute interest is not a party to the case, and in our own context, I would say when the absolute owner has a statutory power of revocation in the public interest. I agree with the learned counsel for the appellants in the circumstance that it was wrong of the lower Court granting an order of perpetual injunction against the appellants which had the effect of divesting him of the performance of his statutory duty. To that extent the argument by the respondent that the order is a consequential order meant to protect and to forestall future actions, cannot be right. I resolve this issue in favor of the appellants.
Having therefore resolved all the issues in the appellants favor, and most especially in view of the resolution of issue one, to the effect that this case is statute barred having been ousted by a statute of limitation, this appeal succeeds and the appeal allowed by me. The consequence is that the decision of the lower Court in case no. KWS/366/15, delivered on the 7th June, 2016 between Engineer Ibrahim Issah Kolawale and The Attorney-General of Kwara State and 1 Or, is hereby set aside. I make no order as to costs.
CHIDI NWAOMA UWA, J.C.A.: My learned brother, HAMMA AKAWU BARKA, JCA before now, obliged me with a draft copy of the judgment just delivered.
I am at one with his decision that the case is statute barred by the provisions of the statute of limitation. I also allow the appeal and abide by the order awarding no costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I have read before now the judgment just delivered by my learned brother HAMMA AKAWU BARKA, J.C.A. I agree with his reasoning and conclusion, I also allow the appeal and make no order as to costs .
Appearances:
Kizito Oji Esq. with him, Abdulrazaq A Daibu, Esq. and Ayokunle Olufade, Esq. For Appellant(s)
Israel Eso. For Respondent(s)
