BADEWOLE v. GOV, LAGOS STATE & ORS (2020)

BADEWOLE v. GOV, LAGOS STATE & ORS

(2020)LCN/14073(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/L/571/2015

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

MRS. OLAYEMI BADEWOLE APPELANT(S)

And

1.THE GOVERNOR OF LAGOS STATE 2.ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, LAGOS STATE 3.PERMANENT SECRETARY, LAGOS STATE LANDS BUREAU 4.PERMANENT SECRETARY, LAGOS STATE MINISTRY OF PHYSICAL PLANNING 5.LEKKI CONCESSION COMPANY LIMITED RESPONDENT(S)

RATIO

DUTY OF THE COURT IN GRANTING RELIEFS NOT SOUGHT

The first point to note in the orders made by the Lower Court is that it granted a relief; compensation, not sought or prayed for by the Appellant in the case presented. The law is now elementary in all Courts of record that a Court has no vires and authority to grant a relief not sought for by a party in a case, not being a charitable institution. See Ilodibia vs. N.C.C. Limited (1997) 7 NWLR (Pt. 512) 174, B.O.N. Limited vs. Aliyu (1999) 7 NWLR (Pt. 612) 622, Ndulue vs. Ibezim (2002) 12 NWLR (Pt. 780) 139, Dumez Nigeria Limited vs. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361, Amadu vs. Yantumaki (2011) 9 NWLR (Pt. 1251) 161, Nidocco Limited vs. Gbajabiamila (2013) 14 NWLR (Pt. 1374) 350, Airtel Networks Limited vs. George (2015) 4 NWLR (Pt. 1448) 60. PER GARBA, J.C.A.

WHETHER OR NOT A SUBSTANTIAL RELIEF NOT CLAIMED OR SOUGHT FOR BY A PARTY CAN BE GRANTED BY THE COURT

A substantial relief not claimed or sought for by a party cannot properly and validly be granted by a Court of law on the pretext of the omnibus grant of a consequential relief, which needs not be specifically prayed or sought for by a party, but is granted in the general exercise of a Court’s inherent jurisdiction in a case in order to give effect to its decision. A consequential relief is one which flows naturally and directly from the decision of a Court in a case as an incident thereof which will give effect to it. See A.G. Federation vs. A.I.C. Limited (2000) 6 SC (Pt. 11) paragraph 175, (2000) 10 NWLR (Pt. 675) 193, UBN, Plc vs. Adom (2003) 9 NWLR (Pt. 825) 317, Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 227, Nwagu vs. Fadipe (2012) 13 NWLR (Pt. 1318) 547, Eze vs. Governor, Abia State (2014) 14 NWLR (Pt. 1426) 192.
Without any difficulty, it can be observed that the relief of compensation granted by the Lower Court did not necessarily flow directly and naturally from the decision by that Court that the case presented by the Appellant succeeded on the merit of the evidence that the revocation of her right in and compulsory acquisition of the land in dispute has failed, is vitiated and unlawful. The order for compensation is therefore not one of the nature of a consequential relief which the Lower Court could grant suo motu, without asking or prayer by the Appellant. PER GARBA, J.C.A.

DEFINITION OF THE TERMS: “UNLAWFUL” “VITIATE” “FAILED” AND “VOID”

In the case of Ogumka vs. C.A. Commission (2010) LPELR-4891(CA) the word “unlawful” was defined as – “(1) Not authorized by law;
(2) illegal”, relying on the 8th Edition of the Black’s Law Dictionary.
In the same Edition of the Dictionary, the words “Fail” and “vitiate” are defined in the following terms: –
“Fail” – to be deficient or unsuccessful”
“Vitiate” – To impair; to cause to have no force or effect. (2) to make void or voidable; to invalidate either completely or in part.”
In the Oxford Advanced Learner’s Dictionary of current English, 6th Edition by A.S. Hornby, the word “Failed” is defined as – “not successful” and “unlawful” is defined as “not allowed by the law, illegal.”
The community meaning of the words “failed”, “vitiated” and “unlawful” used by the Lower Court to describe and find the intended revocation of the right of the Appellant in and the compulsory acquisition of the land in dispute is that, in law, the attempt had failed, was illegal and a void act. In the case of Buraimoh vs. Karimu (1999) 9 NWLR (Pt. 618) 310, the word “Void” was defined thus: –
(1) Not valid or legally binding
(2) Ineffectual;
(3) Completely empty;
(4) Null;
(5) Nugatory
(6) Having no legal force binding effect;
(7) Unable in law to support the purpose for which it was intended,
(8) That which has no force and effect, without efficacy is incapable of being enforced by law, or has no legal or binding force.
Then, in the later case of Oyeneyin vs. Akinkugbe (2010) 4 NWLR (pt. 1184) 265, the words: –
“an act which has no legal effect or consequence which does not confer any legal right or title whatsoever, and it does not also impose any legal obligation or liability on any one or make any party liable to suffer any penalty or disadvantage.”
Put another way, a void act is one which never happened or existed in the eyes of the law and so purported. See Tamti D.U. vs. Nigeria Customs Service Board (2008) LPELR-8490 (CA), Ikpongette vs. C.O.P Akwa Ibom State (2008) LPELR-3878(CA).
This being the position of the law on a void, failed, vitiated and unlawful act of the 1-4th Respondents, the intended revocation of the Appellant’s right in and compulsory acquisition of the land in dispute, as found and decided by the Lower Court in its judgment, never happened or existed in the eyes of the law and so cannot be the basis or foundation of a valid completed act which could extinguish the right of the Appellant in the said land; the subject matter of the void, vitiated and illegal act. It is said by that Legal and Judicial Colossus; Lord Denning, MR, in UAC vs. Mcfoy (1961) 3 ALL ER, 168, that a void act is not only bad, but incurably bad and you cannot put something on nothing and expect it to stand. It will collapse. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By originating summons dated 18th February, 2009, filed in the High Court of Lagos State (Lower Court), the Appellant claimed the following reliefs against the Respondents.
“i. A declaration that the Claimant’s proprietary right/statutory right of occupancy in the land known as Plot A & B Block 6 along Lagos/Epe Expressway registered as No. 89 at page Volume 2110 of the land Registry Office at Lagos is subsisting.
ii. A declaration that the Defendants having failed to comply with the provisions of Section 44 of the Constitution of the Federal Republic of Nigeria 1999; Section 28 Land Use Act and other enabling statues cannot compulsorily acquire, take over, covert and/or possess the Claimant’s Land known as Plot A & B Block 6 along Lagos/Epe Expressway, Poroku Village, registered as No. 89/89/1201 at the Land Registry Office Lagos State.
iii. A declaration that the 1st and 4th Defendants cannot after demanding and collecting full payment from the Claimant for processing Claimant’s building/development approval for Claimant’s Land

registered as No.89/89/2101 deny/refuse the Claimant the said development approval, access and use of the said Land.
iv. An order of perpetual injunction restraining the Defendants, their servants, agents, privies and persons acting for or through them from acting on the purported compulsory acquisition of the Claimant’s Land known as Plot A & B Block 6 along Lagos/Epe Expressway, Poroku Village Lekki Peninsula, Lagos registered as No. 89/89/2101 and/or from entering into, remaining in, carrying on any development on and or from dealing with the Claimant’s said Land in any manner however contrary to the proprietary interest of the Claimant.
v. An order directing the 4th Defendant to forthwith approve and issue letter of approval for the development of the Claimant’s Land Plot A & B Block 6 Poroku Village along Lagos/Epe Expressway Lekki, Lagos.”

In their reaction to these claims, the 1st to 4th Respondents filed a counter Affidavit dated 3rd of February, 2010 while the 5th Respondent filed a Counter Affidavit dated 23rd February, 2010 in opposition thereto.

The Appellant filed a Further and Better Affidavit to

respond to the 1st to 4th Respondents’ Counter Affidavit, on the 2nd of March, 2010 and on the 22nd March, 2010 in answer to that of the 5th Respondent.

In the course of the case, the Appellant filed another Further and Better Affidavit deposed to on 19th of June, 2013 in support of the summons to which the 5th Respondent filed a Counter Affidavit dated 13th of November, 2013.

In the judgement delivered on the 19th of December, 2014, the Lower Court found for the Appellant that the revocation of her title to the land in question was not done in accordance with the provisions of the law, was “vitiated” and “becomes unlawful”, but was entitled to compensation since it was a completed act.

The Appellant was awarded the sum of Fifty (50) Million Naira (₦50,000,000.00) as compensation for the revocation.

Aggrieved by the decision on the award of compensation, the Appellant brought this appeal vide the Notice of Appeal dated 17th of March, 2015 on four (4) grounds and in the Appellant’s brief filed on the 30th of July, 2015, two (2) issues are submitted to the Court for decision in the appeal.

They are thus: –
“1. Whether in view of the findings by the Lower Court that the purported revocation of the Appellant’s Right of Occupancy “failed”, “is vitiated” and “unlawful”, the Learned trial Judge rightly or wrongly held that the Appellant’s proprietary right/interest in the subject land no longer subsists and the act of compulsory acquisition is completed. (Grounds 1, 2 and 3).
2. Whether the Learned Trial Judge rightly or wrongly awarded the sum of N50 Million damages in favour of the Appellant for the unlawful acts of the Respondents. (Ground 4).”

A sole issue is said to arise for determination in the appeal at paragraph 3.1 (i) on page 5 of the 1st – 4th Respondents’ brief filed on the 19th of October, 2015, in the following terms: –
“Whether the Learned Trial Judge rightly held that claims 3, 4 and 5 shall not be granted in that the acts have already been completed. (Grounds 1 and 3 of the Appellant’s Notice of Appeal).”

There is no record that the 5th Respondent filed a brief in the appeal, but being dissatisfied with a part of the judgement

by the Lower Court, it filed a Notice of Cross Appeal dated 20th of December, 2018, in respect of which a Cross Appellant’s brief was filed on 31st January, 2019.

The 1st Cross Respondent’s brief was filed on the 6th March, 2019 and there is no record that 2nd – 5th Cross Respondents filed a brief in the cross appeal.

I intend to deal with the main appeal first and thereafter, the cross appeal.
Main Appeal
Appellants’ Submissions:
The arguments are that since the Lower Court found that the revocation of the Appellant’s right of occupancy did not comply with both the provisions of Section 28 of the Land Use Act and the Constitution, that it was vitiated and unlawful, it was wrong to have later held that the Appellant’s right was extinguished by such revocation as a completed act. It is submitted that since the revocation is vitiated and unlawful, it remained so for all times, perpetually void and cannot yield anything positive, citing Ndigwe v. Nwude (1999) 11 NWLR (Pt. 629) 314 @ 339; Adefulu v. Okulaja (1996) 9 NWLR (Pt. 475) 668 and 8th Edition of the Black’s Law Dictionary. According to

Learned Counsel, the Lower Court approbated and reprobated at the same time when it held that the revocation was unlawful and vitiated, to later hold the same revocation as a completed act to deprive the Appellant of her right to the land in question, relying on Kayode v. Odutola (2001) 11 NWLR (Pt. 725) 659 @ 675-6, among other cases. In addition, Guinness Nig. Ltd v. Udeani (2000) 14 NWLR (Pt 687) 372 @ 389; Ibrahim v. Mohammed (2003) 6 NWLR (Pt. 817) 615 @ 644; Goldmark Nig. Ltd v. Ibafo Co. Ltd (2012) 3 MJSC (Pt. 1) 90 @ 158 and four (4) other cases are cited on the effect of revocation of right to land which does not strictly comply with the provisions of the law and the Court is urged to set aside the decision of the Lower Court that the revocation of the Appellant’s right was a completed act capable of depriving her of the right to the land in question.

On the award of compensation, it is submitted that since the Appellant did not seek for compensation among the reliefs sought in the case, the Lower Court was wrong in law to have awarded it, not being a Father Christmas, on the authority ofLiman v. Mohammed (1999) 9 NWLR (Pt. 617) 116 @ 132;

Etajata v. Ologbo (2007) 11 MJSC, 176 @ 196; Yaro v. A. C. Ltd (2007) 10 MJSC, 186 @ 213 and Awodi v. Ajagbe (2014) 12 MJSC, 42 @ 61. Learned Counsel said since the Lower Court had answered all the questions raised in the summons in favour of the Appellant, it ought to have granted all the reliefs claimed therein.

The Court is urged to resolve the issue in Appellant’s favour and in conclusion to allow the appeal and grant all the reliefs claimed on the Appellant’s summons.

I note that an Appellant’s List of Additional Authorities was filed on the 20th January, 2020, the day the appeal was heard in Court, containing five (5) cases none of which was, however, related to any of the issues or points canvassed in the Appellant’s brief.

1st – 4th Respondents’ Submissions:
The submissions are to the effect that the reliefs 3, 4 and 5 of the Appellant’s summons could not be granted since the revocation and compulsory acquisition of the land in question had been completed in a manner which is contrary to the Appellant’s proprietary interest. Vol. 9, paragraph 1330, 1st Edition of Deji Sasegbon, SAN’s book “Laws of Nigeria”,

Ochudo v. Oseni (1998) 13 NWLR (Pt. 580) 103 @ 121 and NBM Bank Ltd. v. Oasis Group Ltd (2005) 2 NWLR (Pt. 912) 322 @ 332 are referred to and it is argued that the Lower Court is right the reliefs could be granted in that the act has already been completed. The Court is urged to uphold the Lower Court’s decision.

In the Appellant’s reply brief filed on 23rd February, 2017, further arguments are canvassed on the effect of revocation of right to land which did not strictly comply with the provisions of the law. Other arguments in the Reply brief are not on new issues or points raised or arising from the 1st-4th Respondents’ brief, but additional submissions in support of the appeal. I should emphasize that Learned Counsel should strive to know and abide by the provisions of Order 19, Rule 5 (1) of the Court of Appeal Rules, 2016 which provide for the filing of an Appellant’s Reply brief in an appeal. The simple and straight forward provisions say that: –
“5(1) The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file

and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.” (underline provided)
The clear import of these provisions is that an Appellant’s Reply brief in an appeal becomes and is only necessary and to be filed for the sole and only purpose of dealing “with all new points arising from the Respondent’s brief”. Where therefore, no new issues arise from the Respondent’s brief, an Appellant’s Reply brief becomes and will be superfluous, and unnecessary in the appeal as it is not an avenue and cannot be used as a forum for repetition or further arguments/submissions already canvassed in an Appellant’s brief.

An Appellant’s Reply brief is also not to be used for the mere purpose of responding or reacting to every point argued in the Respondent’s brief, which only responded, reacted or answered the issues or points argued in the Appellant’s brief. See Agala v Okusin (2010) 10 NWLR (Pt. 1202) 412; Ojiogu v. Ojiogu (2010) 9 NWLR (Pt. 1198) 1; Izedonmwen v. UBN Plc (2012) 6 NWLR (Pt. 1295) 1;

Stabilini Visinoni Ltd v. Mallinson & Partners Ltd (2014) 12 NWLR (Pt. 1420) 134; Wada v. Bello (2016) 17 NWLR (Pt. 1420) 374.
An Appellant’s Reply brief which merely contains repetitions or further arguments already canvassed in an Appellant’s brief on the Issues/points in an appeal will be contravention of the provisions of Order 19 Rule 5(1) and liable to be discountenanced by an appellate Court in the determination of the appeal. See Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538; Abubakar v. Nasamu (No.2) (2012)17 NWLR (Pt. 1330) 523; Nyesom v. Peterside (2016) 1 NWLR (Pt. 1492) 71.

Resolution of the Issues:
From the arguments of the Appellant on the Issue 1, the pith of her complaint is the finding by the Lower Court that even though the compulsory acquisition was found by that Court not to have been done in strict compliance with the requirements of the law, it was still a completed act which extinguished the Appellant’s proprietary right in the land in dispute.

I have at the beginning of this judgement, set out the reliefs sought by the Appellant from the Lower Court in the Originating Summons. In its judgement, after

correctly reviewing and evaluating the Affidavit evidence placed before it by the parties along with all the relevant Exhibits attached thereto and in line with extant position of the judicial authorities on compulsory acquisition of land by Government, the Lower Court concluded and finally decided; at pages 370-371 of the Record of Appeal, that: –
“In conclusion I hold that the Claimant’s case succeeds and judgement is hereby entered in favour of the claimant against the 1st-5th Defendants as follows: –
1. THAT the Claimant’s proprietary right/statutory right of occupancy in the Land known as Plot A & B block 6 along Lagos/Epe Expressway registered as No. 89 at page 89 in Volume 2101 of the Land Registry Office at Lagos is no longer subsisting.
2. THAT the Defendant failed to comply with the provisions of Section 44 of the Constitution of the Federal Republic of Nigeria 1999; Section 28 Land Use Act and other enabling statutes. However, since the Defendants have compulsorily acquired, take over, converted and or possessed the Claimant’s Land known as Plot A & B block 6 along Lagos/Epe Expressway, Poroku Village,

registered as No. 89/89/2101 at the Land Registry Office Lagos State all the Claimants is entitled to is compensation.
3. THAT claims 3, 4 and 5 shall not be granted in that the act has already been completed.
4. General damages against the Defendants in the sum of N50,000,000.00 (Fifty Million Naira Only) for their unlawful acts.
This is my Judgment.”

Before arriving at the above conclusion that the Appellant’s case succeeded on the merit of the evidence placed before it, the Lower Court emphatically made the following findings: –
1. That the Appellant as the registered and legal owner of the property in dispute, has an exclusive possession which cannot be taken away except in accordance with the provisions of the law – see page 358 of the Record of Appeal.
2. “Based on the position of the law above and in my view, the revocation of the Claimant’s right of occupancy in the circumstances stated above failed to comply strictly with the provisions of the Land Act. I therefore agree with the submission of the counsel to the Claimant that the 1st-4th Defendants did not acquire the subject land for the

purpose which the law allowed i.e., public interest”.
3. “I therefore agree with the submission of the Claimant and hold that the intended revocation of the 1st-4th Defendants in the circumstance failed”.
4. “I therefore hold that, there was no evidence that any revocation notice was served on the Claimant in the manner stated in Section 44 of the Act, so the revocation of the right of occupancy is vitiated and the order becomes unlawful”.

The undeniable consequence and legal effect of these findings by the Lower Court is that he intended revocation of the Appellant’s right in and compulsory acquisition of the land in question which the Appellant was in possession of as a registered and legal owner, was not done in compliance or accordance with the provisions of the law and so it “failed”, it is “vitiated” and “becomes unlawful”. Put simply, the revocation of the Appellant’s right in the land in dispute and compulsory acquisition by the 1st – 4th Respondents was never done in law as it failed, it was vitiated and unlawful. It was on the basis of these profound

findings by the Lower Court that eventually, at the end of it all and in conclusion, decided that the Appellant’s case succeeded on the merit of the facts and evidence presented by the parties before it.

The case presented by the Appellant was for the reliefs sought on the Originating summons filed before the Lower Court and if it succeeded on the merit, the consequential orders that automatically should flow and be made by the Lower Court were the grant of the said reliefs sought by the Appellant.

However, as can be seen, the Lower Court did not grant the reliefs sought by the Appellant even though the case presented by the Appellant succeeded on the merit, but rather granted the reliefs of compensation which was not sought for by the Appellant on the ground that
“— since the Defendants have compulsorily acquired, take over (sic), converted and or possessed the claimant’s Land — all the claimants (sic) is entitled to is compensation “and that claims 3, 4 and 5 shall not be granted in that the act has already been completed.”

Apparently, the orders 1 and part of 2 are clearly contradictory and in conflict

with the findings and conclusion of the Lower Court that the intended revocation of the Appellant’s proprietary right and compulsory acquisition of the land in dispute, was “failed, “vitiated” and “unlawful” for failure to comply with the provisions of Section 44 of the Constitution, Section 28 of the Land Use Act and other enabling statutes.

A substantial relief not

claimed or sought for by a party cannot properly and validly be granted by a Court of law on the pretext of the omnibus grant of a consequential relief, which needs not be specifically prayed or sought for by a party, but is granted in the general exercise of a Court’s inherent jurisdiction in a case in order to give effect to its decision. A consequential relief is one which flows naturally and directly from the decision of a Court in a case as an incident thereof which will give effect to it. See A.G. Federation vs. A.I.C. Limited (2000) 6 SC (Pt. 11) paragraph 175, (2000) 10 NWLR (Pt. 675) 193, UBN, Plc vs. Adom (2003) 9 NWLR (Pt. 825) 317, Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 227, Nwagu vs. Fadipe (2012) 13 NWLR (Pt. 1318) 547, Eze vs. Governor, Abia State (2014) 14 NWLR (Pt. 1426) 192.
Without any difficulty, it can be observed that the relief of compensation granted by the Lower Court did not necessarily flow directly and naturally from the decision by that Court that the case presented by the Appellant succeeded on the merit of the evidence that the revocation of her right in and compulsory acquisition of the land in dispute has failed,

is vitiated and unlawful. The order for compensation is therefore not one of the nature of a consequential relief which the Lower Court could grant suo motu, without asking or prayer by the Appellant.

The next point to be considered is whether the “failed”, “vitiated” and “unlawful” revocation of the Appellant’s right in the land can be the foundation of a valid compulsory acquisition of the land by the 1-4th Respondents so as to constitute a completed act capable in law of extinguishing the Appellant’s right to the land.
In the case of Ogumka vs. C.A. Commission (2010) LPELR-4891(CA) the word “unlawful” was defined as – “(1) Not authorized by law;
(2) illegal”, relying on the 8th Edition of the Black’s Law Dictionary.
In the same Edition of the Dictionary, the words “Fail” and “vitiate” are defined in the following terms: –
“Fail” – to be deficient or unsuccessful”
“Vitiate” – To impair; to cause to have no force or effect. (2) to make void or voidable; to invalidate either

completely or in part.”
In the Oxford Advanced Learner’s Dictionary of current English, 6th Edition by A.S. Hornby, the word “Failed” is defined as – “not successful” and “unlawful” is defined as “not allowed by the law, illegal.”
The community meaning of the words “failed”, “vitiated” and “unlawful” used by the Lower Court to describe and find the intended revocation of the right of the Appellant in and the compulsory acquisition of the land in dispute is that, in law, the attempt had failed, was illegal and a void act. In the case of Buraimoh vs. Karimu (1999) 9 NWLR (Pt. 618) 310, the word “Void” was defined thus: –
(1) Not valid or legally binding
(2) Ineffectual;
(3) Completely empty;
(4) Null;
(5) Nugatory
(6) Having no legal force binding effect;
(7) Unable in law to support the purpose for which it was intended,
(8) That which has no force and effect, without efficacy is incapable of being enforced by law, or has no legal or binding force.
Then, in the later case of

Oyeneyin vs. Akinkugbe (2010) 4 NWLR (pt. 1184) 265, the words: –
“an act which has no legal effect or consequence which does not confer any legal right or title whatsoever, and it does not also impose any legal obligation or liability on any one or make any party liable to suffer any penalty or disadvantage.”
Put another way, a void act is one which never happened or existed in the eyes of the law and so purported. See Tamti D.U. vs. Nigeria Customs Service Board (2008) LPELR-8490 (CA), Ikpongette vs. C.O.P Akwa Ibom State (2008) LPELR-3878(CA).
This being the position of the law on a void, failed, vitiated and unlawful act of the 1-4th Respondents, the intended revocation of the Appellant’s right in and compulsory acquisition of the land in dispute, as found and decided by the Lower Court in its judgment, never happened or existed in the eyes of the law and so cannot be the basis or foundation of a valid completed act which could extinguish the right of the Appellant in the said land; the subject matter of the void, vitiated and illegal act. It is said by that Legal and Judicial Colossus; Lord Denning, MR, in UAC vs. Mcfoy (1961) 3 ALL

ER, 168, that a void act is not only bad, but incurably bad and you cannot put something on nothing and expect it to stand. It will collapse.
In that regard, if the intended revocation of the Appellant’s right and the compulsory acquisition of the land in dispute by the 1-4th Respondents had “failed”, was “vitiated” and “unlawful”, it could not have been validly completed in law to have the legal consequence of extinguishing the Appellant’s right and vesting any right of compulsory acquisition of the land in the 1st-4th Respondents.
In the above premises of the law, the Lower Court is clearly in error to have stated, not decided on the evidence before it, in the orders made after entering judgment in favour of the Appellant in the case, that the failed, vitiated, unlawful and void intended revocation and compulsory acquisition of the land in dispute, was a completed act which extinguished the Appellant’s right. The law, as demonstrated above, does not support that order and so the Court has a duty to interfere with it.

For the above reasons, I found merit in the arguments of the Appellant under

issue 1 which is resolved in her favour.

The resolution of issue 1 in favour of the Appellant has fully and effectively subsumed the complaint under issue 2 on the award of compensation by the Lower Court. Since the Appellant’s propriety right in the land in dispute was not revoked and possession compulsorily acquired by the 1- 4th Respondent in accordance with and as required by the law and the Constitution, the issue of the Appellant’s entitlement to compensation, did not and would not arise.

In the final result, for being meritorious, I allow the appeal and set aside the orders made by the Lower Court in the judgment delivered on the 19th December, 2014.

Having entered judgment in favour of the Appellant, the Lower Court had the duty to grant the reliefs sought in the originating summons. The said reliefs are hereby granted in favour of the Appellant.
Parties to bear their respective costs of prosecuting the appeal.

Cross Appeal:
From the four (4) grounds contained on the Notice of Cross Appeal dated and filed on 20th December, 2018, equal number of issues are proposed for determination in the unpaginated Cross

Appellant brief filed on the 31st January, 2019. They are
“3.1 Whether the decision of the learned trial Judge that there was no evidence that any revocation notice was served on the 1st Cross Respondent in accordance with Section 44 of the Land Use Act is sustainable in the face of conflicting affidavit evidence of service of same by the parties which was not resolved by the trial Judge calling for oral evidence to resolve the conflict.
3.2 Whether the Acquisition of the 1st Cross Respondent’s land is for public purpose.
3.3 Whether the Cross Appellant is an acquiring authority to justify the learned trial Judge’s decision awarding N50,000,000.00 (Fifty Million Naira) damages against the Cross Appellant and the 2nd – 5th Respondents.
3.4 Whether the damages in the sum of N50,000,000.00 (Fifty Million Naira) awarded by the trial Court in favour of the 1st Cross Respondent is in tandem with the provision of the law on compensation for land acquired for public purpose.”

In the 1st Cross Respondent’s brief filed on the 6th March, 2019, the above issues are adopted for decision in the cross appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I have stated in the main appeal that there is no record that the 2nd – 5th Cross Respondents filed a brief of argument in the cross appeal.

Without the need to repeat what has already been decided in the main appeal; i.e. that the intended revocation and compulsory acquisition of the land in dispute by the 1-4th Respondents, from whom the Cross Appellant claims any right to the said land, had failed, was vitiated and unlawful for non-compliance with the provisions of the law and the Constitution, the decision in the main appeal has effectively and completely “taken the wind out of the sail” of the cross appeal which primarily complaints about the order for compensation and proper notice for compulsory acquisition. The issues in the cross appeal have been subsumed and overtaken by the decision in the main appeal such that no useful purpose would be served by their separate consideration.

For reasons set out in the main appeal, this cross appeal fails for lacking in merit and it is accordingly dismissed.
Parties to bear their costs of prosecuting the cross appeal.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The lower Court in its judgment found and held that the revocation of the Appellant’s right of occupancy and the compulsory acquisition of the disputed land was void, failed, vitiated and an unlawful act. The said action which the lower Court has held in void and unlawful cannot spawn any completed act since legal effect of its having failed, being vitiated, void and unlawful is as though it never happened. The legalism is ex nihilo, nihil fit (out of nothing, nothing comes): NZOM Vs. JINADU (1987) LPELR (2143) 1 at 44-45 and IN RE: OTUEDON (1995) LPELR (1506) 1 at 16-17.
The volt face of the lower Court to thereafter award compensatory damages to the Appellant instead of the reliefs claimed on the ground that the revocation and compulsory acquisition of the disputed land was a completed act cannot the justified in law. An appellate Court is under a bounden duty to obviate the resultant injustice.

In the circumstances, I am allegiant to the reasoning and conclusion in the lead judgment of my Learned brother, Mohammed Lawal Garba, JCA, which I read in draft and I also allow the appeal and dismiss the cross appeal on the same terms

contain in the lead judgment,

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother MOHAMMED LAWAL GARBA, JCA. I agree with the judgment and adopt it as mine with nothing useful to add.

Appearances:

Awobiyide with Pearl Abraham and O. Wickeliffe For Appellant(s)

Banjoko for the Respondent/Cross Appellant
1st -4th Respondents not represented. For Respondent(s)