COL. CHARLTON EKUNDAYO & ANOR v. FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ANOR (2015)

COL. CHARLTON EKUNDAYO & ANOR v. FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ANOR

(2015)LCN/8064(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of March, 2015

CA/A/584/2011

RATIO

MEANING OF WORDS; THE MEANING OF WAIVER

Waiver in plain parlance means voluntary surrender of some known right or privilege; the Supreme Court described it as “…a simple and un technical concept… that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit or where he has a choice of two, he decides to take one…” AUTO IMPORT EXPORT V ADEBAYO (2005) 19 NWLR part 959 at 44. per. MOHAMMED MUSTAPHA, J.C.A.

LAND LAW: WAIVER OF RIGHT TO REVOKE; WHEN A STATUTORY RIGHT OF OCCUPANCY MAY BE REVOKED

LAND LAW: THE EXERCISE OF THE POWER VESTED IN THE GOVERNOR OF A STATE OR THE MINISTER IN DEALING WITH LAND TRUSTED TO HIM UNDER THE LAND USE ACT
This court holds the firm view that the powers vested in the governor of a state, or the Minister in this case, in dealing with land entrusted to him under the Land Use Act are rights for the public good, and the exercise of such rights under Section 28 of the Act has to conform with public interest; rights of parties in a right of occupancy cannot sue generis be therefore termed a personal contractual relationship, because they touch on the public interest; we are fortified in this belief by the decision of the Supreme Court in ATTORNEY GENERAL OF OGUN, BENDEL & BORNO STATES V ATTORNEY GENERAL OF THE FEDERATION & 2 ORS (1982) 1-2 SC 13 at 86, where it held: “power which is another form of legal right is either public or private. Public powers are those vested in a person as an agent or instrument of the functions of the state… and private powers, on the other hand, are those which are vested in persons to be exercised for their own purpose and not as agent of the state… when a statute confers a power on the holder of an office it is public power; and then unless the contrary intention appears from or in the statute, the power may be exercised only virtue officii.”
The respondents cannot therefore be said to have waived their right to revoke, because they cannot, as it is not within their competence to do so. per. MOHAMMED MUSTAPHA, J.C.A.

LAND LAW: REVOCATION OF RIGHT OF OCCUPANCY; THE REASON FOR THE REVOCATION OF RIGHT OF OCCUPANCY
This court is not convinced in the least that the only reason under Section 28 of the Land Use Act for the revocation of a right of occupancy is for overriding public interest; ADOLE V GWAR supra clearly dispelled any lingering doubts in that regard.
Fair hearing is a constitutional entitlement of all litigants at all times; having said that there does not appear to be any particular requirement of fair hearing in the Land Use Act with regard to revocation as a result of failure to comply with terms in the right of occupancy, as in this case; the respondents particularly, complied with Section 28 (6) and (7) with regard to notice as per Exhibit G, and that in the considered opinion of this court suffices to all intents and purposes.
Once the respondents are satisfied that there is a breach by the holder of a right as in this case the respondents are entitled to exercise their statutory powers; subject only to the issuance of notice of revocation of title and service of such notice. per. MOHAMMED MUSTAPHA, J.C.A.

LAND LAW: THE REVOCATION OF A RIGHT OF OCCUPANCY; THE MODE OF SERVICE OF THE NOTICE OF REVOCATION

JUSTICES

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

1. COL. CHARLTON EKUNDAYO
2. ARGIJI PROPERTIES LIMITED Appellant(s)

AND

1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
2. MINISTER OF FEDERAL CAPITAL TERRITORY Respondent(s)

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 24th of May, 2011, by Honourable Justice Maryanne E. Anenih.

The plaintiffs, now appellants, before the lower court claimed the following reliefs, at page 195 of the record of proceedings:

1. A declaration that the 1st plaintiff’s title to the plot No.1220 Cadastral Zone A4, Asokoro in issue is still intact, as purported revocation was not for any reason known to law, equity and good conscience.
2. A declaration that the purported revocation of the plaintiff’s plot by the defendants was not done in accordance to and/or in compliance with the provisions of the Land Use Act and hence illegal, void and of no legal effect.
3. Perpetual order of court restraining the defendants, either by themselves or their agents by whatever name called or description, anybody acting through and by them, from ever again disturbing the plaintiff’s quiet enjoyment of Plot No.1220, Cadastral Zone A4, Asokoro District.
4. Cost of this action.

The Lower Court dismissed the entire reliefs sought by the plaintiffs, now appellants; dissatisfied they now lodged this appeal by a notice dated and filed on the 7th of July, 2011, page 477 of the record.

Briefly stated the facts that necessitated the action at the Lower Court, and subsequently this appeal are that the appellants were allocated the land in dispute, i.e. Plot 1220 Cadastral Zone A4, Asokoro Abuja in 1992 by the respondents, with a statutory right of occupancy to boot, and later revoked the said right of occupancy, on the ground that the land was not developed in accordance with the terms and conditions of the Certificate of Occupancy, which required that the land be developed “…..within two years from the date of the commencement…” of the right of occupancy.

The notice of appeal contained eight grounds of appeal from which the following issues were formulated for determination by the appellants:

1. Whether the learned trial judge was right in holding that the equitable doctrine of waiver did not apply to the revocation of the appellants’ plot, and that if it did, waiver does not operate in perpetuity, ground one.
2. Whether the learned trial judge was right in holding that the reason for the revocation of the appellants’ right of occupancy not being for overriding public interest, is valid, constitutional and in accordance with Section 28 of the Land Use Act, grounds seven and eight.
3. Whether the learned trial judge was right in making far reaching findings on the issues of non development and breach of development approval which were issues not supported by the pleadings of the parties and thereby making a case for the respondents and against the appellants, ground two.
4. Whether the learned trial judge was right in upholding the notice of revocation in spite of patent non compliance with the provisions of Section 44 of the Land Use Act in the mode of service of same grounds 3, 4, 5 and 6.

On issue one Olasoji O. Orowolafe Esq. of counsel to the appellant submitted while referring to NWADIKE V AWKA SOUTH LOCAL GOVT. (2008) 16 NWLR part 1112 AT 220 AND NIGERIAN BANK FOR COMMERCE AND INDUSTRY V INTEGRATED GAS LTD (2005) 4 NWLR part 916 at 643 that where there is waiver there is estoppel; and that the 1st and 2nd respondents actually waived the provisions of clause 2 of the Right of occupancy, i.e. Exhibit E, and did so validly.

This is so learned counsel argued because Exhibit E was issued on the 2nd of September, 1992, from which date the appellants were to complete development on the property, of at least N1 Million within two years; and the two years lapsed on the 1st day of September, 1994.

Learned counsel further submitted that the respondents effectively waived the requirement for development within two years contained in clause 2 of Exhibit E, when they granted the appellants approval for development in 2002, the basis upon which the appellants commenced development.

That also the lower court was wrong to have held that the power to revoke a Right of occupancy cannot be subject of a waiver or that it cannot be so in perpetuity, as that contention amounted to equating a legal right to a legal duty; he referred this court to EDEWOR V UWEGBA (1987) 1 NWLR part 50 at 313.

That if Section 28 (5) (b) were mandatory the word “shall” would have been used instead of “May”; and a sanction for failure to carry out the duty would also have followed. But the Section is permissive, allowing the 1st defendant to decide on the breach of a term in the Certificate of Occupancy; learned counsel referred this court to AROIRI V ELEMO (1983) 1 SCNLR 1 at 13.

Learned counsel further submitted that the right of the governor to revoke a right of occupancy for overriding public interest does not include a breach of a term in the Certificate of Occupancy or a term of grant, and so he argued the revocation was wrong on that account; this is so he contended because Section 28(2) of the Land Use Act defined overriding public interest, and it does not include a breach of a term in the Certificate of Occupancy; he contended the provision of clause 2 of Exhibit E had been waived by the 1st respondent, and this court as a result should resolve this issue in favour of the appellant.

On issue two learned counsel submitted that the only valid and constitutionally acceptable reason for revocation of statutory right of occupancy is overriding public interest; to buttress the requirement of fair hearing to the holder when a certificate is revoked on account of breach he referred this court to ONONUJU v AG ANAMBRA (2009)10 NWLR part 1148 at 208, OSHO V FOREIGN FINANGE CORP (1991) 4 NWLR part 184 at 195, OGUNLEYE V ONI (1990) 2 NWLR part 135 at 745 and OTO V. ADOJO (2003) 7 NWLR part 820 at 636; and contended that the appellant was not given any fair hearing when a breach was alleged, but judged on a perceived breach, contrary to the requirements of the Land Use Act; and the plot in dispute allocated to another person contrary to Section 28(2) of the Land Use Act; he urged this court to resolve this issue in favour of the appellant.

On issue three learned counsel submitted that the appellants as borne out by page 198 of the record developed the land, but not to completion; and there was no evidence from the respondents that the right was revoked because the value of development was not as required by Exhibit E; yet the Lower Court found that the evidence before it amounted to conceding to breach of terms of Exhibit E, as per page 466 of the record.

The implications of these findings learned counsel contended meant the Lower Court expected the appellants to prove the extent of development which was not an issue between the parties, thus unilaterally adding what is not legally required to the evidential burden of the appellants; as admitted facts need no further proof; he referred this court to OMIDIORA V FEDERAL CIVIL SERVICE COMMISSION (2007) 14 NWLR part 1053 at 32.

The Lower Court’s finding would have been relevant he submitted if the reason for the revocation was that the development had not reached the level required, or any particular level.

The finding of the Lower Court, learned counsel further argued made a case for the respondents, different from their pleadings, making their case stronger, and weakening the case of the appellants; he referred this court to UBN (NIG) PLC V EMOLE (2001) 18 NWLR part 745 at 518.

On Issue Four learned counsel submitted that where the law prescribes a method by which an act could be validly done, noncompliance means the act could not be accomplished; he referred the court to AMAECHI V INEC (2008) 5 NWLR part 1080 at 318 and Section 44 of the Land Use Act.

That the law required strict compliance for service of revocation to be effective, and service in this case was not affected on the appellants in accordance with the law. As the respondents used a pre paid registered bulk mail to serve the notice of revocation on the appellants, as per Exhibit H.

Learned counsel contended pre paid bulk mail is not the same with pre paid registered mail; that the Lower Court failed to meet the requirement of the law in DAILY TIMES V AMAIZU, supra, i.e. in establishing that they paid extra, to protect the letter.

Learned counsel while referring to C.S.S. BOOKSHOP LTD V R.T.M.C.R.S (2006) 11 NWLR part 992 at 577 contended that the provisions of Section 44(1) (c) of the Land Use Act ought to have been construed strictly against the revoking authority as held by the Supreme Court, that when a statute that seeks to take away proprietary right comes up for construction it should be construed strictly against the acquiring authority. He urged this court to resolve this issue in favour of the appellants.

In response a sole issue for determination was formulated for the respondents in the brief settled by Oyetola Oshobi Esq., as:

Whether the learned trial judge was right when he held that the respondents’ revocation of the appellants’ interest in Plot 1220 Cadastral Zone A4, Asokoro Abuja was in accordance with the provisions of The Land Use Act?

It is submitted for the respondents on the exercise of the power of revocation that contrary to the contention of learned counsel for the appellants, a right of occupancy can be revoked by the governor, not only in the overriding public interest but also on grounds of breach of any of the terms contained in the Certificate of Occupancy; learned counsel referred the court to part V of the Land Use Act and Section 28 of the Act, as well as ADOLE v. GWAR (2008) 11 NWLR part 1099 at 591 and OLOHUNDE V. ADYOJU (2000) 10 NWLR part 676 at 562.

That following the appellants’ failure to adhere to Exhibit E the notice of revocation, Exhibit G clearly stated the revocation was “…for your continued contravention of the terms of development of the right of occupancy.”

Learned counsel contended this default falls within the ambit of Section 28 (5) of the Act, and the Lower Court was right in its findings; and also that the issue of fair hearing was never pleaded by the appellant before the Lower Court, and therefore raising it now is inappropriate as the issue is not supported by evidence; he referred this court to AMERICAN CYMID v. VITALITY PHARM. NIG. LTD (1991) 2 NWLR part 171 at 15.

It is further submitted for the respondents on the mode of communication of the notice of revocation that the respondents adequately discharged the burden placed on them by showing that they dispatched the notice of revocation and indeed paid extra to protect the mail from loss or damage vide Exhibit H, i.e. the registered postal receipt, as required by DAILY TIMES NIG. PLC V AMAIZU (1999) 12 NWLR part 630 at 24, thus complying with Section 44 of the Act.

On the issue of waiver it is submitted for the respondents that the reasoning of the Lower Court was beyond reproach, especially in view of the fact that the 1st appellant failed to meet the requirement even as at 1994, two years after the grant of the right of occupancy; learned counsel referred this court to ARIORI & ORS V ELEMO & ORS (1983) 1 SC at 13, where the Supreme Court held that once a right conferred on a party is completely within competence of the state and there is an element of public interest involved, the party has nothing to waive; and also that where a right in question is a public right, even where it conferred benefits on individuals such rights cannot be waived by the parties.

Learned counsel further submitted that appellants received a building plan approval in the year 2000, and when the property was revoked in 2005 they had not erected or completed the structure on the property and so the respondents cannot be said to have perpetually waived the right to revoke.

It is also submitted for the respondents that the reason for revocation as contained in Exhibit G was clearly the breach of terms contained in the right, i.e. failure to develop, and evidence was led in that regard, as a result of which the Lower Court on balance of probability sided with the respondents and dismissed the claims.

That no burden other than the one required was therefore placed on the appellants by the Lower Court as claimed; and also that this court cannot grant the reliefs sought by the appellants, just as the Lower Court could not grant same, because the reliefs now involve the rights and interests of a third party who was neither a party at the lower court nor a party before this court, especially as the said third party was never heard in the matter; he referred this court to UKPO V NGAJI (2010) 1 NWLR part 1174 at 175, and urged this court to disallow this appeal.

In reply it is submitted for the appellants that the respondents failed to cite any authority stating that the Land Use Act should not be construed sympathetically in favour of the person whose property is being taken.

That also the appellants challenged the legality and constitutionality of the revocation by their pleadings, and so it is wrong to assume that fair hearing was not pleaded; learned counsel referred to YOUNG V JUDICIAL SERVICE COMMITTEE, CROSS RIVER STATE (2008) 9 NWLR part 1091 at 12.

Learned counsel submitted that Section 169 of the Evidence Act does not allow for exemption of the respondents or anybody; and also that appellants did not seek any relief against a third party interest, but most importantly this issue is not related to any ground of appeal, and cannot be raised at this point.

Learned counsel argued that the third party is unknown; and the respondents cannot in any way be protectors of an unknown third party.

Upon a careful consideration of the issues formulated by both sides, this court is satisfied that the issues as formulated by the appellant suffice for the determination of this appeal; issues 1 and 2 will be taken together, so also three and four, not only for convenience but also for the bearing they have on each other. Issues one and two are:

The appellants’ borne of contention is that the failure of the respondents to exercise their right to revoke the right of occupancy in 1994, at the expiration of two years as stated therein, i.e. Exhibit E, coupled with the grant of building plan approval in 2002, meant a clear waiver of the right to revoke the right of occupancy; whereas the respondents contend they could not have waived a public right conferred by statute; and even if it is assumed they did, such a waiver cannot operate in favour of the appellant in perpetuity.

The question of whether this court should sympathetically interpret the provisions of the Land Use Act in favour of the appellants or not amounts to little or next to nothing in the face of the all important twin questions of whether there was a waiver by the respondents or not and whether revocation is only possible for overriding public interest. Frankly it is the least of our worry, counsel on both sides dissipated unnecessary amount of energy on that question in the circumstances.

The right claimed to have been waived is contained in clause 2 (i) of the Right of Occupancy, Exhibit E, granted to the 1st appellant; for the avoidance of doubt it reads:

“within two years from the date of commencement of this Right of Occupancy to erect and complete on the said land the buildings or other works specified in the detailed plans approved or to be approved by the Federal Capital Development Authority or other officer appointed by the President, such buildings or other works to be of such value of not less than (N1 Million) and to be erected to the satisfaction of the said Federal Capital Development Authority or other officer appointed by the President.”

The appellants contend that the Lower Court erred when it equated legal right to legal duty, in its understanding of Section 28 of the Land Use Act; pointing out that Section 28(5) of the Act used the word “may” as opposed to “shall”, suggesting that the duty imposed on the 1st respondent to revoke for failure to develop is not mandatory.

There does not appear to be any dispute as to whether the 1st respondent has a right to revoke Exhibit E; the argument on both sides is centred on whether the right was or/can be waived.

PW1 for the appellant, at the Lower Court stated that the 1st appellant failed to meet the conditions in Exhibit E as at 1994, two clear years after the grant in 1992, when the requirement for development took effect; and applied for building plan approval which he got in, 2002, as per page 416 of the record of proceedings.

The record also shows, from evidence of DWS 1 and 2 at pages 420 and 424 of the record, that even at the point of revocation in 2005 there was no development on the land in dispute.

This court is of the humble but firm view that while there may not be any express provision in the Land Use Act forbidding the right of the 1st respondent to waive his right to revoke for failure to meet terms in the Certificate of Occupancy, as it was argued for the appellants, the decision of the Supreme Court in ARIORI V ELEMO supra is very clear and instructive in this regard; this decision was further reinforced by the decision in MENAKAYA V MENAKAYA (2001) 16 NWLR part 738 at 2 where it was also held that: “…whether the statute confers purely private or individual rights which may be waived, or whether the statutory provision confers right of public nature as a matter of public policy, if it is the later, the provision of such statute cannot be waived, as no one is permitted to contract out a rule of public or constitutional policy.”
It is clear from the fore going that FASADE V BABALOLA (2003) 11 NWLR (PT.830) 26 supra does not operate against the respondents as contended; indeed the principle of law is what counts more often than not. It is wrong to assume or insist that the facts of two distinct cases have to be exactly the same and fit like a glove, or else they be distinguished, that is not the essence of stare decisis. It is for this reason that the Supreme Court held that “facts have no views. A judgment should always be read in the light of the facts on which the case was decided. The rules of stare decisis do not allow courts to apply the ratio of a case across the board and with little regard to the facts of the case before them.”
In the light of the foregoing the Lower Court was impeccably right when it held “…that Section 28 of the Land Use Act is very clear on when a statutory right of occupancy may be revoked, a public duty/right such as the power of revocation under the present circumstances cannot be waived merely because it was not exercised…”
This court holds the firm view that the powers vested in the governor of a state, or the Minister in this case, in dealing with land entrusted to him under the Land Use Act are rights for the public good, and the exercise of such rights under Section 28 of the Act has to conform with public interest; rights of parties in a right of occupancy cannot sue generis be therefore termed a personal contractual relationship, because they touch on the public interest; we are fortified in this belief by the decision of the Supreme Court in ATTORNEY GENERAL OF OGUN, BENDEL & BORNO STATES V ATTORNEY GENERAL OF THE FEDERATION & 2 ORS (1982) 1-2 SC 13 at 86, where it held: “power which is another form of legal right is either public or private. Public powers are those vested in a person as an agent or instrument of the functions of the state… and private powers, on the other hand, are those which are vested in persons to be exercised for their own purpose and not as agent of the state… when a statute confers a power on the holder of an office it is public power; and then unless the contrary intention appears from or in the statute, the power may be exercised only virtue officii.”
The respondents cannot therefore be said to have waived their right to revoke, because they cannot, as it is not within their competence to do so.

It is argued for the appellants that the only valid reason for revocation of a right of occupancy is overriding public interest; this argument is based on Section 28 (1) and (2) of the Land Use Act. Section 28 of the Land Use Act is indeed the law empowering the governor to revoke right of occupancy granted by him or deemed granted by him, the relevant parts of the section for the avoidance of doubt reads:
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 (b) the requirement of the land by the government of the state or by local government in the state, in either case for public purpose within the state, or the requirement of the land by the government of the Federation for public purposes of the Federation.
Sub-Section (5) of the same act reads:
The governor may revoke a statutory right of occupancy on the ground of (a) a breach of any of the provisions which a certificate of occupancy is by Section 10 of this Act deemed to contain;
(b) a breach of any term contained in the Certificate of Occupancy or any special contract made under Section 8 of this Act;
(c) a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the governor under Subsection (3) of Section 9 of this Act.
It is clear from the above provisions of the Act that the revocation of a right of occupancy is not limited to overriding public interest as contended for by the appellants. The Supreme Court held in ADOLE v. GWAR (2008) 11 NWLR part 1099 at that : “under the Land Use Act, the only recognised manner of extinguishing a vested right is by revoking the same for any of the following reasons: (a) for overriding public interest (b) for public purpose (c) for breach of the provision of Section 10 of the Land Use Act (d) for breach of any terms envisaged by Section 8 of the Act (e) for failure to comply with the requirements specified in Section 9 (3) of the Act.
Exhibit G, the notice of revocation is unambiguous about the source of the minister’s power to revoke, it clearly stated the power is exercised in accordance with Section 28 (5) (a) and (b) of the Land Use Act; the respondents’ explanation being that the appellants failed to adhere to the terms of the right of occupancy.
On this score the Lower Court was right when it held that “…the arguments of the plaintiff on the issue emanates from a misunderstanding of the authorities referred… ONONUJU V AG ANAMBRA supra, does not support the plaintiffs’ contention that public interest ought to be the only ground of revocation of a right of occupancy….in that case overriding public interest was only given as an example of one of the reasons for acquisition provided for in the Land Use Act…the revocation notice, Exhibit G appears to be in line with Section 28(6) and 44 (c) of the Land Use Act…”
This court is not convinced in the least that the only reason under Section 28 of the Land Use Act for the revocation of a right of occupancy is for overriding public interest; ADOLE V GWAR supra clearly dispelled any lingering doubts in that regard.
Fair hearing is a constitutional entitlement of all litigants at all times; having said that there does not appear to be any particular requirement of fair hearing in the Land Use Act with regard to revocation as a result of failure to comply with terms in the right of occupancy, as in this case; the respondents particularly, complied with Section 28 (6) and (7) with regard to notice as per Exhibit G, and that in the considered opinion of this court suffices to all intents and purposes.
Once the respondents are satisfied that there is a breach by the holder of a right as in this case the respondents are entitled to exercise their statutory powers; subject only to the issuance of notice of revocation of title and service of such notice.

Consequently this court now resolves issues one and two in favour of the respondents, and holds that the equitable doctrine of waiver does not apply in this case, because the right conferred under the Land Use Act is of a public nature, and the provision of the act cannot therefore be waived in this regard. The question of whether or not it operates in perpetuity therefore does not arise in this case; and also that the power of revocation of a right of occupancy is not limited to overriding public interest but also includes breach of any terms of development of the right of occupancy.

Issues three and four are:

3. Whether the learned trial judge was right in making far reaching findings on the issues of non development and breach of development approval which were issues not supported by the pleadings of the parties and thereby making a case for the respondents and against the appellants, ground two.

4. Whether the learned trial judge was right in upholding the notice of revocation in spite of patent non compliance with the provisions of Section 44 of the Land Use Act in the mode of service of same, grounds 3, 4, 5 and 6.

The appellants contend that by clause 2 of Exhibit E there was a value which such development must not be lower than, and the respondents failed to establish that the revocation was because the value was not up to the amount stated; and yet the Lower Court found at page 466 that “…there is no evidence before this court…of the extent of development…the only evidence led on the development was that they developed and demolished of their own volition, for non conformity with development approval; that evidence in itself where it stands would amount to conceding to breach of terms of statutory right of occupancy…”; that as a result of the Lower Court’s findings it put more burden on the appellants than is legally required.

A trial court is at liberty to arrive at conclusions based on verifiable evidence presented before it; it is no business of any appellate court to substitute its views of the evidence for that of the learned trial judge; doing so will only result in miscarriage of justice.
This court is satisfied that the ground for revocation as contained in Exhibit G was clearly for breach of the terms of the right of occupancy i.e. failure to develop; and this is the case made out by the respondents, as per their amended statement of defence page 143 of the record; evidence was also led in this regard through DW1 and W2, as per pages 420 and 424 of the record of appeal.
It is therefore these testimonies that the Lower Court believed, and ascribed probative values to, leading it to arrive at the conclusions it did. This court cannot in the circumstances substitute these views with its own; we are fortified in this by the decision of the Supreme Court in OKUNZUA V AMOSU & ANR (1992) NWLR part 248 at 416 AND OLANREWAJU V GOV. OYO STATE (1992) NWLR part 255 at 335, where it was held that “… it is not the function of an appellate court to make findings of fact where this has been done by the trial court, and to reopen issues of fact finally determined by the trial court… even if it would have come to a different finding if it were to do so.”

We do not therefore believe that any extra burden was placed on the appellants, by the Lower Court, other than the required burden to prove the development on the land.

The notice of revocation of a right of occupancy is indeed very important, because it informs the holder thereof the steps taken to extinguish his right of occupancy; thus the service of notice of revocation is sine qua non; and the mode of service of such notice is prescribed in Section 44 of the Land Use Act; which reads:
“any notice requiring by this Decree to be served on any person shall be effectively served on him, (a) by delivering it to the person on whom it is to be served; (b) by leaving it at the usual or last known place of abode of the person; (c) by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; (d) in the case of an incorporated company or body, by delivering it to the Secretary or Clerk of the Company…”
The appellants argue that service in this case did not comply with (e) above, contending that prepaid bulk mail is not the same thing as prepaid registered letter; the Lower Court saw this distinction as merely semantic.
The respondents notice of revocation was issued to the 1st appellant by prepaid bulk mail; the receipt issued was tendered as Exhibit H; the appellants argued payment for the mail is not enough, but that evidence ought to be led to establish extra was paid, to protect the mail.
It is the considered opinion of this court, contrary to the contention of the appellants that Exhibit H is enough, as it indeed satisfies the requirements of Section 44 of the Act; it suffices, to show that the respondents adopted a special arrangement for payment, and were issued a receipt, see DAILY TIMES NIGERIA PLC V AMAIZU (1999) 12 NWLR PART 630 AT 242; accordingly issues three and four are also resolved in favour of the respondent, and against the appellant.

Having resolved all the four issues involved in favour of the respondents, and against the appellants the appeal fails for lack of merit, and it is accordingly dismissed; the decisions of the Lower Court are hereby affirmed.

Parties to bear their costs.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Mustapha, JCA. I am in agreement with the reasoning and conclusion reached therein.

I also abide by the order as to costs.

JOSEPH E. EKANEM, J.C.A.: I read in draft the judgment just delivered by my learned brother, Mustapha, JCA; and I am in complete agreement with it.

A right of a public nature which is intended for the public benefit is incapable of being waived because it enures to the benefit of the public and not a person or section of the public. It must also be stated that even if a right is capable of being waived, the waiver may be complete or partial. See ARIORI V. ELEMO (1983) 1 SC NLRI, 8. In the instant case, even if the right to revoke the certificate of occupancy for breach of one of its terms could be waived (which is not so) the waiver was partial and could be rescinded at anytime by the 2nd respondent.

To hold otherwise would imply that after the approval of the building plan which the appellants hoisted as a waiver, 1st appellant could go to sleep till kingdom come without erecting or completing the erection of the specified building while the 2nd respondent would be left incapable of revoking the certificate of occupancy for such breach because of an alleged waiver. That would be contrary to the intendment of Section 28(5) (b) of the Land Use Act.

It was conceded in paragraphs 4.2.8-4.2.12 of the appellants’ brief that a certificate of occupancy may be revoked for breach of terms contained in the certificate of occupancy but it was added that the respondent did not give the appellants fair hearing before doing so. I agree with counsel for the respondents that this issue was not raised in the pleadings of the parties. In the case of AMOBI V. NZEGWU (2014) 2 NWLR (1992) 510, 544, the Supreme Court, quoting ORUNGENIMO V. EGEBE (2007) 15 NWLR (1058) 630, held that issues not raised in the pleadings of the parties and therefore not tried at the trial court cannot be raised at the appellate court through the ingenuity of counsel.
What the appellants have sought to do in regard to the above is to embark on a case different from that set up at the trial court. The law frowns at this. See ECONET WIRELESS (NIG) LTD v. ECONET WIRELESS LTD (2014) 7 NWLR (1405) 1, 25.

The appeal is without merit and I also dismiss the same.

Appearances

O. O. Olowolafe Esq., with OwonlaFor Appellant

AND

B. B. Lawal Esq., with Miss Momoh for the 1st and 2nd RespondentsFor Respondent