D- INVESTMENT & REALTORS CO. LTD & ANOR v. AG & COMM. FOR JUSTICE, OGUN STATE & ANOR (2022)

D- INVESTMENT & REALTORS CO. LTD & ANOR v. AG & COMM. FOR JUSTICE, OGUN STATE & ANOR

(2022)LCN/16307(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, June 28, 2022

CA/IB/508/2018

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

YargataByenchitNimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. D- INVESTMENT AND REALTORS COMPANY LIMITED 2. ENGINEER WALI OLAYIWOLA AKANDE APPELANT(S)

And

1. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, OGUN STATE 2. BUREAU OF LANDS AND SURVEY, OGUN STATE RESPONDENT(S)

RATIO:

THE PROPER EVALUATION OF EVIDENCE BEFORE ARRIVING AT A DECISION

On the evaluation of evidence made by the lower Court, he submitted and urged us to hold it did a proper evaluation of the evidence on record before arriving at its decision. He reiterated the settled position of the law that it is not every slip committed by a Court that will adversely affect its decision. It will only do where such omission has occasioned a miscarriage of justice. He craved in aid of his submission the cases of MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL VS. OKONKWO(2001) NWLR (PT. 111) 206, BAYOL VS. AHEMBA(1999) 10 NWLR (PT. 623) 381; OBIOHA VS. IBERO(1994) 1 NWLR (PT. 322) 503.
He finally urged us to dismiss the appeal. FOLASADE AYODEJI OJO, J.C.A.

THE JUDGE MUST BE SATISFIED THAT THE APPLICANT HAS SUFFICIENT INTEREST IN THE MATTER BEFORE GRANTING AN ORDER OF MANDAMUS

It is trite that Mandamus is a prerogative writ issued by a Court of competent jurisdiction to compel the performance of a particular act by an inferior Tribunal or a Government official or administrative body to correct a prior action or failure to act. It is an equitable remedy granted at the discretion of the Court and like all other discretionary powers of a Court must be exercised judicially and judiciously. It isnot one to be issued at the whims and caprices of the Judge. Before an order of mandamus is granted, the Judge must be satisfied that the applicant has sufficient interest in the matter to which the order relates and that a demand has been made by him for the performance of the public duty from the persons responsible and they refused to comply. There is also the added responsibility for the demand to be made timeously See IKECHUKWU VS. NWOYE (2015) 3 NWLR (PT. 1446) 367, ATUNGWU VS. OCHEKWU (2013) 14 NWLR (PT. 1375) 605, AYIDA VS. TOWN PLANNING AUTHORITY (2013) 10 NWLR (PT. 1362) 226, ASSOCIATED DISCOUNT HOUSE LTD. VS MINISTER OF THE FEDERAL CAPITAL TERRITORY (2013) 8 NWLR (PT. 1357) 493. FOLASADE AYODEJI OJO, J.C.A.

SUFFICIENT MATERIALS MUST BE PLACED BEFORE THE COURT BEFORE IT CAN EXERCISE ITS DISCRETIONARY POWER

It is therefore not in dispute that there existed a public duty for which an order of mandamus may issue against the Respondent. The law as stated by the Courts in a long line of authorities is that a person who seeks the exercise of the discretionary powers of a Court in his favour must place sufficient materials before it to assist in the proper exercise of its discretion. See JIMOH VS. MINISTER FEDERAL CAPITAL TERRITORY (2019) 5 NWLR (PT. 1664) 45, IN RE YAR’ADUA (2011) 17 NWLR (PT. 1277) 567, S&D CONSTRUCTION COMPANY LIMITED VS. AYOKU (2011) 13 NWLR (PT. 1265) 487 DUWIN PHARMACEUTICALCHEMICAL CO. LTD. VS. BENEKS PHARMACEUTICAL & COSMETICS LTD. (2000) 15 NWLR (PT. 689) 66. FOLASADE AYODEJI OJO, J.C.A.

THE ISSUES OF LAW AND THOSE BOTHERING ON THE JURISDICTION OF THE COURT MAY BE RAISED SUO MOTO

The general rule is that a Court shall not raise and determine an issue suomotu without hearing from the parties. There are however exceptions to this general rule. The general rule applies where the issue raised is mainly an issue of fact. A Court may raise and determine an issue of law or jurisdiction suomotu. In other words, issues of law and those bothering on the jurisdiction of the Court may be raised suomotu and determined by the Court without hearing the parties. See AKAOLISA VS AKAOLISA (2021) LPELR–56866 (SC), ONI VS. FAYEMI(2020) 15 NWLR (PT. 1746) 59 OGAR VS. IGBE (2019) 9 NWLR (PT. 1678) 534, TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517, AKEREDOLU VS. ABRAHAM (2018) 10 NWLR (PT. 1628) 510 AND IKENTA BEST NIGERIA LIMITED VS. ATTORNEY GENERAL RIVERS STATE (2008) 6 NWLR (PT. 1084) 612. FOLASADE AYODEJI OJO, J.C.A.

A COURT IS AT LIBERTY TO RELY ON AUTHORITIES CITED TO IT BY PARTIES

A Court of law shall not confine itself only to authorities cited by parties. The Court is at liberty to rely on authorities cited to it by parties or suomotu make reference to any book, authority or statute which he finds relevant to the issues before it. It is to be noted that generally, counsel cites authorities favourable to their clients and it therefore behooves on the Judge as the independent umpire to consider all available authorities relevant on the issue(s) before him so as to arrive at a just and proper decision. See BENJAMIN VS. STATE (2019) 15 NWLR (PT. 1696) 541, ORUGBO VS. UNA (2002) 16 NWLR (PT. 792) 175, FAWEHINMI VS. AKILU (1987) 4 NWLR (PT. 67) 797 AT 843 AND MAGIT VS. UNIVERSITY OF AGRICULTURE MAKURDI(2005) 19 NWLR (PT. 959) 211.
In any event, a careful perusal of the affidavit evidence before the lower Court reveal that the registration of the Certificate of Occupancy was in issue between the parties. The issue was not raised suomotu by the trial Judge and even where he did, the law empowers him to so do and I so hold.

THE EVALUATION OF EVIDENCE IS THE TASK OF THE TRIAL JUDGE

It is trite that the task of evaluation of evidence is that of the trial Judge and an appellate Court will only interfere with the findings made by him only where such findings are perverse. See AJUWA VS. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2011) 18 NWLR (PT. 1279) 797, NWADOZIE VS. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES (2007) 13 NWLR (PT. 1050) 113 AND NZERIBE VS. DAVE ENGINEERING CO. LTD. (1994) 8 NWLR (PT.36) 24. FOLASADE AYODEJI OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The Appellants by a motion on Notice filed before the Ogun State High Court sought the following relief:
“An order of the Honourable Court granting/compelling the Defendants/Respondents, their officers or agents to exercise the legal duty on them to release to the 1st Claimant/Applicant the Certificate of Occupancy on the Applicants parcel of land situate at Block 26C, Plot 1, within River View Estate Isheri, Ogun State and measuring approximately 5.756 Hectares with Title No. 15/5/851 duly executed by the Executive Governor of Ogun State on 14-05-2011.”

After hearing arguments from Counsel on both sides, the learned trial Judge in a considered judgment delivered on the 10th of September, 2018 found no merit in the application and dismissed it.

Dissatisfied with the judgment the Appellants who were the applicants at the lower Court filed the instant appeal. The Notice of Appeal filed on the 22nd of November, 2018 contains two grounds of appeal.

Briefly, the facts of the case are that sometimes in the year 2006, the 1st Appellant applied to the Respondents for approval and accommodation on the land known as Block 26c Plot 1, within the River View Estate, Isheri measuring approximately 5.756 Hectares. The Respondents vide a letter dated 15th August, 2006 conveyed the conditions for the approval to the Appellants. The conditions include the payment of some fees totaling N3,333,000.00 (Three Million, Three Hundred and Thirty-Three Thousand Naira) only. Upon receipt of the letter, the 1st Appellant paid the sum of N2,000,000 to the Respondents. They made some other payments thereafter. The Respondents prepared a certificate of occupancy on the property which they refused to release to the Appellants on the ground that the conditions were not fully met. It is the refusal to release the Certificate of Occupancy that necessitated the action at the lower Court.

The Record of Appeal was transmitted to this Court on the 13th of December, 2018. Parties filed and exchanged their respective Briefs of Argument. The Appellants’ brief of Argument settled by Omoniyi Johnson Odeyemi of Counsel filed on 25th of June 2020 was deemed as properly filed on the 8th of November 2021. The 1st and 2nd Respondents’ Brief of Argument settled by Mrs. I.N. Ajide-Bello filed on 29th of March, 2022 was deemed as properly filed on the 4th of April, 2022.

Counsel to the Appellants formulated the following four issues for the determination of this appeal:
1. Whether in the state of the law, the pleadings and evidence before it, the lower Court was right when it failed to make a finding and pronouncement on the evidence and issues raised by the Applicants/Appellants and the prayer itself.
2. Whether in the circumstances of this case the Appellants are entitled to judgment in the face of the unchallenged and uncontroverted evidence adduced and presented on the issues placed before the Court.
3. Whether the lower Court was right in raising the issue of registration under S.19 of the Land Instrument Registration Law suomotu and deciding on same without hearing the parties to the suit.
4. Whether the lower Court was right in granting the Respondents the reliefs that were not prayed for.

For his part, Counsel to the 1st and 2nd Respondents distilled three issues to wit:
1. Whether the Appellants conformed to the conditions laid down by the Respondents and fulfilled all the condition precedent to be entitled to reliefs sought at the lower Court.
2. Whether the issue of Registration should have been salient despite the fact that it was the main fact in issue.
3. Whether the lower Court granted reliefs not prayed for.

I have earlier on stated that the Notice of Appeal filed on behalf of the Appellants contains two Grounds of Appeal. The law is settled that a party cannot formulate more than one issue from a Ground of Appeal. Where a party formulates more than one issue from a Ground of Appeal, he is guilty of what is called proliferation of issues which has been condemned severally by the Appellate Courts. See ENL CONSORTIUM LIMITED VS. DONASULU BROTHERS NIGERIA LTD. (2020) 8 NWLR (PT. 1723) 179, CHIADI VS. AGGO (2018) 2 NWLR (PT. 1603) 175, HUSSENI VS. MOHAMMED (2015) 3 NWLR (PT. 1445) 100, OLUSANYA VS. OSINLEYE (2013) 12 NWLR (PT. 1367) 148 AND OKWUAGBALA VS. IKWUEME (2010) 19 NWLR (PT. 1226) 54. Both parties in this appeal who have formulated more issues than the Grounds of Appeal are guilty of proliferation of issues and the issues formulated by them are liable to be struck out.

It is however settled that since appeals are heard and determined on briefs of argument of parties a Court may in the interest of justice reformulate the issues. The Court does that to do away with prolixity and for clarity. See YOUNG SHALL GROW MOTORS LIMITED VS. ONALAJA (2021) 3 NWLR (PT. 1763) 300,AUWALU VS. FEDERAL REPUBLIC OF NIGERIA (2018) 8 NWLR (PT. 1620) 1, PLATEAU STATE HEALTH SERVICES MANAGEMENT BOARD VS. GOSHWE (2013) 2 NWLR (PT. 1338) 383 AND UNITY BANK PLC VS. BOUARI (2008) 7 NWLR (PT. 1086) 372.

I have gone through the two Grounds of Appeal and it is my view that the following sole issue would suffice.
Whether having regards to the state of the law and the affidavit evidence on record, the lower Court was right when it refused to grant the order of Mandamus sought by the Appellants.

It is the contention of Appellants’ Counsel that by refusing to release the certificate of occupancy over the property the Respondents denied the Appellants their right to own movable and immovable property as guaranteed by Section 43 and Section 34(1) of the Constitution of the Federal Republic of Nigeria, 1999. He also relied on the provision of Section 9(1) of the Land Use Act which provides for the issuance of Certificate of Occupancy to citizens who meet the requirement. He argued that the Appellants who met the requirements are entitled to the Certificate of Occupancy applied for.

He submitted the lower Court failed to evaluate the affidavit evidence on record before arriving at its decision. This he submitted is contrary to the trite position of the law. He craved in aid of his submission the cases of SEA FOOD FACTORY LIMITED VS. ALRAINE LIMITED & ANOR (2002) FWLR (PT. 125) 756 AND EYA & ORS VS. ALHAJI QUDUS & ANOR (2002) FWLR (PT. 106) 1089.

He referred us to the case of AGBODIKE VS. ONYEKABA (2001) 10 NWLR (PT. 722) 516 to submit that issuance of a title document operates as evidence of payment of money. He further referred us to the cases of AGBI VS. OGBE (2004) 5 MJSC 41, JOE GOLDAY CO. LTD. VS. COOPERATIVE DEVELOPMENT BANK PLC (2003) 4 MJSC 171, NEPA VS. OSOSANYA (2004) 4 MJSC 90 on when an appellate Court can interfere with the findings of fact made by a trial Judge. He urged us to review the evidence on record and decide the dispute in accordance with the law.

He highlighted some issues which according to him were not canvased by the parties but raised suomotu by the learned trial Judge. He relied on the cases of TRADE BANK PLC VS. CHAMI (2003) 42 WRN 129, ILONA VS. IDAKWO (2003), NWANYA VS NWANYA (1987) 3 NWLR (PT. 62) 697 AND EKPENYONG VS. NYONG (1975) 2 SC 71 and urged us to set aside the judgment of the lower Court for granting reliefs not sought by the parties.
He finally urged us to allow the appeal.

Arguing per contra, learned Counsel to the Respondents submitted that contrary to the case presented by them the Appellants did not fulfill all the conditions provided for in the letters written to them by the 2nd Respondent. He submitted the Appellants failed to pay the required fees for the processing of the certificate of occupancy until four years after the due date. He relied on the case of NIGERCARE DEVELOPMENT CO. LTD. VS. ADAMAWA STATE WATER BOARD & ORS (2008) 9 NWLR (PT. 1093) 498; OWENA BANK (NIG.) PLC VS. ADEDEJI (2002) 2 NWLR (PT. 666) 609 on the meaning and effect of the word “condition precedent.” He further submitted that S. 28 (5) (c) and 9(3) of the Land Use Actem powers the Governor to revoke and/or cancel a certificate of occupancy where the person in whose name it was issued fails to accept and pay for it. He submitted the Appellants breached the terms of the issue of the certificate of occupancy. He craved in aid of his submission, the case of ROMAINE VS. ROMAINE (1992) LPELR–2953 (SC). On the issue of waiver, he argued that the several payments made by the Appellants do not qualify as a waiver as there was no evidence that they were granted extension of time to pay. He submitted the Court will only exercise its discretion in favour of the Appellants if he places sufficient materials before it to justify same.

The relief sought by the Appellants at the lower Court is as follows:
“An order of this Honourable Court granting/compelling the Defendants/Respondents their offices or agents to exercise the legal duty on them to release to the 1st Claimant/Applicant the certificate of occupancy on the Applicants’ parcel of land situate at Block 26c Plot 1 within River View Estate, Isheri Ogun State and measuring approximately 5.75 hectares with Title No. 15/15/851 duly executed by the Executive Governor Ogun State on 14-05-2011”

The above relief sought by the Appellants is in the form of an order of Mandamus. It is trite that Mandamus is a prerogative writ issued by a Court of competent jurisdiction to compel the performance of a particular act by an inferior Tribunal or a Government official or administrative body to correct a prior action or failure to act. It is an equitable remedy granted at the discretion of the Court and like all other discretionary powers of a Court must be exercised judicially and judiciously. It is not one to be issued at the whims and caprices of the Judge. Before an order of mandamus is granted, the Judge must be satisfied that the applicant has sufficient interest in the matter to which the order relates and that a demand has been made by him for the performance of the public duty from the persons responsible and they refused to comply. There is also the added responsibility for the demand to be made timeously See IKECHUKWU VS. NWOYE (2015) 3 NWLR (PT. 1446) 367, ATUNGWU VS. OCHEKWU (2013) 14 NWLR (PT. 1375) 605, AYIDA VS. TOWN PLANNING AUTHORITY (2013) 10 NWLR (PT. 1362) 226, ASSOCIATED DISCOUNT HOUSE LTD. VS MINISTER OF THE FEDERAL CAPITAL TERRITORY (2013) 8 NWLR (PT. 1357) 493.

It is apparent ex facie the Record that the application for the order of mandamus was predicated on an application made by the Appellants to the Respondents for approval for accommodation for the Appellants property within the River View Estate Isheri Ogun State. The complaint of the Appellant is that its application was approved and certificate of occupancy was duly executed by the governor of Ogun State, but the Respondents refused to release it despite repeated demand.

Parties to this appeal were on common ground at the lower Court that the Respondents had a public duty to prepare, register and release title documents after the fulfillment of all condition precedent. It is therefore not in dispute that there existed a public duty for which an order of mandamus may issue against the Respondent. The law as stated by the Courts in a long line of authorities is that a person who seeks the exercise of the discretionary powers of a Court in his favour must place sufficient materials before it to assist in the proper exercise of its discretion. See JIMOH VS. MINISTER FEDERAL CAPITAL TERRITORY (2019) 5 NWLR (PT. 1664) 45, IN RE YAR’ADUA (2011) 17 NWLR (PT. 1277) 567, S&D CONSTRUCTION COMPANY LIMITED VS. AYOKU (2011) 13 NWLR (PT. 1265) 487 DUWIN PHARMACEUTICALCHEMICAL CO. LTD. VS. BENEKS PHARMACEUTICAL & COSMETICS LTD. (2000) 15 NWLR (PT. 689) 66.

The question now is whether the appellants placed sufficient materials before the lower Court to entitle them to the order of mandamus sought. It is on record that by a letter dated 15th August 2006 headed “APPROVAL FOR ACCOMMODATION OF LAND WITHINRIVERVIEW ESTATE ISHERI OGUN STATE” Exhibit A1, the Respondents communicated approval for the 1st Appellant’s application for accommodation on land measuring 5.756 Hectares and directed him to pay the sum of Three Million, Three Hundred and Thirty-Three Thousand Naira (N3,333,000.00) for it. It also stated how the money was to be paid. The letter reads thus:
“I wish to inform you that your land which measures 5.756 Hectares found to be within Riverview Estate, Isheri has been granted approval for accommodation.
Consequently, you are required to pay sum of N3,333,000.00 only for this accommodation. The fee chargeable for the accommodation approval is stated hereunder.
i) N2,500,000.00 – Ogun State Government
ii) N833,000.00 – Bureau of Lands and Survey
This fee should be paid by obtaining two separate bank certified cheques as indicated above. Please note that government survey works of the accommodation land will be done after payment of the fee as directed above.
Thank you.”

Exhibit B is the Revenue Collectors Receipt of Ogun State dated 31st of August 2006 evidencing payment of the sum of Two Million Naira into the account of Ogun State Government.

It is not in dispute that the 1st Appellant paid only part of the requisite fees stated in Exhibit A1. Notwithstanding this, a certificate of occupancy covering the land was issued in the name of the 1st Appellant. Exhibit E is a copy of the said certificate.

The Appellants in their further and better affidavit deposed that the sum of One Million, Three Hundred and Thirty-Three Thousand Naira outstanding from the payment stated in Exhibit A1 was paid on the 21st of April 2015. It is to be noted that Exhibit A1 is dated 15th of August, 2006 and the initial sum of N2,000,000 was paid on the 31st of August, 2006.

Exhibit F is a letter dated 31st of May, 2011 titled “RE CERTIFICATE OF OCCUPANCY IN RESPECT OF PROPERTY….” Addressed to the 1st Appellant wherein he was informed that the certificate of occupancy was ready and that there was the need to pay for stamp duties and others. It reads thus.
“1. I am directed to refer to your application on the above subject matter and to inform you that your certificate of occupancy is now ready for registration.
2. It will be necessary however to stamp the certificate at the stamp duties office and return same to this office. The fees specified below should be paid into the Ogun State Government Account. You are to obtain the bank tellers from these offices please.
i) Preparation fee and Annual Rent – N
ii) Registration fee – N5,000
3. I wish to state further that the payment under item (ii) should be paid within 60 days from 14-05-2011 being the date of Execution of the Certificate of Occupancy by the Executive Government otherwise will be subject to the penalties.”

It is clearly stated in Exhibit F that the Appellant is to pay the sum of N5,000 within 60 days from 14th of May, 2011 otherwise it will be subjected to penalties. It is apparent from Exhibit F that time is of essence. The law is that time is of essence where the parties have expressly made it so, or where circumstances show that it is intended to be so. Where parties did not provide for a specific time the performance of the event must be within a reasonable time. See NWAOLISAH VS. NWABUFOH (2011) 14 NWLR (PT. 1268) 600, NIGERIAN BANK FOR COMMERCE AND INDUSTRY VS. INTEGRATED GAS NIGERIA LTD. (2005) 4 NWLR (PT. 916) 617, WARNER AND WARNER INTERNATIONAL ASSOCIATES NIGERIA LTD. VS. FEDERAL HOUSING AUTHORITY (1993) 6 NWLR (PT. 298) 148.
The time within which the Appellants may pay for the registration of the certificate of occupancy lapsed on or about the 14th of July 2011. The payment for the Registration was not made until the 21st of April 2015. See paragraphs 10 and 12 of the further and better Affidavit of the Appellants. The Appellants were definitely out of time to pay the Registration. They paid after about 1,426 days instead of within 60 days specified in the letter. It is settled law that if time is of essence in the performance of an obligation failure to perform the obligation within the given time frame constitute a breach of the terms agreed upon. See M.O. KANU, SONS & CO. LTD. VS. FIRST BANK OF NIGERIA PLC (2006) LPELR–1797 (SC) AND NWAOLISAH VS. NWABUFOH (SUPRA).

The learned trial Judge in the judgment held as follows:
“Having failed to pay registration fee within the time stipulated by Exhibit F, I hold that the 1st Applicant is in breach of the terms of Exhibit“F”.
The end result is that the certificate of occupancy executed by the Executive Governor of Ogun State was not registered as can be seen from Exhibit “E”.
I cannot fault the above finding of the learned trial Judge and it is hereby affirmed.

The learned trial Judge further relied on the provision of Section 15 and 19 of the Land Instruments Registration Law, 2006 and applied same in arriving at his decision. Learned Counsel to the Appellants however argued that the trial Judge erred when he relied on the provisions which he raised suomotu without hearing from the parties.

The issue of S. 19 of the Land Registration Law is an issue of law which the learned trial Judge could raise suomotu without hearing arguments from parties. A Court of law shall not confine itself only to authorities cited by parties. The Court is at liberty to rely on authorities cited to it by parties or suomotu make reference to any book, authority or statute which he finds relevant to the issues before it. It is to be noted that generally, counsel cites authorities favourable to their clients and it therefore behooves on the Judge as the independent umpire to consider all available authorities relevant on the issue(s) before him so as to arrive at a just and proper decision. See BENJAMIN VS. STATE (2019) 15 NWLR (PT. 1696) 541, ORUGBO VS. UNA (2002) 16 NWLR (PT. 792) 175, FAWEHINMI VS. AKILU (1987) 4 NWLR (PT. 67) 797 AT 843 AND MAGIT VS. UNIVERSITY OF AGRICULTURE MAKURDI(2005) 19 NWLR (PT. 959) 211.
In any event, a careful perusal of the affidavit evidence before the lower Court reveal that the registration of the Certificate of Occupancy was in issue between the parties. The issue was not raised suomotu by the trial Judge and even where he did, the law empowers him to so do and I so hold.

Section 15 of the Land Instrument Registration Law, Laws of Ogun State, 2006 provides as follows:
“Every State grant executed after the commencement of this law, and every instrument affecting land the subject of a State grant or whereby land is granted by a citizen to a non-citizen executed after the commencement of this Law shall, so far as it affects any land, be void unless same is registered within six months from its date (or, in the case of an instrument whereby land in granted by a native to a non-native, from the date on which it receives the Governor’s consent) if executed in Nigeria, or twelve months from its date (or, in the case of an instrument whereby land is granted by a non-native, from the date on which it receives the Governor’s consent) if executed elsewhere:
Provided that the Registrar may extend such periods whenever he shall be satisfied that registration has been delayed without default or neglect on the part of the person requiring the right or interest in the land in question.”
The provision of Section 15 of the Land Instrument Registration Law is clear. It is that where there is a State grant, the instrument evidencing such grant shall be registered within 6 months from the date of its grant. Where such instrument is not so registered, it shall become void. In the instant appeal, the 1st Appellant applied for accommodation within the Riverview Estate, Isheri, Ogun State and same was approved. It subsequently applied for a Certificate of Occupancy which was issued. It is Exhibit E.
By Exhibit F the Respondents informed the 1st Appellant of the need to register the certificate within 60 days from the date of its grant. The letter (Exhibit F) was written in compliance with the provisions of Section15 of the Land Instruments Registration Law (supra). The 1st Appellant failed or neglected to comply. It is therefore my considered view and I so hold that the learned trial Judge was right when he held asfollows:
“From the foregoing, I hold that Exhibit “E” is void and of no effect.
As a legal concept an act, a document or an instrument which is a nullity is incurably bad, and is characterized by want of force or efficacy just as parties to a null marriage are treated as though they were never married, parties to an instrument of grant which is a nullity are treated as though such an instrument never existed.
See ROMAINE VS. ROMAINE (1992) LPELR–2953 (SC).”
The Appellants have placed nothing before us to warrant our interference with the above conclusion reached by the lower Court. The Certificate of Occupancy issued in the name of the 1st Appellant which was not registered within the time frame provided by law is void. It is trite that where the illegality of a transaction is disclosed before a Court, the trial Judge must not aid the performance of the illegal transaction. See SODIPO VS. LEMMINKAINEN (1985) 2 NWLR (PT. 8) 547 AND AJAYI VS. TOTAL NIGERIA PLC (2013) 15 NWLR (PT. 1378) 423. A Court of law would not compel the release of a land instrument which was not registered within the time frame provided bylaw and which is void. The learned trial Judge was therefore right when he held that a Court cannot compel a Public Officer to perform an illegal act. I find it expedient to reproduce a letter dated 25th May, 2017 written on the letter head of the 2nd Respondent wherein the Respondent catalogued the Appellants’ non-compliance with the terms given them at various times in the course of the transaction which led to the action at the lower Court. It reads thus:
“LUD II/LCI77/91
ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE
MINISTRY OF JUSTICE,
OKE-MOSAN,
ABEOKUTA.
RE: ALLOCATION OF 5.756 HECTARES OF LAND AS PLOT 1 BLOCK 26C WITHIN REVERVIEW ESTATE ALONG LAGOS/OGUN BOUNDARY ROAD, ISHERI. IFO LOCAL GOVERNMENT AREA: REQUEST FOR THE RELEASE OF CERTIFICATE OF OCCUPANCY OF D INVESTMENT AND REALTORS COMPANY LIMITED
I write to acknowledge the receipt of your letter dated 27th April, 2017 in respect of the above subject matter, please, D INVESTMENT AND REALTORS COMPANY LIMITED was requested to pay the sum of N3,333,000.00 as allocation charges via our letters of offer 15/08/2006, 27/10/2006 & 08/11/2006 out of whichN2,000,000.00 was paid on 31/08/2006. Another letter dated 28th March, 2011 requested for the payment of N3,370,000.00 within sixty days from that date or forfeit the allocation was sent to the applicant. In spite of the outstanding balance of N1,370,000.00, the Certificate of Occupancy was executed on 14/5/2011 while the requisite outstanding balance was actually paid on 21/04/2015 (almost four years after the payment expiration date under the terms of the offer of allocation). The allocation has automatically lapsed.
The foregoing analysis led to our letter reference no LUD11/LC.177/81 of 28/04/2017 cancelling the allocation and the executed certificate of occupancy granted to the applicant.
Many thanks.
SGD
K.A. Soyoye
Director, Lands Services
For: Director General (Lands)”

In NWOSU VS. ACTION PEOPLES PARTY (2020) 16 NWLR (PT. 1749) 28 AT 60 PARAGRAPHS F-G, the Supreme Court per Augie JSC held as follows:
“ It is a general rule that equity does not aid a party at fault, and this maxim has been variously expressed as follows:
– No one is entitled to the aid of a Court of equity when that aid has become necessary through his or her own fault.
– Equity does not relieve a person of the consequences of his or her own carelessness.
– A Court of equity will not assist a person in extricating himself or herself from the circumstances that he or she has created.
– Equity will not grant relief from a self-created hardship.”

The circumstances that led to the cancellation of the Certificate of Occupancy issued in the name of the 1st Appellant were orchestrated by action and omission on the part of the Appellants. They at all times neglected to comply with the terms given them by the Respondents.

Equity cannot therefore aid the Appellants who are at fault to compel the Respondent to do that which is illegal. They are not entitled to the order of mandamus sought vide the motion on notice filed at the lower Court.

I have gone through the evidence on record and the evaluation done by the trial Judge and I am satisfied he exercised his discretion judicially and judiciously in accordance with the dictates of justice. I cannot find any reason to interfere with the evaluation of evidence done by the trial Judge. It was not perverse in any way.

The net result is that the sole issue formulated for the determination of this appeal is resolved against the Appellants and in favour of the Respondents. It follows that this appeal lacks merit and should be dismissed. It is hereby dismissed. I affirm the judgment of the Ogun State High Court in SUIT NO. M/123/2017 delivered on 10th September, 2018.
APPEAL DISMISSED.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Folasade Ayodeji Ojo, JCA. I agree that this appeal lacks merit and I also dismiss it.

The relief sought by the Appellants, in their originating motion on notice, was in the nature of an order of mandamus which is defined as “an order… to a lower Court or to an authority instructing it to perform a specific act or duty” – Encarta World English Dictionary, page 1145.
In legal parlance, mandamus is “A writ issued by a Court to compel performance of a particular act by a lower Court or a governmental officer or body, usually to correct a prior action or failure” – Black’s Law Dictionary, Deluxe Ninth Edition, pages 1046-1047.

There are two types of mandamus and they are:
(i) “alternative mandamus – A writ issued upon the first application to relief, commanding the defendant to either perform the act demanded or to appear before the Court at a specified time to show cause for not performing it”.
(ii) “peremptory mandamus – An absolute and unqualified command to the defendant to do the act in question.
It is issued, when the defendant defaults on, or fails to show sufficient cause in answer, to an alternative mandamus”.
See Black’s Law Dictionary (supra).

In this case, the Respondents were not in default of performing their duties, rather the Appellants failed, neglected or refused to perform their own obligations under the agreement between the parties for upward period of 4 (four) years, in spite of several demand letters by the respondents.

For the foregoing reasons, and the more comprehensive reasons given in the leading judgment, I also dismiss the appeal for being devoid of merit.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance, the judgment just delivered by my learned brother, FOLASADE AYODEJI OJO, JCA. My lord has analysed the facts in the appeal and I am in complete agreement with the lucid reasoning and conclusion arrived at in the judgment. It is trite law that an order of mandamus is at the discretion of the Court and where a Court below has exercised its discretion judiciously and judicially, an Appellate Court cannot interfere. See the case of AYIDA & ORS V. TOWN PLANNING AUTHORITY & ANOR (2013) LPELR-20410(SC), CENTRAL BANK OF NIGERIA V. SYSTEM APPLICATION PRODUCTS LTD. (2005) 3 NWLR (Pt. 911) 152 and ATTA V. COP, KOGI STATE (2003) LPELR-10367(CA)

In the instant case, the lower Court judiciously exercised its discretion in refusing the grant of an order of mandamus and there is no reason to interfere. Therefore, I adopt the resolution in the leading judgment as mine and abide by the orders made therein.

Appearances:

OMONIYI JOHNSON ODEYEMI, with him, PRECIOUS LAWALSON For Appellant(s)

MRS. I.N. AJIDE-BELLO Asst. Chief State Counsel, Ogun State Ministry of Justice For Respondent(s)