DONLI v. ABDULLAHI & ORS (2022)

DONLI v. ABDULLAHI & ORS

(2022)LCN/16381(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, August 22, 2022

CA/A/413/2016

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

MRS HANSINE DONLI APPELANT(S)

And

1. MALLAM MAGAJI ADAMU ABDULLAHI (His Attorney Arch. Awelemdi Anako) 2. HON. MINISTERS OF FCT 3. FEDERAL CAPITAL DEVELOPMENTS AUTHORITY 4. THE ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

RATIO:

WHETHER THE MINISTER OF THE FEDERAL CAPITAL TERRITORY POSSESSED THE POWER TO REVOKE THE ALLOCATION OF ANY PLOT OF LAND ISSUED IN THE TERRITORY

By the intendment of the Constitution of the Federal Government of Nigeria, 1999, the Federal Capital Territory is treated as one of the states in the country, see Madu vs. Madu (supra), and in that respect, the Minister of the Federal Capital Territory by dint of Section 28(5) of the Land Use Act 1978 possessed the power to revoke the allocation of any plot of land issued in the territory for reasons spelt out in the Section. See, Brossette Manufacturing (Nig) Ltd vs. M/S Ola ilemobola Ltd & Ors (2007) LPELR (SC), particularly, the Minister can revoke any allocation where grounds are shown that:
i. A breach of any of the provisions which a certificate of occupancy is by Section 10 of this act deemed to contain,
ii. A breach of any term contained in the Certificate of Occupancy or in any special contract made under Section 8 of the Act,
iii. A refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy under Subsection (3) of section 9 of this Act. HAMMA AKAWU BARKA, J.C.A.

POSITION OF LAW ON RIGHT OF OCCUPANCY OVER ANY PLOT OF IDENTIFIABLE LAND

In fact, the law is quite established in that where there is a subsisting right of occupancy over any plot of identifiable land, such right stands good against any other right, and the grant of another right of occupancy over the same piece of land will be invalid as the earlier grant subsists unless lawfully revoked. See Abdullahi vs. Bani (2014) 17 NWLR (pt. 1435) 1, and Ilona vs. Idakwo (2003) 11 NWLR (pt. 830) 53. HAMMA AKAWU BARKA, J.C.A.

POSITION OF LAW ON THE SUBSISTING RIGHT OF A PERSON

WHETHER CERTIFICATE OF OCCUPANCY CAN REVOKE THE RIGHT OF AN EXISTING HOLDER OF LAND

It flows therefrom that the right of an existing holder or occupier of land is not automatically extinguished by the mere issuance of a certificate of occupancy to another person over the same piece of land, unless properly revoked or nullified before another one can be issued in its stead. The cases of Muazu vs. Unity Bank Plc (2014) 3 NWLR (pt. 1395) 512, Adole vs. Gwar (2008) 11 NWLR (pt. 1099) and The Registered Trustees of the Apostolic Church vs. Olowoleni (1990) 6 NWLR (pt. 158) 514 are all apposite. HAMMA AKAWU BARKA, J.C.A.

WHETHER A STATUTORY RIGHT OF OCCUPANCY CAN BE ISSUED WHEN THERE IS AN EXISTING HOLDER OF LAND

The consequence of a statutory right of occupancy issued, when a deemed right exists, and has not been revoked, is a grant in futility, as a grant over a piece of land where there exists a grant is not a possibility. see, CSS Bookshops Ltd vs. RTMCRS (2006) 11NWLR (pt. 992) 530, Omiyale vs. Macaulay (2009) 7 NWLR (pt. 1141) 597 and Dantsoho vs. Mohammed (2003) 6 NWLR (pt. 817) 457. HAMMA AKAWU BARKA, J.C.A.

POSITION OF LAW ON THE TERM REVOCATION OF RIGHT OF OCCUPANCY

Thus, in Orianzi vs. AG Rivers State (2017) 6NWLR (pt. 1561) 224, the Apex Court held that: “The terms of revocation as provided under Section 28 and 44 of the Land Use Act, must be strictly complied with and strict construction of the provision made. It is not the intendment or the intention of the Land Use Act that the Governor shall use his powers to grant land arbitrarily without regard to the existing ownership or holdings granted before the operation of the Act. The act provides checks and balances which must be observed before making any grant, the conditions under which such grants can be revoked and what follows after such revocation. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance… Therefore, for a revocation of a right of occupancy to be valid, it must be made strictly in compliance with Section 28 of the Land Use Act”. HAMMA AKAWU BARKA, J.C.A.

POSITION OF LAW ON THE TERM REVOCATION OF RIGHT OF OCCUPANCY

Also, in Lateju vs. Fabayo (supra) and Jegede vs. Citicon (Nig) Ltd (2001) 4 NWLR 112, the Court held that there cannot be a valid revocation of a right of occupancy where the holder of the land has not been served with the notice of revocation duly issued under Section 28 of the Land Use Act. HAMMA AKAWU BARKA, J.C.A.

EFFECTIVE MODE OF SERVICE ACCORDING TO THE LAND USE ACT

The provisions of Section 44 of the land Use Act, makes the following provision:
“Any notice required by this act 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, or
(b) By leaving it at the usual or last known place of abode of that person; or
(c) By sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; or
(d) In the case of an incorporated company or body by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body of that office, or
(e) If it is not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of the land on whom it should be served, by addressing it to him by the description holder or occupier of the premises (naming them) to which it relates, and by delivering it to some person on the premises to whom it can be delivered, by affixing it; or copy of it to some conspicuous part of the premises”. See Sharing Cross Educational Service Ltd vs. Umaru Adamu Enterprises Ltd & Ors (2015) LPELR–24661 (CA). HAMMA AKAWU BARKA, J.C.A.

WHETHER THE COURT CAN RAISE ISSUES SUO MOTU

It is equally true that in law it is not proper for a Court of law to embark on the consideration of issues which are not within the contemplation of the parties, and raising the issues suo motu without availing the parties the opportunity of being heard. See Kayili vs. Yilbuk (supra), Jamb vs. Orji (2008) 2 NWLR (pt. 1072) 552, Okere vs. Amadi (2005) 14 NWLR (pt. 945) 545 at 559. HAMMA AKAWU BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory Abuja, sitting in Apo in Suit with No. FCT/HC/CV/416/2007 between Mallam Magaji Adamu Abdullahi, suing by his Attorney Architect Awelemdi Anako and the Honorable Minister of the Federal Capital Territory and 3 Ors delivered on the 22nd of February, 2016. In the said judgment which can be seen at pages 334-364 of the record, the lower Court in the vexed judgment dismissed the 4th respondent’s counterclaim, and entered judgment for the plaintiff further proceeding to make the following orders:
1. A Declaration that the purported revocation of the plaintiff’s Certificate of Occupancy number FCT/ABU/KN.1202 (new number AN 10837) over Plot 268 Jabi District, Abuja by the 1st defendant is null, void and of no effect whatsoever.
2. An order restoring the plaintiff’s Certificate of Occupancy number FCT/ABU/KN. 1202 (new number AN 10837) over all that parcel of land known and called Plot 268 Jabi District, Abuja.
3. An order of perpetual injunction against the defendants from disturbing the plaintiff’s use, possession and quiet enjoyment of Plot 268 Jabi District, Abuja covered by Certificate of Occupancy number FCT/ABU/KN.1202 with new number AN 10837.

In brief, the 1st respondent on the 29th of August, 2006, caused a writ of summons to issue against the Honourable Minister of the Federal Capital Territory, Abuja and 2 ors. From the amended writ of summons and the accompanying statement of claim, the plaintiff, now 1st respondent prayed for the following orders:-
1. A declaration that the purported revocation of the plaintiff’s Certificate of Occupancy number FCT/ABU/KN.1202 (new number AN 10837 over Plot 268 Jabi District Abuja by the 1st Defendant which revocation has not been communicated to the plaintiff) is null and void and of no effect whatsoever.
2. An order restoring the plaintiff’s Certificate of Occupancy number FCT/ABU/KN.1202 (new number AN 10837 over all that parcel of land known and called Plot 268 Jabi District, Abuja.)
3. An order of perpetual injunction against the Defendants from disturbing the Plaintiff’s use, possession and quiet enjoyment of Plot 268 Jabi District Abuja and covered by Certificate of Occupancy number FCT/ABU/KN.1202 with new number AN 10837.

The plaintiff’s case as can be deduced from the statement of claim is that:
The Plaintiff on or about the 27/4/03 was issued a Certificate of Occupancy with number FCT/ABU/KN.1202 by the 1st Defendant over all that undeveloped parcel of land known and called Plot number 268 Jabi District, Cadastral Zone B4, Abuja, and as at the 27/4/03, Jabi District had not been serviced with any infrastructure by the 2nd Defendant. He then averred that following the directives of the 1st Defendant that holders of Certificates of Occupancy in the Federal Capital Territory, Abuja should recertify same, duly complied with the said directive and was issued an acknowledgment by the 1st Defendant after receiving from the Plaintiff the documents enumerated infra viz:
i. Original Certificate of Occupancy number FCT/ABU/KN. 1201 dated 27/4/93.
ii. A power of Attorney executed by Mallam Magaji Adamu Abdullahi in favour of Awelemdi Anako wherein the latter was irrevocably appointed Attorney with all ownership and possessory rights over Plot number 268, Jabi District and covered by old Certificate of Occupancy number FCT/ABU/KN.1201 and dated 27th April, 1993.

The plaintiff further stated that on or about 18/10/05 he submitted building plans to the 2nd Defendant for approval as shown by a copy of his forwarding letter to the 2nd Defendant dated 18/10/05 and titled, application for building plan approval for plot 268, Jabi District covered by Certificate of occupancy NO.FCT/ABU/KN.1202.

He also averred that no query had been issued by the 1st and 2nd defendants against the building plans submitted by him (Plaintiff) and that same had passed all stages of approval leaving only bills to be drawn up by the 2nd Defendant which if issued by the 2nd Defendant and settled by the Plaintiff would have completed the building approval process.

That prior to the final process of the approval of his building plans he had in conformity with the building plans submitted to the 2nd Defendant and without any objection from the Defendants erected a wall fence round plot 268 Jabi District, Abuja and has on the Plot various building materials ranging from 10 trips of sharp sand and over 3,000 9 inches vibrated cement blocks, and that about 20/12/05, the 1st and 2nd Defendant purportedly revoked the Plaintiff’s Certificate of Occupancy even though to date, he had not been served with any notice of revocation. He continued to aver that the 2nd Defendant was tardy in giving approval to his building plans, a process that should not have taken more than two weeks and the Plaintiff would have commenced physical development of Plot 268 Jabi District Abuja before December, 2005.

He states further that all his pleas for the Plaintiff’s Certificate of Occupancy to be restored had not been heeded to by the 1st Defendant, and the 2nd Defendant without any reason for to have stopped work on the application for approval of the Plaintiff’s building plans.

The appellant upon being issued the amended writ of summons, filed a statement of defense, amended with the leave of Court and counter-claimed as follows:-
a. “A Declaration that the revocation of the 1st Respondent’s rights in the disputed land is constitutional, since the 1st respondent failed to fulfill the terms and conditions for the grant of the revoked Certificate of Occupancy.
b. A Declaration that the grant of a certificate of Occupancy to the Appellant by the 2nd Respondent is lawful, constitutional and in accordance with the interment of the land Use Act, the 1st Respondent having breached the conditions for the grant.
c. An Order of perpetual injunction restraining the 1st Respondent and/or his privies and assigns from interfering with the Appellant’s possessory rights on the land.

Positing contrariwise, it was the case of the appellant in consonance with the amended statement of defense and counter-claim, that the actions of the 2nd and 3rd Respondents, in revoking the 1st respondent’s Certificate of Occupancy was proper, regular and valid in law, and that she (the appellant) was duly offered and granted Plot 268, Jabi District, after following due process of application and acceptance of offer to the 2nd respondent for a Statutory Right of Occupancy which was granted on the 16/5/2007 after the 1st respondent’s Certificate over the Plot was revoked on the 15/5/2007.

Issues having been joined, the case proceeded to a protracted trial, at the end of which written addresses were ordered filed and adopted, setting the stage for the vexed judgment delivered on 22/2/2016 in favor of the Plaintiff, and dismissed the counter-claim.

Dissatisfied with the decision of the lower Court, appellant approached this Court vide a Notice of appeal filed on 9/3/2016 predicated on eight grounds of appeal. On 19/8/2016, the lower Court compiled and transmitted records to this Court, consequent upon which, appellant filed a brief of argument on 11/12/18, though deemed filed on 18/6/2020. The 1st respondent in opposing the appeal filed the 1st respondent’s brief on 12/4/19, consequentially deemed filed on 18/6/2020.

The 2nd, 3rd and 4th respondents on their part intimated the Court of their intention of not filing any brief in the appeal.

In the appellant’s brief settled by J.B. Daudu SAN, but argued by Jebu Mamman Saleh, the following issues were identified for the resolution of the appeal:
i. Whether or not the learned trial Judge Hon. Orji J of the High Court of the Federal Capital Territory Abuja was correct when he held that the Notice of Revocation in respect of Plot 268 Jabi Abuja dated the 5/10/2005 and dispatched by courier on 15/5/2007 to the Plaintiff did not validly or lawfully revoke the Plaintiff’s title in the said land?
ii. Whether having regard to the state of admissible evidence on the record the allocation of Plot 268 Jabi District to the Appellant by the 2nd respondent via an offer of statutory allocation dated 25/3/2006 and issued under the hand of the Honourable Minister of the Federal Capital Territory is valid in law?
iii. Whether or not the learned trial Judge Orji J made out a case for the parties different from what the parties contemplated when it considered the validity or otherwise of the re-allocation of Plot 268 Jabi District to the appellant thereby breaching the appellant’s right to fair hearing.

The 1st respondent also in the brief settled by Okechukwu Ajunwa, formulated two issues which in the estimation of learned counsel are capable of determining the appeal thus:
1. Whether the trial Court was right when it held that the purported revocation of the 1st respondent’s right of Occupancy or title over plot 268 Jabi District, Abuja by the 2nd respondent is null, void and of no effect whatsoever?
2. Whether having regard to the facts and circumstances of this case, and the evidence on record, the trial Court could be said to have made out a case for the parties different from what the parties contemplated.

Accordingly, I undertook a solemn but dispassionate study of the grounds of appeal, the record of proceedings as well as the submissions of learned counsel on the two sets of issues proffered, and my humble view is that while appellant’s issues 1 and 2 are covered by the 1st respondent’s issue 1, appellant’s issue 3, and the 1st Respondent issue 2, conveys the same meaning, capable of leading to the same destination. In the determination of this appeal therefore, I elect to be guided by those issues crafted by the appellant being the complainant, which in any case is not different from the issues distilled by the learned counsel for the 1st respondent, and would consider issues one and two simultaneously.

Issue One.
Whether or not the learned trial Judge, Hon. Orji J, of the High Court of the Federal Capital Territory Abuja was correct when he held that the Notice of Revocation in respect of Plot 268 Jabi Abuja dated 5/10/2005 and dispatched by courier on 15/5/2007 to the plaintiff did not solidly or carefully revoke the plaintiff’s title in the said land, and

Issue Two
Whether having regard to the state of admissible evidence on the record, the allocation of Plot 268 Jabi District to the appellant by the 2nd respondent via an offer of statutory allocation dated 25/3/2006 and issued under the hand of the Honourable Minister of the Federal Capital Territory is valid in law?. The two issues correlate with the 1st respondent’s issue one.

The learned counsel for the appellant opted with the leave of Court to argue issues 1 and 2 together from pages 9-17 of the brief settled for the appellant. Therein learned counsel submitted that the two issues border on whether the notice of revocation served on the 1st respondent was valid in law, and further whether the reallocation of the plot known as plot 268 Jabi district to the appellant by the 2nd–4th respondents was valid in law. He then submitted that in seeking answers to the question posed, reference has to be made to certain enumerated uncontroverted facts on record, the effect of which binds the Court, conceding that even though the Minister of the FCT possesses the power to revoke a Statutory Right of Occupancy, as circumscribed by Section 28 (5) of the Land Use Act, citing the case of Brossette Manufacturing (Nig) Ltd vs. M/S Ola Ilemobola Ltd & Ors (2007) LPELR (SC), referred to the finding of the lower Court at pages 350-351 of the record, stating that by clause 4 of exhibit J, the Minister had the right of revocation where exhibit J is breached.

On whether or not the notice of revocation was served on the 1st respondent, the learned counsel referred to the provisions of Section 26 (6), (7) and 44 of the Land Use Act, contending that the combined effect of the sections listed is that the notice of revocation must be issued by the person so authorized to issue, and that the notice is served on the holder and the date of service is the date of the mailing of the document and not the date of receipt. The cases of Adole vs. Gwar (2008) 11 NWLR (pt. 1099) 562 and CSS Bookshops Ltd vs. Registered Trustees of Moslem Community, Rivers State & Ors (2006) 26 NSCQR 481 were cited amongst others on the principle. He submitted still that the lower Court having made findings to the effect that the notice of revocation was received by the 1st respondent, there is that presumption that the notice of revocation was so received by the 1st respondent, and relied on the case of BEDC Plc vs. Esealuka (2015) 2 NWLR (pt. 1444) 415.

He continued to argue that since the power to issue statutory right of occupancy resides with the Minister of the FCT, that exercise of power of re-allocation of the plot to the appellant was valid, and relied on Madu vs. Madu (2008) LPELR–1806 (SC) per Muhammad JSC. He faulted the holding of the lower Court at page 360 of the record to the effect that appellant was allocated the plot of land on the 25th day of March, 2006 before the notice of revocation was served on the respondents, and urged the Court to reverse the said decision of the Court having held that the 1st respondent was in breach of exhibit J, by reason of his failure to develop the said plot within two years, and as a result of the breach, 2nd respondent exercised its statutory powers by revoking the right of occupancy granted to the 1st respondent in respect of plot 268 Jabi District Abuja, and further that the notice of revocation was duly served on the 1st respondent, as the notice was issued by a party who was not interested in the suit but acting in his official capacity, and lastly that the reallocation of the plot to the appellant was valid. Learned counsel premised on the above postulations urged the Court to resolve the issue in its favor.

The learned counsel for the 1st respondent responded to the two issues argued together under its issue one, to wit whether the trial Court was right when it held that the purported revocation of the 1st respondent’s right of occupancy or title over plot 268 Jabi district, Abuja by the 2nd respondents is null, void and of no effect whatsoever?

Proffering arguments on the issue, learned counsel was of the view that the trial Court was right in holding that the purported notice of revocation in respect of plot 268 Jabi District Abuja dated the 5th of October, 2005 and dispatched by courier on the 15th of May, 2007 to the 1st respondent did not validly revoke the 1st respondent’s title in the property and therefore null and void. He goes on to submit that the issue of revocation of title to land cannot be complete without complying with the provisions of Sections 28 and 44 of the Land Use Act, and emphasized the point that in revoking a valid subsisting right of occupancy, notice of the revocation shall be served in strict compliance with Sections 28 and 44 of the Land Use Act, and relied on the case of Orianzi vs. AG Rivers State (2017) 6 NWLR (pt. 1561) 224. Also alluding to the provisions of Section 28 of the Land Use Act, and most particularly Subsections (6) and (7) thereof, counsel argued that certain enumerated preconditions must be complied with before a notice of revocation can be said to have been validly issued, and relied on Olomoda vs. Mustapha & Ors (2019) LPELR–46438(SC) highlighting the main purpose for giving notice of revocation of right of occupancy. Learned counsel reviewed the case put forward by the parties before the Court of trial, alluded to the holding of the lower Court on the issue of the service of the notice of revocation, and contended that jurisprudential law points to the fact that laws that seek to deprive a person of his proprietary rights must always be construed strictly in favor of the person whose proprietary rights are being taken away, and for this proposition, learned counsel relied on the cases Bello vs. The Diocese Synod of Lagos (1973) 1 ALL NLR (pt. 1) 247, Peenok Investment Ltd vs. Hotel Presidential (1982) NSCC 477, Abioye & Ors vs. Yakubu & Ors (1991) 5 NWLR (pt. 190) 130 amongst many others. He insists that the fact that 1st respondent was only informed in the development control office that his right of occupancy over the disputed plot had been revoked, when there was no proof that such was served on him, cannot be taken as proper service, and the letter of appeal from the respondent relied upon by the appellant cannot cure the lapse. All in all, learned counsel prayed this Court to discountenance the submissions of counsel for the appellant on the issue and to uphold the judgment of the lower Court, having held that there was no valid notice of revocation served on the 1st respondent and therefore the subsequent allocation null and void.

Having carefully studied the arguments of learned counsel, my humble view is that what is being contended upon turns on whether the plot of land in contention, hitherto allocated to the 1st respondent was legally revoked, thereby enabling the 2nd and 3rd respondents to re-allocate to the appellant?

Starting from the basics, it seems clear to me that plot 268, Jabi district Abuja, prior to the present hostilities was allocated to the 1st respondent by dint of a Certificate of Occupancy with No. FCT/ABU/KN.1202, dated the 27th of April, 1993 marked as exhibit J before the lower Court. There is no disputing that fact. It seems also clear from the record that the plot of land remained undeveloped up to the time of hostilities, i.e when the respondents purported to have revoked the allocation made to the appellant. This according to the 2nd and 3rd respondents was the reason behind the revocation of the plot. This uncontested fact is supported by a careful examination of the entirety of the record, showing that the 1st respondent never contended that he developed the said plot, but was heard as stating that he re-certified the plot of land as requested by the 2nd and 3rd respondents, and was therefore surprised to learn that the allocation in respect of the said land was revoked, even though no such letter of revocation was served on him, and further to that, he got to know about the revocation letter only when he went to collect his building plan approval from the development council office. A calm appraisal of the records reveals the presence of evidence indicating that a letter of revocation over the plaintiff’s title to the plot of land was actually signed on the 5th of October, 2005, while same was said to have been served on the 1st respondent on the 15th of May, 2007. The appellant on the other hand, while adducing evidence pointed out that she was granted title to the disputed plot on the 25th of March, 2006, by way of an offer of a statutory right of occupancy, and issued a certificate to that effect on the 16th of May, 2007. These facts remain sacrosanct and undisputed for which the Court is bound to accept and to rely on same. The case of Lipede & Ors vs. Sonekan & Anor (1995) LPELR–1786 (SC) is apt on the point.

The lower Court duly convinced, that the 2nd respondent has the power of revocation under Section 28 (5) of the Land Use Act, rightly appreciated the dispute before it as being whether the revocation of the 1st respondent’s right of occupancy over the plot of land by the 2nd respondent and the subsequent re-allocation of same to the appellant by the same 2nd respondent was validly made, concluding that no such valid revocation was effected on the 1st respondent, and thereby the subsequent re-allocation to the appellant void.

Arguments have been made on the procedure for the revocation of a certificate or right of occupancy under the Land Use Act, circumscribed under Sections 28 (6) and (7) of the same Act. For ease of argument, the two sections are reproduced as follows:
28 (6) the revocation of a right of Occupancy shall be signified under the hand of a public servant duly authorized in that behalf by the Governor and notice thereof shall be given to the holder.
28 (7) the title of the holder of a right of Occupancy shall be extinguished on receipt by him of a notice given under Subsection (6) of this Section or on such later date as may be stated in the notice.
The Court rightly in my view understood the fact that even where the holder of a right of occupancy is in breach of the terms of the grant, his right over the property remains valid until properly revoked pursuant to the law prescribed under Sections 28 (6) and (7) of the Act. In fact, the law is quite established in that where there is a subsisting right of occupancy over any plot of identifiable land, such right stands good against any other right, and the grant of another right of occupancy over the same piece of land will be invalid as the earlier grant subsists unless lawfully revoked. See Abdullahi vs. Bani (2014) 17 NWLR (pt. 1435) 1, and Ilona vs. Idakwo (2003) 11 NWLR (pt. 830) 53. It flows therefrom that the right of an existing holder or occupier of land is not automatically extinguished by the mere issuance of a certificate of occupancy to another person over the same piece of land, unless properly revoked or nullified before another one can be issued in its stead. The cases of Muazu vs. Unity Bank Plc (2014) 3 NWLR (pt. 1395) 512, Adole vs. Gwar (2008) 11 NWLR (pt. 1099) and The Registered Trustees of the Apostolic Church vs. Olowoleni (1990) 6 NWLR (pt. 158) 514 are all apposite. The consequence of a statutory right of occupancy issued, when a deemed right exists, and has not been revoked, is a grant in futility, as a grant over a piece of land where there exists a grant is not a possibility. see, CSS Bookshops Ltd vs. RTMCRS (2006) 11NWLR (pt. 992) 530, Omiyale vs. Macaulay (2009) 7 NWLR (pt. 1141) 597 and Dantsoho vs. Mohammed (2003) 6 NWLR (pt. 817) 457. Mr. Ajunwa, the learned counsel for the 1st respondent is therefore right in asserting that for a valid and subsisting right of occupancy to be revoked, the notice of such revocation shall be served on the holder of the right of occupancy in strict compliance with the provisions of Section 28 and 44 of the Land Use Act, and the case of Osho vs. Foreign Finance Corporation (1991) 4 NWLR (pt. 184) 157 amply supports that legal position. Thus in Orianzi vs. AG Rivers State (2017) 6NWLR (pt. 1561) 224, the Apex Court held that: “The terms of revocation as provided under Section 28 and 44 of the Land Use Act, must be strictly complied with and strict construction of the provision made. It is not the intendment or the intention of the Land Use Act that the Governor shall use his powers to grant land arbitrarily without regard to the existing ownership or holdings granted before the operation of the Act. The act provides checks and balances which must be observed before making any grant, the conditions under which such grants can be revoked and what follows after such revocation. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance… Therefore, for a revocation of a right of occupancy to be valid, it must be made strictly in compliance with Section 28 of the Land Use Act”.
Also, in Lateju vs. Fabayo (supra) and Jegede vs. Citicon (Nig) Ltd (2001) 4 NWLR 112, the Court held that there cannot be a valid revocation of a right of occupancy where the holder of the land has not been served with the notice of revocation duly issued under Section 28 of the Land Use Act.

The lower Court faced with the question posed in the argument of Mr. Ediale for the claimant, that the notice of revocation was not served on the 1st respondent, and that there was no evidence in that regard by the appellant and the 2nd-4th respondents, and further still that there was no evidence whatsoever that the 1st respondent received the notice of revocation as envisaged under Sections 28 and 44 of the Land Use Act, evaluated the evidence proffered on the issue, and conclusively agreed with the 1st respondent that the 1st defendant thereat did not validly revoke the 1st respondent’s right of occupancy or title over the said plot known as plot 268. It is this conclusion that the learned senior counsel for the appellant, now seeks to fault, maintaining that the 1st respondent was duly served the revocation notice as required by law.

LawCare Nigeria