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.

It is obvious from the records that, the notice of revocation, exhibit N, was purportedly served on the 1st respondent through DHL, exhibit S on the 15th of May, 2007. On this the lower Court reasoned as follows:
“The summary of all that I have been saying is that on 5th of October 2005, the notice of revocation of the plaintiff’s right of occupancy or title over Plot 268, Jabi District Exhibit NJ was written and signed by the officer authorized by the 1st defendant [Oni O. A.]. The 1st defendant waited till 15/5/2007 [after the plaintiff had instituted this action] before the notice was served on him. Meanwhile, the 1st defendant re-allocated the Plot to 4th defendant on 25/3/2006 even before the notice of evocation was served on the plaintiff. The critical question is whether the service of the notice of revocation on the plaintiff on 15/5/2007 can validly extinguish or revoke his right of occupancy over the said Plot 268. It was submitted on behalf of the 1st & 2nd defendants that by Section 44 of the Land Use Act, there is no time limit under which the notice of revocation can be served.
It is pertinent to state that the Plaintiff instituted this suit to challenge the revocation of his right over the Plot. He averred in Paragraph 12 of his statement of claim that the 1st & 2nd defendants “Purportedly revoked the Plaintiff’s certificate of Occupancy and has (sic have) till date not served the Plaintiff with any notice of revocation.” The records in the case file show that the originating processes in this suit were served on 1st & 2nd defendants on 23/4/2007. Upon being served with the originating processes, the 1st & 2nd defendants realized that indeed (or truly) the notice of revocation had not been served on the plaintiff. They quickly sent the notice of revocation to DHL on 15/5/2007 for service on the plaintiff”.

One thing remains clear, it is as found by the lower Court that the revocation was allegedly served on the 1st respondent on the 15th of May, 2007. Appellant from her testimony on the 10th of November 2011, at page 303 of the record, has it as follows:
Q.. When was the offer of right of occupancy exhibit O2 accepted.
A.. I accepted it immediately I received the document.
Q.. The acceptance letter is dated 23/6/2006
A… If that is the date, it means I did not receive the offer on the date it was written.
Q.. When was your application for grant submitted
A… In April 2005.

And in the additional witness statement of the appellant, which she adopted in her evidence before the Court made under oath at pages 62–64, the appellant Mrs. Hansine N. Donli did state amongst others that:
“The 4th defendant avers that she was given an offer of statutory right of occupancy dated 25th of March, 2006 in her name with her file number No. 20035. It is further stated that a statutory right of occupancy initial bill of the rent and fees to be paid dated 29th March, 2006 was also issued to the 4th defendant who paid the sum of N3,000,000.00 on bank PHB deposit slip No. 493 dated 30th June, 2006 in favor of the Abuja geographical Information systems (AGIS)……….that the 4th defendant in her letter of the 23rd of June, 2006 acknowledged the receipt of the said offer of statutory right of occupancy.”

Mr. Ajunwa argued and rightly in my view that for a valid and subsisting right of occupancy to be revoked, a notice of such revocation must be served on the holder thereof in strict compliance with Sections 28 and 44 of the Land Use Act. It is only where the subsisting right is determined as aforestated, that the Minister’s right to reallocate can arise. I view the reasoning and conclusion by the lower Court on the issue very defendable having held that:
“I therefore reject the submission made on behalf of the 1st and 2nd defendants that the plaintiff’s title over the plot was revoked on 5.10.2005. Let me emphasize that by virtue of Section 28 (7) of the Land Use Act, the material date for the purpose of extinguishing a right of occupancy is the date the notice of revocation was served on the holder and not on the date of the notice. I also hold the considered view that the fact that PW1 was informed in the development control office that the right of occupancy (of the plaintiff) over the plot had been revoked which made him to write exhibit M is not proof that the notice of revocation was served on him or the plaintiff. Such information is not one of the ways of service of notice of revocation prescribed under Section 44 of the Land Use Act. Besides as held in Olatunji vs. Military Governor, Oyo State & Ors (supra), service personally on the holder is sine qua non of the revocation of his interest in the land in dispute and cannot be dispensed with…….the summary of all that I have been saying is that on the 5.10.2005, the notice of the revocation of the plaintiff’s Right of Occupancy or title over plot 268, Jabi district (exhibit N) was written and signed by the officer authorized by the 1st defendant (Oni O. A). The 1st defendant waited till 15.5.2007 (after the plaintiff had instituted this action) before the notice was served on him. Meanwhile, the 1st defendant had allocated the plot to the 4th defendant on 25.3.2006 even before the notice of revocation was served on the plaintiff. The critical question is whether the service of the notice of revocation on the plaintiff on 15.5.2007 can validly extinguish or revoke his right of occupancy over the said plot 268”.

The Court went further to note that:
“the records in the case file show that the originating processes in this suit were served on the 1st and 2nd respondent on the 23/4/2007 and upon being served with the originating processes, the 1st and 2nd defendants realizing that indeed (or truly) the notice of revocation had not been served on the plaintiff, quickly sent the notice of revocation to DHL on 15/5/2007 for service on the plaintiff”

Even though the appellant seriously contended on the above finding by the lower Court in ground 7 of the grounds of appeal, particular (111) thereof supported the finding, as the appellant had admitted that the 1st and 2nd defendants led evidence to show that they had issued the notice of revocation since 2005 and the proof of service of it is the DHL delivery note of 15/5/2007. Was the lower Court wrong in declaring the purported allocation to the appellant by the 2nd respondent null and void and of no effect? My Lord Agim, now JSC, in Chief G.N. Okoye vs. Mr. Nonso Dumebi (2014) LPELR–24155 (CA), held the view that it was unnecessary to revoke an allocation that was never validly made and thus void. The revocation of an act or process presupposes that the said act or process was legally effective or effectual. In other words, the Court having come to the conclusion that the notice of revocation was served on the 1st respondent as late as on 15.5.2007, and the allocation of the said plot made to the appellant made earlier in time, ie. The 25th of March, 2006, that allocation is by dint of the case just cited not having been validly made is ab initio void, ineffective and ineffectual, and the declaration to that effect by the lower Court a surplusage.

I agree with the learned counsel for the 1st respondent and the lower Court that by the intendment of Section 28(7) of the Land Use Act, the right to a holders Right of Occupancy can only be extinguished upon service him of a letter of revocation duly issued under the hand of the 2nd respondent in accordance with Section 28 and 44 thereof, which must be factual. That it is only when service of the revocation notice is effected on the holder can it be said that he was so served and never by construction. The burden rests on the party that wants the Court to hold that the holder of a right of occupancy had been served, to so prove. As at the 5th of May, 2005, when the notice of revocation was said to have been written and even on the 25th of March 2006, when the disputed plot of land was reallocated to the appellant, there was no proof that the 1st respondents right was revoked and thereby remained the lawful owner of the said land for which the 2nd respondent had no right to reallocate.
Issues 1 and 2 are there resolved against the appellant.

ISSUE THREE.
Whether or not the learned trial Judge Oriji 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.

It was submitted by the learned counsel for the appellant that the issue herein seeks to question the holding of the lower Court as to whether the notice of revocation on the 1st respondent on 15/5/2007 can validly extinguish or revoke the right of occupancy of the 1st respondent. Counsel submitted that the lower Court by so doing, embarked on a voyage of discovery, which it is not permitted to do citing Nabore Properties Ltd vs. Peace-Cover (Nig) Ltd (2015) 2 NWLR (pt. 1444) 440 at 466. Also relying on the case of Kayili vs. Yilbuk (supra) and JAMB vs. Orji (2008) 2NWLR (pt. 1072) 552 as well as Okere vs. Amadi (2005) 14NWLR (pt. 945) 545 at 559, it was seriously argued that it was not proper for the trial Court to have embarked on the consideration of issues not within the contemplation of the parties without giving the parties the opportunity to address it on the issue. He goes on to argue that 1st respondent never prayed for any relief asking the Court to declare as invalid the service of the revocation on him, as his prayer was for a declaration that the purported notice of revocation was null and void and of no effect for failure to communicate the revocation to him. He submitted that the Court not being a Father Christmas cannot go around granting what parties did not specifically ask for and urged the Court to resolve the issue in its favor.

There is justification to the argument proffered by the appellant that a Judge cannot act outside the case put forward by the parties, and cannot therefore as posited make out a case for any of the parties. See Audu vs INEC (2) (2010) 13NWLR (pt. 1212) 456, Nabore Properties Ltd vs. Peace-Cover (Nig) Ltd (2015) 2 NWLR (pt. 1444) 440 at 466.

The grouse of the appellant on the issue is that the quest by the lower Court in determining whether the service of the notice of revocation on the 1st respondent on the 15/5/2007 extinguished his right of occupancy over the plot land amounted to making a new case for the 1st respondent. It was also contended that the lower Court having found that the notice of revocation was served on the 1st respondent on 15/5/2007, had no business diving into the issue of the validity or purpose of the service of the notice. I do not agree with the learned senior counsel. This is because the issues of revocation of the 1st respondent’s right of occupancy as well as the re-allocation of the said plot to the appellant was what the lower Court had before it for resolution. The appellant’s counterclaim, in particular paragraph 2 thereof and the further frontloaded pleadings of the parties brought out the fact that the issue of allocation of the plot to the appellant was made an issue. In any case, why were the parties in Court in the first place? I see the gamut of the whole case as being the purported revocation of the 1st respondent’s land which was purported to have been reallocated to the appellant. It was therefore for the lower Court being a Court of trial to weave through the evidence documentary and oral made in support of the various pleadings, and thereby reach a justifiable conclusion to the impasse. The lower Court cried out that he had the right to infer facts from established facts, and he is right, and under such circumstance cannot be accused of making any case for a party in this case the 1st respondent. This issue is likewise determined against the appellant.

Having determined all the issues against the appellant, the appeal must fail, and it is hereby dismissed by me, and the decision of Oriji. J of the High Court of the Federal Capital Territory in suit with No. FCT/HC/CV/416/2007 delivered on the 22nd day of February, 2016 is hereby affirmed. Costs of N50,000.00 is awarded to the 1st Respondent.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft form, the judgment just delivered by my learned brother, Hamma Akawu Barka, JCA
I am in full agreement with the reasoning and the conclusion that the Appeal is lacking in merit.

The issues of allocation of Land and the revocation of land earlier allocated by the 2nd and 3rd respondents Hon Minister FCT and FCDA are no longer moot issues. These issues have been over beaten by this Court and the Supreme Court.

It must be noted that under the Land Use Act any plot of land allocated to a citizen by the 2nd and 3rd respondents is for the said citizen as long as he does not violate the issues of the said grant. Even where he does not comply with the terms, it is not automatic that he loses the Plot of land to the respondents. The respondents must strictly follow the law in revoking the land before they can have the audacity or duty to re-issue the land to another person.
In the case Orianzi v. A.G Rivers State & Ors (2017 LPELR-41737 (SC). The Supreme Court Per Galinje, JSC lucidly explained the provision of the law as follows: –
“Now the question is whether the Appellant’s right of occupancy over the property in dispute was automatically extinguished under Section 5 (2) of the Land Use Act by the purported grant of Exhibit D4 to the 3rd and 4th Respondents. By Section 1 of the Land Use Act, all land comprised in the territory of each State in the Federation are vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians. By Section 28 of the Act, it shall be lawful for the Governor to revoke any right of occupancy for overriding public interest. This right of revocation however must be exercised in accordance with the provision of the Act. The situation here concerns an abandoned property which the Government sold to the Appellant and the agreement thereof. Exhibit P3, is registered in the Land Registry. By admitting that the right of the Appellant is extinguished is clearly an admission that there was a right available to the Appellant. Two rights of occupancy cannot subsist in respect of the same property or else there will be anarchy. There is no evidence before the trial Court that the Appellant’s right was lawfully revoked. To revoke a right of occupancy for public purpose, the letter and spirit of the law must be adhered to. The term 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. See Bello v. Diocesan Synod of Lagos (1973) 3 SC 131. I therefore fully endorse the view of my Lord Belgore JSC (as he then was) in Kyari v. Ganaram (Supra), and the view expressed by Ogundare, JSC in Nigerian Engineering Works Ltd V. Denap Ltd (Supra). In Olukoya V. Ashiru (2006) ALL FWLR (Pt. 322) 147 at 1514 Paras. E-H, this Court held that an equitable owner in possession cannot be overridden by a subsequent grantee of a legal estate.

This is what my brother Ogbuagu, JSC, who read the lead judgment said:- “As rightly submitted in the Respondent’s brief at page 8, the Jalingo Local Government having lawfully granted the land in dispute to the respondent, in 1981, it was left with nothing to grant to the Appellant subsequently in 1983 during the subsistence of the grant to the respondent… so that, if there is proof that money was paid for the land coupled with an entry into possession it is sufficient, to defeat the title of a subsequent purchaser of the legal estate, if and provided that the possession, is continuously maintained… Thus, if even it is coupled with possession, it cannot be overridden by a legal estate.” See Ogbu & 4 Ors v. Ani & 4 Ors (1994) 78 SCNJ (Pt. II) 363; Sore Mekun v. Shodipo (1959) LLR 30; Orsanmi v. Idowu (1959) 4 FSC 40; Oshodi v. Balogun & Ors (1936) 4 WACA 1. Clearly, the right of occupancy available to the Appellant over the disputed property was not automatically extinguished by Section 5(2) of the Land Use Act by the purported sale and subsequent grant of a statutory right of occupancy over the same property to the 3rd and 4th Respondents.

To allow such an injustice is to allow those in authority to benefit from their wrong actions. River State Government cannot determine a contract in which it is a party and then take certain benefit arising therefrom leaving the party aggrieved without any remedy.”

Interposing this position with the position of the instant case, it will be seen that the respondents were completely off course about that revocation and the re-issue of the land in issue. The situation in the instant case, shows clearly that the revocation was not proper and it is in this wise and in line with the further details given by my learned brother in the lead judgment that I also dismiss this appeal for lack of merit.
I abide by all the consequential orders made in the lead judgment.

DANLAMI ZAMA SENCHI, J.C.A.: have had the opportunity of reading in draft before now the lead judgment of my learned brother, HAMMA AKAWU BARKA, JCA just delivered. I have seen the three issues distilled for determination by the appellant’s counsel in the appellant’s brief of argument. The lead judgment aptly considered the arguments of both counsels to the respective parties in respect of the issues and accordingly resolved them. I adopt as mine the findings made in the lead judgment in respect of the issues for determination. I however want to chip in with respect of the first issue of the appellant thus:-
“Whether or not the learned trial Judge Hon. Orji 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 5/10/2015 and dispatched by courier on the 15/052007 to the plaintiff did not validly or lawfully revoke the plaintiff’s title in the said land?”

A calm perusal of the Record of Appeal, evidence revealed that the 2nd & 3rd respondents issued a letter of revocation over the 1st respondent’s title over plot 268 Jabi District, Cadastral Zone 84. The letter of Revocation was signed on 05/10/2005 and it was purportedly served on the 1st respondent on 15/05/2007. There is also undiluted evidence on Record that the 1st respondent’s plot purportedly revoked was allocated to the appellant on 25/03/2006 vide a statutory Right Occupancy. These facts on Record were never disputed at the trial Court.

Now the power of the Governor, in this case the 2nd Respondent, Minister of the Federal Capital Territory, Abuja to revoke any statutory Right of Occupancy is not in doubt. However, before the 2nd respondent can exercise such power of revocation, the holder of such statutory Right of Occupancy must have been in breach of the conditions stipulated under S. 28 of the Land Use Act. The evidence on Record shows that the statutory Right of occupancy over the title of the 1st respondent was revoked due to contravention of the terms contained in the certificate of Occupancy. See S. 28 (5) (a) and (b) of the Land Use Act. Where however, the 2nd respondent exercises his power under Section 28 of the Act (in this case S.28 (b) of the Land Use Act) the 2nd respondent must comply with the provisions of Section 28 (6) and (7) of the Land Use Act. The provisions of Sub-sections (6) and (7) are mandatory provisions to the effect that the holder of the Right of occupancy must be served personally before his statutory Right or interest is extinguished in accordance with Section 44 (a) (b) and (c) of the Land Use Act. See the case of THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V SAMUEL DAVID EKE-SPIFF & ORS, (2009) LPELR 3152 (SC), HEZEKIAH DALA V MRS ABIGAIL AYODELE & ORS (2014) LPELR 24621 (CA), EMMANUEL ILONA V SUNDAY IDAKWO, (2003) FWLR (pt 171)1715.
Now by the facts and evidence on record in this appeal, as rightly held by the trial Court that the 2nd respondent possessed the power to revoke the 1st respondent’s statutory Right of Occupancy for contravention of the terms contained in the certificate of Occupancy as provided by Section 28 (5) of the Land Use Act. The facts and evidence also showed that the land, the subject of dispute was granted to the appellant before the service of revocation Notice on the 1st respondent in accordance with Sections 28 and 44 of the Land Use Act. In other words, at the time of the fresh grant of the subject dispute to the appellant the rights or interest of the 1st respondent had not been validly revoked by serving Notice as provided by Sections 28 and 44 of the Land Use Act. And the trial Court was absolutely right in construing those sections “fortissime contra preferentes”, i.e. strictly against the acquiring authority but sympathetically in the 1st Respondent’s favour since his interest was to be divested from him. See LSDPC V FOREIGN FINANCE CORPORATION (1987) 1 NWLR (pt 50)413, PEENOK INVESTMENT LTD V HOTEL PRESIDENTIAL LTD, (1983) 4 NCCR 122, MRS BUKOLA V MRS OSHUNDAHUNSI & ORS, (2012) LPELR 8546 (CA) AND ADMIN/EXFCUTORS V EKE-SPIFF (supra).
Thus, the consequence is that where the revocation did not comply with the provisions of the Act (as in this case), the revocation is or was a nullity and of no effect whatsoever as the 2nd respondent has nothing to grant to the appellant. The trial Court was therefore right in declaring the revocation null and void and of no effect whatsoever. The finding of the trial Court cannot be faulted as it was a finding based on facts and evidence and the law.

Having said the above, I endorse the entire findings in the lead judgment as mine and hold the view that this appeal lacks merit and it is dismissed by me as well.

Accordingly, the judgment of the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/CV/416/20C7 delivered on 22/02/2016 by ORIJI, J is hereby affirmed.

I abide by the order of cost in the lead judgment and I adopt same as mine.

Appearances:

Jebu Mamman Saleh, For Appellant(s)

Okechukwu Ajunwa, with him, Chioma Osakwe for 1st Respondent.

Kyonne Mando, for 2nd and 3rd Respondent.

T.D. Agbe, with him Ibukun Okoosi for 4th Respondent. For Respondent(s)