EMMANUEL ADEBAYO AFUWAPE v. THE GOVERNOR OF LAGOS STATE & ANOR
(2019)LCN/13465(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/L/975/2014
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
EMMANUEL ADEBAYO AFUWAPE – Appellant(s)
AND
1. THE GOVERNOR OF LAGOS STATE
2. THE HONOURABLE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, LAGOS STATE – Respondent(s)
RATIO
WHETHER OR NOT OBJECTIONS TO A GROUND OF APPEAL RELATES TO THE MATTER DECIDED IN THE JUDGMENT APPEALED AGAINST
The objection to the grounds of appeal does not and could not have related to a matter decided in the judgment appealed against. See NIGER PROGRESS LTD vs. N.E.L. CORPORATION (1989) 3 NWLR (PT 107) 68 at 82, RIVERS STATE GOVT vs. SPECIALIST KONSULT (2005) LPELR (2950) 1 at 30-31, MICHAEL vs. BANK OF THE NORTH (2015) LPELR (24690) 1 at 47-48 and ASHILONU vs. OHALE (2018) LPELR (44267) 1 at 14-16. PER OGAKWU, J.C.A.
WHETHER OR NOT A RESPONDENT CAN CHALLENGE THE COMPETENCE OF AN APPEAL BY AN ISSUE THEY HAVE FORMULATED FOR DETERMINATION IN THE APPEAL
It is trite law that the Respondents cannot challenge the competence of the appeal by an issue they have formulated for determination in the appeal. See OKELUE vs. MEDUKAM (2011) 2 NWLR (PT 1230) 176, EFCC vs. AKINGBOLA (2014) LPELR (24257) 1 at 47-49, ODUNZE vs. NWOSU (2007) 13 NWLR (PT 1050) 1 and IPC (NIGERIA) LTD vs. NNPC (2015) LPELR (24652) 1 at 15-17.
In EYO vs. JACKSON (2012) LPELR (19702) 1 at 11-12, Garba, JCA stated as follows:… I have also observed that the Respondents’ issue 1 above is not derivable from any of the grounds of the appeal, but appears and was argued in the form of a preliminary objection to the competence of the appeal. Although the principles of law in judicial practice allow a Respondent in an appeal, to raise and argue a preliminary objection in the Respondent’s brief the principles do not permit such a Respondent to merely raise it as an issue in the brief. Reacting to a similar situation in the case of EZUKWU v UKACHUKWU (2004) 7 SC (Pt. 1) 96 at 101, the Supreme Court had held that: The position of the law is that where a respondent has not filed a cross appeal, the role of the appellate Court is limited to seeing whether or not the decision of the Court below is correct. Such a respondent does not have an unrestrained or unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed. See the case ofDR. J. M. UDOM v. MICHELETTI & SONS (1982) 7 SCNJ 438 at 457; (1997) 8 NWLR (Pt. 516) 187. As stated above, the issue under consideration is not derived from the Appellant’s grounds of appeal. The issue is in the nature of a preliminary objection for determination before hearing the appeal in which issues for determination are raised. See NIGER PROGRESS LTD. v N.E.L. CORPORATION (1989) 4 SC (Pt. II) 164; (1989) 3 NWLR (Pt. 107) 68 at 82. PER OGAKWU, J.C.A.
WHETHER OR NOT IT IS THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE THERETO
It is settled law that the evaluation of evidence and ascription of probative value thereto is the primary function of the trial Court: OKOYE vs. OBIASO (2010) LPELR (2507) 1 at 15, BALOGUN vs. AGBOOLA (1974) LPELR (721) 1 at 9 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 11-12. When as in this case the trial Court has unquestionably evaluated the evidence and justifiably appraised the facts, an appellate Court will not interfere since the findings made are borne out by the accepted evidence on record and are not perverse. See ANYANWALE vs. ATANDA (1988) LPELR (671) 1 at 21, AWOYALE vs. OGUNBIYI (1986) 4 SC 98 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47. PER OGAKWU, J.C.A.
THE RULE OF INTERPRETATION OF A DOCUMENT
It is rudimentary law that where the words employed in a document are clear and unambiguous, they should be given their plain simple and ordinary grammatical meaning. Where the language employed is plain and admits of only one meaning; the task of interpretation is negligible. See UNION BANK vs. NWAOKOLO (1995) 6 NWLR (PT 400) 127, CITY ENGINEERING (NIG) LTD vs. FHA (1997) LPELR (868) 1 at 42, LEWIS vs. UBA (2016) LPELR (40661) 1 at 25, NWANGWU vs. NZEKWU, (1957) 3 FSC 36 and ORIENT BANK vs. BILANTE INTERNATIONAL LTD (1997) 8 NWLR (PT 515) 37 at 78. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant was allotted land situate at Magodo and known as Plot 14, Block 77 Magodo Residential Scheme, Lagos. The land was covered by Certificate of Occupancy dated 6th March 1991 and registered as No. 82 in Volume 1991T of the Land Registry Office, Ikeja. The Respondents, contending that the Appellant was in breach of the terms and conditions contained in the Certificate of Occupancy issued a Notice of Revocation and Order of Revocation of the right of occupancy granted by the said Certificate of Occupancy.
The Appellant could not see his way clear with the propriety of the revocation. He consequently instituted proceedings before the High Court of Lagos State in SUIT NO. ID/932/2009: EMMANUEL ADEBAYO AFUWAFE vs. THE GOVERNOR OF LAGOS STATE & ANOR. wherein he claimed the following reliefs:
(i) A declaration that the Claimants Right of Occupancy as evident in the Certificate of Occupancy dated 6th March 1991 and registered as 82/82/1991 T Lagos is still valid and subsisting.
(ii) A declaration that the Notice of Revocation of Right of
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Occupancy dated 19th day of January, 2009 and the Schedule P attached to it and the revocation order as it affects the Claimants land situate and known as Block 77 Plot 14 in Magodo Residential Scheme II in Kosofe Local Government Area of Lagos covered by Certificate of Occupancy registered as 82/82/1991 T Lagos is irregular null and void and of no effect and the contents thereof should be set aside.
(iii) A declaration that any purported allocation, sale, assignment or lease of the Claimants land by the 1st Defendant to any other person whatsoever aside from the Claimant is irregular, null and void of no effect.
(iv) An order directing the Defendants to remove the seal placed on the Claimants land forthwith.
(v) An order of perpetual injunction restraining the Defendants or any person authorized by them from taking possession of the Claimants land, Block 77 Plot 14, Magodo Residential Scheme II, Kosofe Local Government Area of Lagos State covered by Certificate of Occupancy registered ad 82/82/1991 T Lagos.
(vi) The Claimant claims against forfeiture/revocation by the defendants.
The action was contested.
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Issues were joined on the pleadings which were filed and exchanged by the parties and the matter was subjected to a full dressed hearing at which testimonial and documentary evidence was adduced by the parties. In its judgment which was delivered on 6th June 2014, the Court dismissed the Appellants claims in its entirety. The Appellant being dissatisfied with the judgment appealed against the same by Notice of Appeal filed on 26th June 2014. The chafed judgment of the lower Court is at pages 187-198 of the Records while the Notice of Appeal is at pages 199-204 of the Records.
Upon the Records of Appeal being compiled and transmitted, briefs of argument were filed and exchanged by the parties. There is the Appellants Brief filed on 23rd October 2015 but deemed as properly filed on 7th November 2016, the Respondents Brief filed on 11th September 2017, but deemed as properly filed on 18th September 2017. There is also the Appellants Reply Brief which was filed on 20th June 2018 but deemed as properly filed on 8th April 2019. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective
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submissions in the determination of the appeal.
The Appellant nominated three issues for determination, as follows:
a. Whether the learned trial Judge was right when she held that the Claimant was in breach of the fundamental terms of the Certificate of Occupancy issued to him.
Grounds 1 and 2 of the Notice of Appeal.
b. Whether the learned trial Judge was right when she held that the Notice of Revocation and Order of Revocation were valid and regularly served on the Appellant pursuant to Section 44(e) of the Land Use Act.
Ground 3 of the Notice of Appeal.
c. Whether the learned trial Judge was right when she dismissed the case of the Claimant in its entirety when the 1st Defendant did not comply with the provisions of the relevant laws in Lagos State before revoking the Right of Occupancy of the Appellant.
The Respondents crafted two issues for determination, namely:
1. Assuming without conceding that Grounds 1 and 2 of the Appellants Notice of Appeal, and issue raised therefrom by the Appellant are competent, whether the learned trial judge rightly held that the Appellant was in breach of
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fundamental terms of the Certificate of Occupancy (Grounds 1 and 2).
2. Whether the Appellant can be allowed to set up a case different from the one canvassed at the Lower Court (Grounds 3 and 4).
Let me state prefatorily that the Respondents did not file a preliminary objection. They also did not file any application challenging the competence of any of the Appellants grounds of appeal. However issue one as distilled by the Respondent, inter alia, challenges the competence of grounds 1 and 2 of the Appellants Notice of Appeal. This is not right. It is hornbook law that issues for determination must be distilled from the grounds of appeal. There is no complaint in grounds 1 and 2 of the grounds of appeal, which Respondents issue number one has been distilled from, about the competence of the said grounds. The objection to the grounds of appeal does not and could not have related to a matter decided in the judgment appealed against. See NIGER PROGRESS LTD vs. N.E.L. CORPORATION (1989) 3 NWLR (PT 107) 68 at 82, RIVERS STATE GOVT vs. SPECIALIST KONSULT (2005) LPELR (2950) 1 at 30-31, MICHAEL vs. BANK OF THE NORTH (2015) LPELR
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(24690) 1 at 47-48 and ASHILONU vs. OHALE (2018) LPELR (44267) 1 at 14-16.
I had cause in the case of RAPU vs. IKUEGBOWO (2018) LPELR (45253) 1 at 8-11 to state the legal position in the following words:
The Respondents issue number one challenges the competence of the appeal. The issue clearly does not arise from the Appellants grounds of appeal. The Respondents said issue is an objection to the hearing of the appeal. It is more properly situated as a preliminary objection than as an issue for determination which is distilled from the grounds of appeal. In TAKUM LG vs. UCB (NIG) LTD (2003) 16 NWLR (PT 846) 288 at 299 it was held that where the issue sought to be raised by the respondent in an appeal does not relate to the grounds of appeal formulated by the appellant, the respondent can raise such an issue as a preliminary objection and not as an issue for determination. The issue number one as distilled by the Respondents challenging the competence of the appeal runs counter to the intendment of an issue for determination as it seeks to abort and foreclose the hearing of the appeal in limine. It is trite law that the
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Respondents cannot challenge the competence of the appeal by an issue they have formulated for determination in the appeal. See OKELUE vs. MEDUKAM (2011) 2 NWLR (PT 1230) 176, EFCC vs. AKINGBOLA (2014) LPELR (24257) 1 at 47-49, ODUNZE vs. NWOSU (2007) 13 NWLR (PT 1050) 1 and IPC (NIGERIA) LTD vs. NNPC (2015) LPELR (24652) 1 at 15-17.
In EYO vs. JACKSON (2012) LPELR (19702) 1 at 11-12, Garba, JCA stated as follows:… I have also observed that the Respondents’ issue 1 above is not derivable from any of the grounds of the appeal, but appears and was argued in the form of a preliminary objection to the competence of the appeal. Although the principles of law in judicial practice allow a Respondent in an appeal, to raise and argue a preliminary objection in the Respondent’s brief the principles do not permit such a Respondent to merely raise it as an issue in the brief. Reacting to a similar situation in the case of EZUKWU v UKACHUKWU (2004) 7 SC (Pt. 1) 96 at 101, the Supreme Court had held that: The position of the law is that where a respondent has not filed a cross appeal, the role of the appellate Court is limited to seeing
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whether or not the decision of the Court below is correct. Such a respondent does not have an unrestrained or unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed. See the case of DR. J. M. UDOM v. MICHELETTI & SONS (1982) 7 SCNJ 438 at 457; (1997) 8 NWLR (Pt. 516) 187. As stated above, the issue under consideration is not derived from the Appellant’s grounds of appeal. The issue is in the nature of a preliminary objection for determination before hearing the appeal in which issues for determination are raised. See NIGER PROGRESS LTD. v N.E.L. CORPORATION (1989) 4 SC (Pt. II) 164; (1989) 3 NWLR (Pt. 107) 68 at 82. Learned counsel ought to have raised the issue by way of preliminary objection pursuant to Order 2 Rule 9(2) of the Supreme Court Rules. As an issue for determination, this appeal it is incompetent. In the above premises, the Respondents’ issue 1 which is in the nature of a preliminary objection is incompetent and liable to be struck out since it was not even moved before the adoption of the briefs at the hearing of the appeal. It is struck out.
I kowtow. The Respondents
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issue number 1 which challenges the competence of the appeal and is therefore in the nature of a preliminary objection is incompetent and it is hereby struck out. The said issue will play no part in the consideration of the submissions of learned counsel and determination of this appeal. See also RIVERS STATE GOVT. vs. SPECIALIST KONSULT (2005) LPELR (2950) 1 at 30-31 and COP, ADAMAWA STATE vs. SARATU (2014) LPELR (24198) 1 at 8-10.
Given the settled state of the law I will strike out the limb of the Respondents issue number one which challenges the competence of the Appellants grounds 1 and 2 of the grounds of appeal. The concomitance is that I would discountenance the submissions under the First Limb of the Respondents Brief wherein they proffered their submissions on the competence of the Appellants grounds 1 and 2. As a consequence, I would equally discountenance the aspects of the Appellants Reply Brief which are devoted to his submissions on the competence of grounds 1 and 2 of the grounds of appeal. The Appellant should not have bothered as there was no proper formal challenge or objection raised to
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those grounds. If the Respondents wanted to challenge those grounds they had a duty to file a motion challenging the said grounds so as to have a basis on which to proffer submissions on the competence vel non of the said grounds. See NWAOLISAH vs. NWABUFOH (2011) NWLR (PT 1268) 600 and OKWUSOGU vs. OKADIGBO (2017) LPELR (42751) 1 at 10-12.
The Respondents issue number two which is said to have been formulated from grounds 3 and 4 of the grounds of appeal is equally blighted by the same virus of not finding its roots in the grounds of appeal. The complaint in grounds 3 and 4 is not in any way connected with whether the Appellant is setting up a case different from what he canvassed at the lower Court. Issues for determination in an appeal are confined to and circumscribed by the grounds of appeal and any issue not related to a ground or grounds of appeal is incompetent and liable to be struck out: ETA vs. ANWAN (2010) ALL FWLR (PT 546) 570 at 577 and ABDULLAHI vs. NIGERIAN ARMY (2009) ALL FWLR (PT 500) 643 at 680. Accordingly, the Respondents issue number two is hereby struck out.
In the light of the foregoing, it is on the basis of the
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issues distilled by the Appellant, which take their roots from the grounds of appeal that I will presently consider the relevant submissions of learned counsel and resolve this appeal. Issue number one was argued separately while issue numbers two and three were argued together. That will be the approach in this judgment.
ISSUE NUMBER ONE
Whether the learned trial Judge was right when she held that the Claimant was in breach of the fundamental terms of the Certificate of Occupancy issued to him.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellant submits that the right of occupancy was revoked on grounds that he failed to pay the yearly rent and develop the land within two years as stipulated in Clause 1 (1) (a) and 1 (5) (a) of the Certificate of Occupancy. It was contended that by the literal interpretation of the Clause the yearly rent was to be paid on first day of January of each year and within two years of commencement of the right of occupancy, he was to erect and complete on the land buildings or other works valued not less than N50, 000.00. It was argued that the word or used is disjunctive meaning that he
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was required to complete the building on the land within two years or do other works on the land valued not less than N50,000.00. The cases of MUKORO vs. THE STATE (1973) 1 ALL NLR (PT 1) 296 and SAVANNAH BANK vs. S.I.O. CORPN (2001) 1 NWLR (PT 693) 194 at 211 were referred to on the disjunctive interpretation of the word or.
It was opined that the words other works were used generally and should be interpreted generally since general words are to be understood generally and general expression implies nothing certain. The Latin expressions Generale dictum generaliter est interpretandum: generalia verba sunt generaliter intelligenda and Generale nihil certi implicat as well as the case of SCHRODER vs. MAJOR (1989) 2 NWLR (PT 101) 1 at 18-19 were relied upon. It was stated that the Appellant led evidence that he had built a concrete perimeter fence, constructed a driveway and installed an iron lock up gate on the land at very substantial cost. Furthermore, that the construction of a servant quarters had commenced on the land and had reached DPC level.
It was argued that the lower Court did not consider these
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other works but restricted its findings to the first part of the Clause dealing with completion of buildings or works and consequently occasioned injustice to the Appellant. The Court was urged to hold that the Appellant was not in breach of Clause 1 (5) (a) of the Certificate of Occupancy.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondents submit that the lower Court rightly held that the Appellant was in breach of the fundamental terms of the Certificate of Occupancy. It was stated that the lower Court clearly held at page 195 of the Records that the terms and conditions in paragraph 5 of the Certificate of Occupancy required the holder of the Certificate of Occupancy to erect and complete on the land, building or other works within two years of the commencement of the right of occupancy; that such buildings or other works must be specified in detailed plans approved by the Military Governor and that such building or other works must be of a value of not less than N50,000.00.
The Respondents maintain that there is no evidence on record that the Appellant completed a building or other works of a value of not less than
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N50, 000.00 and that the same was done within two years of the commencement date of the right of occupancy. Furthermore, that there is no evidence that the other works the Appellant claimed he did were as specified in any approved detailed plan as found and held by the lower Court. The Court was urged to hold that the Appellant having failed to place any evidence showing compliance with Clause 1 (5) (a) of the Certificate of Occupancy, the lower Court was right to hold that the Appellant was in breach of the fundamental terms of the Certificate of Occupancy.
APPELLANTS REPLY ON LAW
The Appellant doubled down on his submission that the judicial interpretation of the word or is that it is disjunctive. The cases of ABIA STATE UNIVERSITY vs. ANYAIBE (1996) 3 NWLR (PT 439) 646 at 661 and OBI vs. OWOLABI (1990) 5 NWLR (PT 153) 702 at 716 were cited in support. The Appellant maintained that there is evidence of the other works done and that by the provisions of Section 124 (1) (a) and (2) of the Evidence Act, proof of a fact which is within common knowledge is not necessary as the Court shall take such knowledge into account vide
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MUMU vs. AGOR (1993) 8 NWLR (PT 313) 573 at 584. It was posited that it was common knowledge that the prices of building materials and cost of living in Nigeria has gone up astronomically that the lower Court ought to have taken judicial notice that the items used by the Appellant for the other works would cost more than N50, 000.00.
It was further contended that the Appellant led evidence that he complied with all the requirements specified in the Certificate of Occupancy and that the burden then shifted to the Respondents to prove that the Appellant did not complete the other works within two years of the commencement of the right of occupancy, which they failed to do.
RESOLUTION OF ISSUE NUMBER ONE
The evidence on record discloses that the Appellant was granted a right of occupancy with the commencement date of 6th March 1991. The said right of occupancy was revoked on 19th January 2009 for breach of the fundamental terms and conditions contained in the Certificate of Occupancy, videlicet, failure to develop the land within two years and non-payment of annual ground rents and other land charges.
In holding that the Appellant
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was in breach of the fundamental terms of the Certificate of Occupancy the lower Court held thus at page 195 of the Records:
The Certificate of Occupancy specifically provides in paragraph 5, under terms and conditions, that the holder should within two years erect and complete on the said land building or other works specified in detailed plans approved or to be approved by the Governor.
No evidence was produced of any buildings or works on the said land within the scope of approved building plans.
The contention under this issue is on the interpretation of Clause 1 (5) (a) of the Certificate of Occupancy. The said Clause reads:
(5).-(a) Within two years from the date of the commencement of this Right of Occupancy to erect and complete on the said land buildings or other works specified in detailed plains approved or to be approved by the Military Governor or other officer appointed by the Military Governor such buildings or other works to be of the value of not less than N50,000.00 (FIFTY THOUSAND NAIRA …)
From the periscope of the decision of the lower Court reproduced above, the lower Court took
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cognisance of the provision for other works in Clause 1 (5) (a) but the reasoning of the lower Court and which informed its decision is that there was no evidence produced of any buildings or works on the said land within the scope of approved building plans. Given this reasoning of the lower Court, the dialectics of whether the use of or in the stipulation is disjunctive does not arise. The thrust of the finding is that there was no proof that any building or works was done in accordance with any approved building plans.
It is rudimentary law that where the words employed in a document are clear and unambiguous, they should be given their plain simple and ordinary grammatical meaning. Where the language employed is plain and admits of only one meaning; the task of interpretation is negligible. See UNION BANK vs. NWAOKOLO (1995) 6 NWLR (PT 400) 127, CITY ENGINEERING (NIG) LTD vs. FHA (1997) LPELR (868) 1 at 42, LEWIS vs. UBA (2016) LPELR (40661) 1 at 25, NWANGWU vs. NZEKWU, (1957) 3 FSC 36 and ORIENT BANK vs. BILANTE INTERNATIONAL LTD (1997) 8 NWLR (PT 515) 37 at 78.
I have set out the text of Clause 1 (5)
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(a) of the Certificate of Occupancy. The words employed therein are simple. They are plain. They are ordinary, univocal and unambiguous. In clear terms, the stipulation requires the erection and completion of buildings or other works which shall be of a value of not less N50,000.00 within two years of the commencement of the right of occupancy; and that the buildings or other works shall be specified in detailed plans approved or to be approved by the Military Governor or other officer appointed by the Military Governor The Appellant argues that it did other works which consists of perimeter fence, driveway, iron gate and servant quarters up to DPC level. Arguendo, that may be so, but the pertinent question is whether the said other works were done as specified in detailed approved plans. The lower Court held that there was no evidence that the works were done within the scope of approved building plans. I have carefully gone through the Records of Appeal; I do not find any evidence of detailed approved plans. The Appellant in his argument has also not pointed to any. By all odds, the lower Court was right in its
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findings that the Appellant was in breach of the fundamental terms and conditions of the Certificate of Occupancy which requires him to complete buildings or other works specified in detailed approved plans within two years of the commencement of the right of occupancy. It is settled law that the evaluation of evidence and ascription of probative value thereto is the primary function of the trial Court: OKOYE vs. OBIASO (2010) LPELR (2507) 1 at 15, BALOGUN vs. AGBOOLA (1974) LPELR (721) 1 at 9 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 11-12. When as in this case the trial Court has unquestionably evaluated the evidence and justifiably appraised the facts, an appellate Court will not interfere since the findings made are borne out by the accepted evidence on record and are not perverse. See ANYANWALE vs. ATANDA (1988) LPELR (671) 1 at 21, AWOYALE vs. OGUNBIYI (1986) 4 SC 98 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47. Indubitably, this issue number one must be resolved against the Appellant. The lower Court was right when it held that the Appellant breached the fundamental terms of the Certificate of Occupancy.
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ISSUE NUMBERS TWO AND THREE
Whether the learned trial Judge was right when she held that the Notice of Revocation and Order of Revocation were valid and regularly served on the Appellant pursuant to Section 44(e) of the Land Use Act.
Whether the learned trial Judge was right when she dismissed the case of the Claimant in its entirety when the 1st Defendant did not comply with the provisions of the relevant laws in Lagos State before revoking the Right of Occupancy of the Appellant.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant concedes that he did not pay yearly rent on the first day of January of each year as stipulated in Clause 1 (1) (a) of the Certificate of Occupancy but maintains that the right of occupancy cannot be revoked without compliance with existing laws. It was submitted that the Respondents did not discharge the onus of proving that the Notice of Revocation and Revocation Order were served on the Appellant but that the lower Court made a case of service of the Notices for the Respondents under Section 44 (e) of the Land Use Act, which it should not have done vide ARUBO vs. AIYELERU (1993) 3 NWLR (PT 280) 126, IMNL vs. OGE
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(1996) 3 NWLR (PT 437) 422 at 433 and ERANVOR vs. OPOGGEN (1996) 2 NWLR (PT 432) 619 at 626.
It was further contended that the right of re-entry and forfeiture of the lease given to the 1st Respondent under the Certificate of Occupancy, for non-payment of rent is not automatic as it is a breach of covenant and the lessee may apply for relief. The case of UDE vs. NWARA (1993) 2 NWLR (PT 278) 638 at 665 was referred to. It was stated that the Appellants land situate at Magodo is a State Land by virtue of the State Lands Law and the Land Use Act; and that this being so, the provisions of Section 18 of the State Lands Law had to be complied with before the Notice of Revocation and Order of Revocation were issued. It was posited that failure to comply was fatal and the Notices ought to be set aside. The case of GOVERNOR OF OGUN STATE vs. COKER (2007) LPELR 4217 (CA) was relied upon.
The Appellant further contended that though the 1st Respondent had the power to revoke a right of occupancy on grounds of breach of any of the conditions which a certificate of occupancy is deemed to contain, the notice of revocation should comply with the
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provisions of Section 44 of the Land Use Act. It was stated that the Respondents did not prove the steps they took before they pasted the Notices as stipulated in Section 44 (e) of the Land Use Act. It was asserted that since the action of the Respondents was to deprive the Appellant of his land, they must act in strict compliance with the law. The case of NDOMA-EGBA vs. CHUKWUOGOR (2004) ALL FWLR (PT 203) 2043 at 2063 -2064 was cited in support. It was conclusively submitted that since the Notice of Revocation of the right of occupancy was irregular, the Respondents cannot revoke, forfeit the lease and take possession of the property without a proper order of the Court under the State Lands Law or Recovery of Premises Law of Lagos State. The case of OSHO vs. FOREIGN FIN CORP (1991) 4 NWLR (PT 184) 157 at 193-194 was called in aid.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondents submit that at the lower Court, the Appellant in paragraph 17 of the Statement of Claim claimed that his land was not subject to revocation because he had paid the annual ground rent and other land charges and that it was setting up a different case for the
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Appellant to now contend that the land is a State Land and so the revocation was invalid because a Court order was required for the title to be validly revoked.
It was asserted that the land was not a State Land and that Section 11 of the State Lands Law defines State Land as all public lands vested in the Governor for the benefit of the Government of Lagos State. The lands conferred on the Governor by Section 1 of the Land Use Act was said to be held for the benefit of all Nigerians as opposed to State Lands Law which is for the benefit of the Government of Lagos State.
The Respondents state that there was no need to prove the service of the Notices; the Appellant having admitted service of the Notices by pasting on his gate in paragraph 11 of the Statement of Claim. It was opined that service not being in issue, it was not necessary to prove any steps taken before resort to pasting of the Notices. The Respondents maintain that the lower Court did not make a case for them on the service by pasting under Section 44 (e) of the Land Use Act, but rather the lower Court applied the correct legal position consequent upon the submission of the Appellants
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on modes of service of notice under Section 44 of the Land Use Act; since the Court was not bound to accept the submissions of a party vide BUHARI vs. HADDY SMART NIG LTD (2009) LPELR CA/A/116M/2008.
APPELLANTS REPLY ON LAW
The Appellant submits that he claimed a relief against forfeiture/revocation as a result of which the provisions of Section 18 of the State Lands Law, Section 14 (1) of the Conveyancing and Law of Property Act, 1881 and the Registered Land Law of Lagos State became applicable. It was stated that the lower Court could have taken judicial notice of the provisions of the State Lands Law pursuant to Section 122 (2) of the Evidence Act and invite counsel to address the Court on it.
RESOLUTION OF ISSUE NUMBERS TWO AND THREE
The conspectus of the Appellants contention is that even though he was in breach of the term and condition on payment of the yearly rent, the revocation of his right of occupancy did not comply with the relevant laws. The Appellant argued that the land granted to him was State Land and that Section 18 of the State Lands Law ought to be followed before there can be a forfeiture of his
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lease for non-payment of rent. For good measure it was submitted that an order of Court was required.
The gravamen of the Appellants contention is that the land is State Land which is subject to be stipulations of the State Lands Law. It necessarily follows that if the land is not subject to the stipulations of the State Lands Law, then the need for compliance with Section 18 of the State Lands Law will not arise. Is the land State Land? We turn our attention to the State Lands Law, Cap. S11, Volume 7, Laws of Lagos State of Nigeria, 2003 which was the regnant law at all times material to this matter.
Section 2 of the State Lands Law defines State Land as follows: State land means all public lands in the Lagos State which are for the time being vested in the Governor on behalf of or on trust for the benefit of the Government of the Lagos State, and all lands heretofore held or hereafter acquired by any authority of the Lagos State for any public purpose or otherwise for such benefit, as well as lands so acquired under any enactment.
For the Appellants land to be State Land as defined, it has be
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land held for the benefit of the Government of Lagos State or land acquired for public purpose or acquired for the benefit of the Government of Lagos State under any enactment. It is stating the obvious to restate that the land subject of this action is land which was granted to the Appellant personally. It is neither for the Government of Lagos State nor is it for any public purpose. (See the Appellants Certificate of Occupancy, Exhibit C1). Without a doubt, the land is by no stretch of imagination State Land within the meaning of the State Lands Law, 2003.
With respect to the application of Section 18 of the State Lands Law, it cannot be confuted that the Section provides for commencement of an action in Court to recover premises where the rent has not been paid or where any other covenants in the lease have been breached, while preserving a relief against forfeiture. The said Section provides:
18. If the rent reserved or payable under a lease under this Law or under any Ordinance repealed by this Law is in arrear, or if there shall be any breach of the lessees covenants or of the conditions of the lease whether express or
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implied, the Principal State Land Officer may serve a notice upon the lessee specifying the rent in arrear or the covenant or condition of which a breach has been committed, and at any time after one month from the service of the notice may commence an action in the High Court or in a Magistrates Court for the recovery of the premises, and, on proof of the facts, the Court shall, subject to relief on such terms as may appear just, declare the lease forfeited, and the Principal State Land Officer may re-enter upon the premises.
It is lucent that the above provision is in respect of a lease under this Law or under any Ordinance repealed by this Law. So for the same to be applicable to the Appellant in this matter, the Appellants right of occupancy has to be one granted under the State Lands Law. The Appellants Certificate of Occupancy, Exhibit C1, clearly shows that it was issued pursuant to the Land Use Act 1978 and the Land Use Regulations, 1981. To the extent that the right to occupancy is not one given under the State Lands Law, coupled with the land not being a State Land as defined in
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Section 2 of the State Lands Law, 2003, the Appellants submissions in this regard are with deference non sequitur.
The Appellant further argued that the lower Court helped the Respondents by resorting to and applying Section 44 (e) of the Land Use Act. Nothing can be further from the truth. In his final written address at the lower Court, the Appellant made an issue of the propriety of the service of the Notices on him. The Appellant submitted as follows at pages 126 -127 of the Records:
5.2.20. The Defendants did not only fail to give the Claimant a pre-revocation notice as required, they also did not follow the procedure prescribed for service of notices under the Land Use Act.
5.2.21. The means by which the notice is to be served is provided in Section 44 of the Act and the relevant portion provides that;
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 delivering it at the usual or last known place of abode of that person or
(c) By sending it in a prepaid registered letter to that person at his usual or
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known place of abode.
5.2.22 Again the use of the word shall in Section 44 makes it mandatory for the notice to revoke a right of occupancy to be served on the holder of the right of occupancy in any of the modes provided.
5.2.23 There is no evidence that the Defendants employed any of these methods to serve any notice on the Claimant. The onus, again, is on the Defendants. From the provision of the Act, such notice shall either be served personally on the person to be served or left at their last usual place of abode or business. Neither of this was done. The address of the Claimant as contained in the Certificate of Occupancy is 3, Anifowoshe Close, Iperu Remo, Ogun State.
The address for service of Exhibit C3 as stated on it is -3, Mercy Eneli Street, Surulere, Lagos which is neither the address of the Claimant or even that of the land in question. It is abundantly clear, therefore, that the notice was not served on the Claimant.
5.2.24 In declaring the revocation done as null and void, the Supreme Court in the case already referred to, Osho VS Foreign Finance Corporation, (supra) held that the methods of
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service of notice of revocation of a right of occupancy required to be served under Section 8 of the Land Use Act as prescribed are those prescribed in Section 44 of the Act. In the instant case, there is no evidence that any revocation notice was served on the plaintiff in the manner stated in Section 44 of the Act.
5.2.25 The requirement for personal service of the notice is not mere technicality but a rule of substance as a breach of it is capable of rendering nugatory both a persons inviolable fundamental right to his property and his cherished fundamental right to fair hearing. See- Attorney General, Bendel State & Ors vs. Aideyan (1989) 4 NWLR (Pt 118) 646. No one as the Court noted, can defend the unknown. It is only by service of a true and proper notice in the manner prescribed.
In resolving the issue of the propriety of the service of the Notices raised by the Appellant, the lower Court found and held as follows at pages 197 -198 of the Records:
In the issue of alleged non service of a pre-revocation notice on the Claimant. The Court finds the submission of learned Counsel in this regard and the
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reference to the decision of the Supreme Court in Nigeria Engineering Works Ltd V Denap Ltd (2001) 18 NWLR part 746 page 126, to be misleading and a misrepresentation of the position of the Law.
Section 44 of the Land Use Act provides for services of notices under the Act. This provision contains 5 subsections. Learned Counsel to the Claimant in his address referred to only 3 out of the 5 provisions.
Section 44 of the Land Use Act provides as follows.-:
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 address to that person at his usual or last known place of abode.
(d) In the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending to in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office.
(e) If it is not practicable after
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reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served by addressing it to him by the description of holder or occupier of the premises (naming them) to which it relates, and by delivering it to some person on the premises or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.
The Court finds that that Section 44 (e) provides for service by affixing on a conspicuous part of the premises such as in instant case.
So the lower Court referred to and applied the law that provided for five modes of service as opposed to the three modes which the Appellant referred to. It is not in any way helping the Respondents or making a case for them. The Court is not a robot which is pre-programmed for certain end neither is it an automation that is meant to regurgitate and apply the three modes of service which the Appellant referred to without more. In FAWEHINMI vs. AKILU (1987) 4 NWLR (PT 67) 797 at 843, Eso, JSC stated:
A judge is certainly not a robot nor an
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automation who once he is fed data produces an automatic answer. In every action before his Court, in every step taken by a Judge, his discretion is called into play whether in interpreting the law or in deciding an action one way or another. If it is otherwise, giving effect to the rule of law would amount to dexterity in manipulating data which are fed into a machine called judex. Equally, in MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2006) ALL FWLR (PT 298) 1313 at 1345, Pats-Acholonu, JSC held:… it must be equally admitted that Judges are not robots (or zombies) who have no mind of their own … They are intrepid by their great learning and training and can distinguish in order to render justice to whom it is due. It has to be remembered that it is apothegmatic to state that the law is in the bosom of the judge. The judge is a repository of the law and he is bound to determine the effect of the law on a given set of facts, whether or not his attention had been drawn to the applicable law. See OKAFOR vs. NWAZOJIE (2015) LPELR (40690) 1 at 12-13 and MALHOTRA vs. BANK OF SINGAPORE LTD (2014) LPELR (22442) 1 at 28. It
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is therefore lame for the Appellant to argue that the lower Court helped the Respondents in their case by applying the law that is in its bosom to the facts before it. The lower Court was correct and justified in applying the law to the facts before it; when it is recalled that the Appellant pleaded in paragraphs 11 and 13 of the Statement of Claim and further adduced evidence in support that the Notices were pasted on the gate he erected on the land and that a seal was also placed on the gate. The facts as pleaded were an admission against the interest of the Appellant and it is the best evidence in favour of the Respondents: ONYENGE vs. EBERE (2004) 13 NWLR (PT 889) 39, ROCKSHELL INTERNATIONAL LTD vs. BEST QUALITY SERVICES LTD (2009) 12 NWLR (PT. 1156) 640 at 649 and COUNTY & CITY BRICKS DEVELOPMENT CO LTD vs. MKC NIG LTD (2019) LPELR (46889) 1 at 30. The question of service of Notices was therefore no longer an issue and all that remained for the lower Court to determine, given the circumstances where the service of the Notices by pasting was admitted by the Appellant as the mode in which service was effected on him; was whether it was good and
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proper service in law. The lower Court correctly applied the law when it held thus at page 198 of the Records:
The Court finds that in the instant case, the Claimant was served in accordance with the provision of the Law and therefore the revocation notice served on him was regular and valid.
There is no basis on which to interfere with the decision. The valiant efforts of the Appellants counsel to import the provisions of the State Lands Law, 2003, Conveyancing & Law of Property Act, 1881 and Registered Land Law of Lagos State, 2003 are unavailing. The right of occupancy granted to the Appellant and which was revoked was granted pursuant to the Land Use Act. The applicable law on the basis of which the legality or lawfulness of the revocation is to be ascertained is by reference to the Land Use Act. See NETWORK SECURITY LTD vs. DAHIRU (2007) LPELR (8852) 1 at 12-13.
In the light of the foregoing, it is ineluctable that these issue numbers two and three must be resolved in favour of the Respondents. The lower Court was right when it held that the Notice of Revocation and Order of Revocation were validly and properly
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served on the Appellant. The Land Use Act being the applicable legislation and its prescriptions having been complied with, it was inexorable for the lower Court to dismiss the Appellants case in its entirety.
The concatenation and conflation of the foregoing is that there is no whit, iota or scintilla of merit in this appeal. All the issues having been resolved against the Appellant, the appeal fails and it is hereby dismissed. The decision of the lower Court, Coram Judice: R. I. B. Adebiyi, Judge, is hereby affirmed. There shall be no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the lucid judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.
JAMILU YAMMAMA TUKUR J.C.A.: My learned brother UGOCHUKWU ANTHONY OGAKWU. JCA. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.
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Appearances:
Lanre Ogunlesi, Esq., SAN with him, Mrs. T. Taiwo For Appellant(s)
Ikenna Amadi, Esq. For Respondent(s)
Appearances
Lanre Ogunlesi, Esq., SAN with him, Mrs. T. Taiwo For Appellant
AND
Ikenna Amadi, Esq. For Respondent