MINISTER, F.C.T & ANOR v. SYBRON MEDICAL CENTRE LTD & ANOR (2020)

MINISTER, F.C.T & ANOR v. SYBRON MEDICAL CENTRE LTD & ANOR

(2020)LCN/14420(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, July 29, 2020

CA/A/649A/2017

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY 2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY APPELANT(S)

And

1. SYBRON MEDICAL CENTRE LIMITED 2. BICHI INVESTMENT NIGERIA LIMITED RESPONDENT(S)

RATIO

ESTABLISHING PROOF OF DELIVERY OF A DOCUMENT

The Supreme Court in the case of NLEWEDIM VS. UDUMA (1995) 6 NWLR (PT. 402) 383, 394 held that where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by:- (a) dispatch book indicating receipt; or (b) evidence of dispatch by registered post; or (c) evidence of witness, credible enough that the person was served with the document.” (emphasis mine)
In as much as I agree with the submission of the 1st Respondent’s Counsel that it is the provision of the law by virtue of Section 44(d) of the Land Use Act which prescribes for the mode of service of Notice of Revocation of Right of Occupancy on a company of which category the 1st Respondent belongs thus: “Any notice required by this Act to be served on any person shall be effectively served on him….(d) In 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 at that office.” PER IDRIS, J.C.A.

WHETHER OR NOT FACTS ADMITTED NEEDS FURTHER PROOF

It is trite that a crucial fact which is admitted needs no further proof and same would be taken as established. See the cases of AGBANELO VS. U.B.N. LTD(2000) 7 NWLR (PT. 666) 534 AT 549; EDOKPOLO & CO. LTD VS. OHENHEN (1994) 7 NWLR (PT. 358) 511 AT 519. PER IDRIS, J.C.A.

RULE OF INTERPRETATION OF STATUTES

It is trite that when words of statute are clear and unambiguous, they should be given their clear and ordinary meaning. See the case of UBN LTD VS. SAX NIG LTD. (1994) LPELR – 3390(SC) wherein the Supreme Court per Adio, JSC (P. 18, paras A – D) reiterated as follows:
“When a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning. Further, the general rule is that when the words of any instrument are free from ambiguity in themselves and when the circumstances of the case have not created any doubt or difficulty as to the proper application of the words to claimants under the instrument or the subject matter to which the instrument relates, such an instrument is always to be construed according to the strict, plain and common meaning of the words themselves.” PER IDRIS, J.C.A.

WHETHER OR NOT THE GOVERNOR OF A STATE HAS THE POWER TO REVOKE A RIGHT OF OCCUPANCY FOR A BREACH OF TERMS WHICH IS CONTAINED IN A CERTIFICATE OF OCCUPANCY

The law is settled that by Section 28 (5) (a) and (b) of the Land Use Act, 1978, the Governor of a State (or the Minister, as in the instant case), has the power to revoke a Right of Occupancy for a breach of the terms, which is deemed to be contained in a Certificate of Occupancy and a breach of any contract made under Section 8 of the Act, or for overriding public policy/interest.
In OSHO & ANOR v FOREIGN FINANCE CORPORATION & ANOR (1991) LPELR – 2801 (SC), the apex Court held inter alia: “….The words of Section 28 of the Land Use Act are clear and unambiguous as to what constitutes lawful revocation. Subsection 1 of Section 28 reads: “It shall be lawful for the Military Governor to revoke a right of occupancy for overriding public interest.” Overriding public interest has been defined in Subsection (2) (b) in the case of statutory right of occupancy to include “public purposes” within the state and in Subsection (3) (a) in the case of a customary right of occupancy to include public purpose within the state.” There is no doubt that the Governor has power to revoke a certificate or Right of Occupancy for a breach of the provision which a certificate of occupancy by Section 10 thereof is deemed to contain and also a breach of any terms contained in the certificate of occupancy or any special contract made under Section 8 of the Act. See Section 28 (5) (a) and (b) Land Use Act 1978.” PER ABOKI, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Amended Writ of Summons dated and filed on the 20th November, 2014, the 1st Respondent as Plaintiff at the trial Court instituted an action against the Appellants and the 2nd Respondent who were the Defendants at the trial Court respectively and sought for the following reliefs against the Defendants jointly and severally:
1. A DECLARATION OF THIS HONOURABLE COURT that the Notice of Revocation dated 15th day of June, 2006 issued by the 1st and 2nd Defendants in respect of the plaintiff’s right of occupancy over plot 90 in sector Centre B (B16), Jabi, Abuja within the jurisdiction of this Honourable Court, is invalid, null and void, same not having been issued and served in accordance with the Land Use Act and the Constitution of the Federal Republic of Nigeria 1999.
2. AN ORDER OF THIS HONOURABLE COURT compelling the 1st and 2nd Defendants to approve forthwith the plaintiff’s building plan for the said parcel of land submitted by the plaintiff to the Defendants for the development of the said land, all amendments having been made thereto as requested by the 1st and 2nd Defendants.

AN ORDER OF THIS HONOURABLE COURT declaring null, void and of no legal effect any transfer, re-allocation of the plaintiff’s subsisting right of occupancy over plot 90 in sector Centre B (B16), Jabi, Abuja to any person(s) whatsoever including the 3rd Defendant.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd Defendants by themselves, their servants, agents or privies from interfering with the plaintiff’s use, possession, development and occupation of the said parcel of land, or re-allocating same to any third party including the 3rd Defendant.

On the other hand, the 3rd Defendant (now the 2nd Respondent) who was joined as a party to the suit by a Motion on Notice – M/1990/07 dated the 19th of April, 2007 and filed by the 1st Respondent in this Appeal, counter claimed against the Plaintiff (1st Respondent) as follows:
a. A DECLARATION that by virtue of the offer of statutory Right of Occupancy dated 25th day of March, 2009 which was granted by the 1st Defendant to the 3rd defendant, the 3rd defendant is now the lawful grantee or holder of the statutory right of occupancy over the parcel of

land known as plot no. 90 in cadastral Zone B16 of SECTOR CENTRE B, Federal Capital Territory, Abuja having an area of approximately 9134.12 Square Metre.
b. A DECLARATION that the 3rd Defendant is the person exclusively entitled to the use and possession of the parcel of land
c. A PERPETUAL ORDER of Injunction restraining the plaintiff, her agents, servants, officers and successors-in-title from further interfering with the 3rd defendant’s use and possession of the said parcel of land.

Before going into the appeal, below is a summary of the facts involved in this Appeal.
The 1st Respondent as plaintiff at the trial Court, instituted this action claiming that in 2003, the Appellants issued to it a Right of Occupancy and fees No. FCT/ABU/MISC over a parcel of land described as Plot 90 in Sector B (B16), Jabi, Abuja, Plot HEA 1B within Sector Centre B District.

The Right of Occupancy was slated to expire in the year 2100. The said Right of Occupancy was issued by the Appellants pursuant to the 1st Respondent’s application for a plot of land for hospital development.

The 1st Respondent claimed that it paid all the

relevant fees as required by the Appellants for the Right of Occupancy Fees and Rents including the payment of One Million Eight Hundred Naira (N1,800,000) being part payment for the issuance of certificate of occupancy in respect of the said land and also applied for re-certification of the Right of Occupancy as well as for building plan approval.

The 1st Respondent also claimed that it prepared the building plan for the project on the land and submitted to the Appellants on the 3rd of May 2003. However, sometime in August 2004, after the 1st Respondent orally demanded for the approval of its building plan, the 1st Respondent was shown a letter refusing the approval of its building plan and purported to have been in a file in the office of the Appellants since June 2003.

The 1st Respondent claimed that the said refusal to approve the building plan of the 1st Respondent was on the ground that the purpose clause for the plot is commercial and that the 1st Respondent could only put up offices and shops which was clearly at variance with the purpose for which the 1st Respondent applied for the land which purpose was for building a hospital and for which

the land was granted by the Appellants upon its application for same.

In view of this, the 1st Respondent claimed it resubmitted a new comprehensive design to the Appellants as requested by the Appellants. The 1st Respondent also claimed that in 2005, when the Appellants began the process of recertification of Right of Occupancy, the 1st Respondent submitted its Right of Occupancy issued by the Appellants to AGIS recertification office, Abuja and a copy of the acknowledgement for recertification and reissuance of certificate of occupancy dated 28th February, 2005 was issued to the 1st Respondent by the Appellants in favour of the 1st Respondent.

While waiting for the approval of the new comprehensive design plan, absence of which the 1st Respondent would not be able to build on the land, the Appellants by a letter titled “NOTICE OF REVOCATION OF UNDEVELOPED PLOTS WITHIN THE FEDERAL CAPITAL TERRITORY” dated 15th June, 2006 revoked the 1st Respondent’s Right of Occupancy over the described plot of land on the ground of continued contravention of the terms of development of the Right of Occupancy.

The said Notice of Revocation

was said to commence from the 29th day of September, 2005. The 1st Respondent further claimed that the Appellants never gave it any grace period before its right of occupancy was revoked and that the Appellants did not properly serve the said Notice of Revocation terminating its right of occupancy neither was there any proof of service of the said Notice of Revocation.

Despite several appeals by the 1st respondent to the Appellants upon the service of the Notice of revocation on the 1st Respondent, the Appellants refused to reinstate the 1st Respondent with the plot but instead, on the 25th of March, 2009, reallocated the said plot in dispute to the 2nd Respondent during the pendency of this suit.

The 1st Respondent at the trial Court opened its case on the 20th April, 2015 calling one witness who testified and tendered 12 Documents admitted and marked as Exhibits PW1A – PW1M.

The 1st Respondent closed its case on the 9th March, 2016 and the matter was adjourned to 28th April, 2016 for the defence to open its case.

The Appellants opened their defence on the 31st May, 2016 and called one witness who testified and tendered one

document, admitted and marked as Exhibit DW1A which was a Certified True Copy of a Newspaper Publication dated 1st January, 2005. The Appellants closed their case on 6th October, 2016.

The 2nd Respondent opened its defence on the 7th November, 2016, calling one witness; DW2 who testified and tendered 7 documents, admitted and marked exhibits.

The 2nd Respondent then closed its case on the 7th December, 2016 and the matter was adjourned to 21st February, 2017 for adoption of final written addresses, parties then filed and adopted their respective addresses on the 8th May, 2017.

After considering the evidence led by parties, the Learned Trial Judge, Honourable Justice A.O. Otaluka delivered judgment in the Suit No.FCT/HC/CV/666/2007 on the 6th July, 2017 wherein the trial judge granted judgment in favour of the 1st Respondent.

The Appellants dissatisfied with the Judgment, filed a Notice of Appeal dated and filed on the 28th September, 2017 comprising of three grounds of appeal. Only the Appellants and the 1st Respondent as parties in the appeal before this Court filed and exchanged their respective briefs of argument.

In the Appellants brief of argument as settled by his counsel Ramalan Jibrin Abdullahi Esq., and dated 19th February, 2019 and filed 26th February, 2019, the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether the lower Court was right when it held that the revocation of the 1st Respondent’s title over Plot 90 Sector Centre B (16) Jabi Abuja was invalid, null and void for ineffective service and proper issuance (Ground 1 and 2).
2. Whether the Judgment of the lower Court was against the weight of evidence adduced (Ground 3).

On Issue One, the Appellants’ Counsel argued that none of the reasons given for declaring the revocation as invalid, null and void, is sustainable when the pleadings, the evidence adduced and the law is carefully considered.

The Appellants’ Counsel argued that the issue of non-effective service of the Notice of Revocation (Exhibit PW1K) on the 1st Respondent, the Learned Trial Judge relied wholly on the provision of Section 44(d) of the Land Use Act and having held that the Notice of Revocation (Exhibit PW1K) was actually received personally by PW1, it was erroneous for the

Trial Court to have interpreted the Provision of Section 44(d) of the Land Use Act as he did, by insisting on strict compliance with only the requirement as to delivery of the Notice of Revocation on a clerk or principal officer or the 1st Respondent and at the Registered office of the 1st Respondent.

The Appellants’ Counsel further argued that the pleading and evidence adduced by both PW1 and DW1 clearly established the fact that the Notice of Revocation was duly served personally on the Medical director of the 1st Respondent. On this Point, the Appellants Counsel cited the case of OBIKOYA & SON LTD VS. GOV. OF LAGOS STATE (1987) 1 NWLR (PT. 50) PAGE 385 AT PAGE 407 PARAS D – H and 408 PARAS A – C.

In conclusion on the argument on this point, the Appellants’ Counsel urged this Court to hold that the provisions of Section 44(d) of the Land Use Act has been satisfied.

The Appellants’ Counsel argued that on the issue of lack of service of prior notice of intention to revoke the 1st Respondent’s title over the plot for non-development, that Section 28 of the Land Use Act never intended or provided for prior

notice before revocation.

The Appellants’ Counsel further argued that the Learned Trial Judge misconceived the purport of the Supreme Court decision in NIGERIAN ENGINEERING WORKS LIMITED VS. DENAP LIMITED (2001) 18 NWLR (PT. 746) PG 720.

The Appellants’ Counsel also argued that the Appellants, despite the fact that the Land Use Act does not provide for any prior Notice of Revocation, published in a daily Newspaper the Notice of Intention to revoke titles over undeveloped plot in the Federal Capital Territory before issuing the Notice of Revocation.

The Appellants’ Counsel also argued that Section 28(5)(b) of the Land Use Act permits for revocation for breach of any of the terms of the grant. On this point, counsel cited the case of ADOLE VS. GWAR (2008) 11 NWLR (PT. 1099) PG 562 AT PG 591 PARAS C – E.

The Appellants’ Counsel also argued that the learned trial judge while conceding to the powers of the Appellants to revoke a right of occupancy for non-development of the plot held that the reason i.e. non-development of the plot was not tenable in the sense that the reason for the 1st Respondent’s delay in

developing the plot was the refusal of the Appellants to approve its building plan application. The Appellants’ Counsel further submitted that the said finding was erroneous not been supported by the pleading and the evidence adduced. On this point, counsel cited the case of JALICO LIMITED VS. OWONIBOYS (1995) 4 SCNJ P.256 and relied on Section 132 of the Evidence Act.

The Appellants’ Counsel argued that on the issue of the retroactive effect of the Notice of Revocation which the trial Court relied on, Section 28(7) of the Land Use Act clearly provides as to when the title of a holder of a Right of Occupancy shall be extinguished and that the purport of the said provision is that regardless of the date on the Notice of Revocation, the title of a holder of Right of Occupancy shall become extinguished only on the date of receipt by him of the Notice of Revocation or on a later date if a later date is stated on the Notice to be effective date of the revocation. Counsel further argued that in the same vein, the title of the 1st Respondent became extinguished on the date of the receipt of the Notice on 15th June, 2006 the retroactive date notwithstanding.

In conclusion on the argument of the Appellants’ Counsel on issue one, the Appellants’ Counsel urged this Court to hold that the lower Court was wrong and occasioned a miscarriage of justice when it invalidated the Notice of Revocation of the 1st Respondent’s title over the plot in issue.

On issue two, the Appellants’ Counsel adopted all his argument and submission under issue one as his argument on issue two and urged this Court to hold that the decision of the trial Court is against the weight of evidence adduced and further urged this Court to set aside the judgment of the Trial Court.

On the other hand, the 1st Respondent filed its brief of argument dated and filed on 21st August, 2019 settled by its Counsel, Isaac Nwachukwu Esq and raised One (1) issue for determination as follows:
Whether the Trial Court was right in holding that the Revocation of the 1st Respondent’s title over Plot 90 sector Centre B (B16) Jabi, Abuja is invalid, null and void.

The 1st Respondent’s Counsel argued that the Trial Court was very correct in holding that the Revocation of the 1st

Respondent’s title over Plot 90 sector Centre B (B16) Jabi, Abuja is invalid, null and void.

The 1st Respondent’s Counsel argued that the mode of service of the Notice of Revocation is unknown to law and in clear violation of Section 44(d) of the Land Use Act and that such notice is required by law to be served by a prescribed means on an incorporated Limited Liability Company like the 1st Respondent and there is no evidence to show that the Appellants served any notice on the 1st Respondent in the prescribed manner as stipulated under Section 44(d) of the Land Use Act.

The 1st Respondent’s Counsel also argued that the obligation as stipulated under Section 44(d) of the Land Use Act is mandatory and gives no room for discretion. On this point, counsel cited the case of FIDELITY BANK PLC VS.CHIEF ANDREW MONYE & ORS (2012) LPELR – 7819 (SC).

Going further, the 1st Respondent’s Counsel argued that the Land Use Act Especially Section 28(7) never contemplated any retroactive effect in the service of a Notice of Revocation. He also argued that the essence of giving a Notice of Revocation of Right of Occupancy is to

duly inform the holder thereof of the steps being taken to extinguish his right of occupancy. On this point, counsel cited the cases of NIGERIAN TELECOMMUNICATIONS LIMITED VS. CHIEF OGUNBIYI, NIGERIA ENGINEERING WORKS LIMITED VS. DENAP LIMITED & ANOR (2001) 18 NWLR (PT. 746) 726 PARAS B.

The 1st Respondent’s Counsel argued that the authorities already cited presupposes that the 1st Respondent was entitled to two notices. The first one informing him of the Appellants intention to revoke the subject matter plot and giving it an opportunity to remedy any breach of the terms of its grant and a second one revoking its title for refusal to remedy the alleged breaches.

The 1st Respondent’s Counsel also argued that in this instant case, the Notice of Revocation claimed a grace period granted by the minister but the Appellants never tendered any letter showing the grace period given to the 1st Respondent. Counsel further argued that the fact that the Revocation Notice talked about a grace period presupposes that the Appellants knew that the 1st Respondent was entitled to a warning notice before any subsequent revocation of the plot.

The 1st Respondent’s Counsel also argued that the argument of the Appellants Counsel that there was a publication by the Appellants on a daily Newspaper informing the 1st Respondent of its intention to revoke the 1st Respondent’s title over the alleged plot is misconceived and unfounded in law, as the Land Use Act specifically prescribed the method to be adopted in giving any notice. The 1st Respondent’s Counsel further urged this Court to hold that the publication in the newspaper cannot serve as a proper notice to an incorporated company like the 1st Respondent.

The 1st Respondent’s Counsel also argued that the reason for rejection of the 1st Respondent’s building plans is based on non-conformity with the purpose clause for which the said plot was granted. Counsel further argued that the trial Court in determining whether the said revocation was issued in compliance with the law, looked into the reason which the 1st Respondent proffered for the delay in development of the said plot.

The 1st Respondent’s Counsel further argued that in considering the justification for the said reason, Trial Court defined the meaning of

‘Commercial’ which simply means a public place where services are rendered for consideration and which obviously includes a hospital.

The 1st Respondent’s Counsel also argued that the PW1 all through his testimony maintained that he quickly re-submitted an amended building plan for approval after the Appellants rejected the 1st Respondent’s initial building plan. However, the evidence remained unchallenged when the DW1 was confronted with whether the Appellants actually received another building plan from the 1st Respondent. On this point counsel cited the case of ELEMO & ORS VS. OMOLADE & ORS (1968) 2 ANLR 17, CA.

In conclusion, the 1st Respondent’s Counsel argued and further submitted that the trial Court was right in accepting the evidence of the 1st Respondent’s witness in the absence of any other evidence to the effect that the 1st Respondent resubmitted an amended building plan after the initial one was rejected. Counsel therefore urged this Court to resolve the issue in favour of the 1st Respondent and dismiss the appeal in its entirety.

Having summarized the arguments of counsel, I think there

is One Issue for determination which I will now raise as follows:
SOLE ISSUE
Whether the lower Court was right when it held that the revocation of the 1st Respondent’s title over Plot 90 Sector Centre B(16) Jabi Abuja was invalid, null and void for ineffective service and proper issuance (Ground 1 and 2).

In addressing this Issue, I would be touching on all the points that were argued by the parties. The first point being on the argument of non-effective service of the Notice of Revocation.

The purpose of giving a Notice of Revocation of Right of Occupancy is to duly inform the holder thereof of the steps being taken to extinguish his right of occupancy. In the absence of a Notice of Revocation of Right of Occupancy, it follows that any purported revocation of the right of occupancy is ineffectual.

It would be important to examine the pleadings of the parties and their evidence before the trial Court to determine whether there was service of the said Notice of Revocation on the 1st Respondent by the Appellants and whether the 1st Respondent received the said Notice of Revocation.

In Paragraph 13 of the Amended Statement of

Claim filed by the 1st Respondent at the trial Court and contained in page 6 of the Record of Appeal, the 1st Respondent averred thus:
“…the 1st and 2nd Defendants turned around by means of a letter titled “NOTICE OF REVOCATION OF UNDEVELOPED PLOTS WITHIN THE FEDERAL CAPITAL TERRITORY” dated 15th day of June, 2006 to purport to revoke the Plaintiff’s Right of Occupancy over the said plot of land…”

The 1st Respondent also pleaded the said document which was tendered through the 1st Respondent’s witness, admitted in evidence and marked as Exhibit PW1K.

Also, in paragraph 4.11 of the 1st Respondent’s Brief of Argument, it is clear that the 1st Respondent does not deny knowledge receiving the Notice of Revocation of its Right of Occupancy by the Appellants but contests the mode of service of the said Notice of Revocation.

In paragraph 14 of the 1st Respondent’s Amended Statement of claim contained in Page 7 of the Record of Appeal, the 1st Respondent averred thus:
“The Plaintiff upon receiving the said Notice (which was not properly and duly served), wrote an appeal to the Defendants for a

reconsideration of the revocation…”

The aforementioned averment clearly shows that the 1st respondent did not only receive the said Notice of Revocation, it also started acting on the information therein to appeal to the Appellants for a reconsideration of the revocation.

It is also worthy of note to consider the evidence of PW1 at page 274 – 275 of the Record of Appeal wherein he stated during cross-examination as follows:
“…What date did you receive the notice of revocation?
PW1: I was not served any notice until I heard of it and I went to Mr. Mainasara and he now gave me a copy of the letter. I heard about the revocation of my plot in the premises of Development control. It was news among the people talking.
…What day did you hear this?
PW1: That was around 15th June, 2006, and that was the day I received a copy of Exh PW1K.”

It is very clear from the afore-stated response of the PW1 that he received the Notice of Revocation of the 1st Respondent’s Right of Occupancy from the Appellants.

The Supreme Court in the case of NLEWEDIM VS. UDUMA (1995) 6 NWLR (PT. 402) 383, 394 held that

where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by:- (a) dispatch book indicating receipt; or (b) evidence of dispatch by registered post; or (c) evidence of witness, credible enough that the person was served with the document.” (emphasis mine)
In as much as I agree with the submission of the 1st Respondent’s Counsel that it is the provision of the law by virtue of Section 44(d) of the Land Use Act which prescribes for the mode of service of Notice of Revocation of Right of Occupancy on a company of which category the 1st Respondent belongs thus: “Any notice required by this Act to be served on any person shall be effectively served on him….(d) In 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 at that office.”
It is also important to state as I have always advocated that the application of our laws cannot continue to thrive on

technicalities. The hay days of technicalities are gone forever. The Court is now more interested in doing substantial justice than relying on technicalities which can only lead to injustice.
The judicial process malfunctions and is discredited when it is bogged down by technicality and is manipulated to go from technicality to technicality and thrives on technicality. That is why at all times, the tendency towards technicality should be eschewed and the determination to do substantial Justice should remain the preferred option and hallmark of the judicial system.
In this case, the resultant effect of the 1st Respondent’s Contention that the Notice of Revocation of its grant of Right of Occupancy over the disputed land was not served in the actual sense of it receiving the said notice, if followed to its logical conclusion, would amount to a technical justice or a knock out, rather than the modern trend in the Courts of ensuring that substantial justice is done to all comers to the Courts.
The 1st Respondent has admitted in both its pleadings, evidence and brief of argument before this Court that it received the said Notice of Revocation

from the Appellants.
It is trite that a crucial fact which is admitted needs no further proof and same would be taken as established. See the cases of AGBANELO VS. U.B.N. LTD(2000) 7 NWLR (PT. 666) 534 AT 549; EDOKPOLO & CO. LTD VS. OHENHEN (1994) 7 NWLR (PT. 358) 511 AT 519.
It would therefore amount to injustice if this Court should find in favour of the 1st Respondent that the Notice of Revocation was not duly and properly served and received as contended by learned counsel for the 1st Respondent.
The 1st Respondent received the said Notice of Revocation and went ahead to write two letters dated 16th of June, 2006 and 18th September, 2006 marked as Exhibits PW1F and Exhibits PW1G appealing to the 2nd Respondent for reconsideration against the Revocation of the disputed plot which fact amounts to an acknowledgment of the receipt of the said Notice of Revocation from the 2nd Respondent.
From my findings, it is clear and I would say that the fact that the 1st respondent actually received the Notice of Revocation from the Appellants is not in doubt as from the evidence on record. It is crystal clear that the 1st Respondent actually

received the Notice of Revocation from the Appellants which is the main reason why it instituted the action in the first place.
I am therefore, of the strong view that the 1st Respondent was served the said Notice of Revocation and it was received by it. Therefore, the learned trial Judge was wrong when it held in page 25 of its judgment which is at page 329 of the Record of Appeal that there is no evidence before the Court that Exhibit PW1K (Which was also tendered through the 1st Respondent’s witness and admitted in evidence) or any Revocation Notice was served on the 1st Respondent in the manner stated in Section 44(d) of the Land Use Act. I hereby resolved this point in favour of the Appellants.

Now, on the Issue of lack of service of prior Notice of Intention to Revoke, the Appellants Counsel in paragraph 4.11 of the Appellants Brief of Argument has argued that the Appellants before the issuance of the Notice of Revocation to the 1st Respondent, published in a daily Newspaper the Notice of intention to revoke titles over undeveloped plots and it is the contention of the 1st Respondent’s Counsel on the other hand that there was no such grace period.

Before I proceed, it is important for me to make some things clear. Firstly, the Appellants referred to a grace period which was granted to the 1st Respondent in its Notice of Revocation, Exhibit PW1K and Secondly, they did not even refer to how the said grace period was given in the said Notice of Revocation but assuming now that the said grace period was the one made in the Newspaper publication, Exhibit DW1A does that qualify as a recognized mode for Notice as in the instant case? And did the said notice in the said Newspaper specifically refer to the 1st Respondent? These questions would be resolve accordingly.

It would be helpful to read both Sections 28 and 44 of the Land Use Act together which would disclose that publication in Gazette and local newspapers are not mode or manner of service contemplated under the Land Use Act. The omission of publication in the gazette or newspaper is to further emphasize to the acquiring authorities, that the legislature has in mind personal service only as it left the acquiring authority with no option. See THE CASE OF MILITARY GOVERNOR OF OYO STATE VS. OLATUNJI (1995) 5 NWLR (PT. 397).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On the provisions of Section 44 of the Land Use Act, for a notice to be valid, it has to be served in accordance with the provisions of the Act. The combined effect is that failure to comply with the procedure will invalidate the process of revocation of a Right of Occupancy and a subsequent certificate of occupancy issued on the same property will be invalid.
In C.S.S. BOOKSHOP LIMITED VS. THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE & ORS (2006) 11 NWLR (PT. 992) 530, it was held that publication in a gazette was not one of the methods of notification provided under the Land Use Act and therefore such notification is invalid.
The decision of the Court is worthy of reproduction as follows:
“From the above, it is clear that the notice of revocation published in the said rivers state Government Notice No. 235 dated 27th April, 1985 and published in Volume 17, No. 27 of the official Gazette was not a valid mode of service in accordance with the Land Use Act. This is because the mode fell short of the requirement of the Act. There was no personal service or in this case which is a registered company, there was no service

on the secretary or clerk of the company as provided for. The mode of service is therefore null and void and of no effect.”
Also, revocation must comply strictly with the provisions of the Land Use Act. Any non-compliance will result in the revocation being a nullity. See the case of NIGERIAN TELECOMMUNICATIONS LIMITED VS. CHIEF OGUNBIYI (1992) 11 NWLR (PT. 992) 530 SC.
Even if for the avoidance of technical justice, I would be tempted to say that the publication in the Newspaper by the Appellants should suffice, the said publication was not even addressed to the 1st Respondent neither is it certain that the contents are with respect to the plot, subject matter of this Appeal.
I entirely agree with the finding of the trial Court to the effect that the 1st Respondent was not given any period of grace before its right of occupancy over the disputed land was revoked by the Appellants.
It is my very strong and unshaken view that the Appellants ought to have given the said Notice of intention/grace period to revoke the plot personally to the 1st Respondent since notice to the whole world or to allottees via the Newspaper publication is

not contemplated by the Land Use Act as the 1st Respondent is entitled personally to the said grace period referred to by the Appellants in the Revocation Notice before the Revocation of its Right of Occupancy which would have given it an opportunity to right any wrong.
The effect of the failure of the Appellants to serve the said notice of grace period on the 1st Respondent as required by the Land Use Act prior to the revocation of the Right of Occupancy means the said Notice/grace period was not communicated in compliance with the provisions of the Land Use Act. This point is thus resolved in favour of the 1st Respondent.

On the point argued by the Appellants on the finding of the learned Trial Judge, that the reason given by the Appellants for the revocation of the plot i.e. non-development of the Plot within the terms of the grant was not tenable as the reason for the 1st Respondent’s delay in developing the plot was the refusal of the Appellants to approve its building plan application, the Appellants has argued further that the said finding of the Court was erroneous not been supported by the pleadings and evidence adduced.

In addressing this point, it would be important again to look at both the pleadings of parties and the evidence adduced.

In Paragraph 10 of the Amended Statement of claim contained in page 6 of the Record of Appeal, the 1st Respondent stated that it submitted new Comprehensive designs to the Appellants as requested after they rejected the initial building plan submitted by the 1st Respondent thus:
“Nevertheless, after weeks of consultations and meetings, the 1st and 2nd Defendants asked the plaintiff to submit a comprehensive plan for 60% development of the plot upon which approval would be granted. The Plaintiff promptly re-submitted new comprehensive designs to the 1st and 2nd Defendants’ as requested. The 2nd defendants’ officers of the Development control unit began work on the plans and said they needed time to effect some adjustments.” (Emphasis Mine)

The Appellants on the other hand denied in their statement of defence at Paragraph 12 contained in page 82 of the Record of Appeal of its Statement of defence thus:
“…the Plaintiff never re-submitted a proper and recommended plan for reconsideration by the

1st and 2nd Defendants Development Control office.”

These statements when examined, shows that the Appellants did not deny the fact that they requested the 1st Respondent to resubmit a building plan for reconsideration but the issue here is that the 1st Respondent never resubmitted another building plan for their recommendation.

During the Cross-examination of the Appellants witness at page 281 of the Record of Appeal, the said witness did not dispute the fact that after the initial building plan of the 1st Respondent was rejected, the 1st Respondent was advised by the Appellants to redesign the building plan but he would not know if the 1st Respondent re-designed the building plan and submitted to the Appellants thus:
“…By the letter, the Plaintiff was advised to redesign the building Plan to now build offices or shops, or both instead of a hospital.
DW1:
I believe so.
…I put it to you that the Plaintiff took the advice and redesigned the plan and submitted to FCDA
DW1:
I would not know because it is a different department that handles building plan. (Emphasis Mine).”

Even though the 1st Respondent in his pleadings stated that it promptly re-submitted new comprehensive designs to the Appellants as requested, and maintained the same position during cross-examination of the PW1 by both the Appellants and the 2nd Respondent, there is no document before the Court to show that the said new-redesigned building plan was submitted to the Appellants.

It is also important to reproduce the evidence of the PW1 in pages 274 and 276 of the Record of Appeal.

On page 274 of the Record of Appeal, the PW1 during cross-examination was asked “when your building plan was rejected you submitted a new one” to which he answered “Yes I did”. While on page 276 of the Record of Appeal, when he was asked “do you have any document acknowledging the receipt of these fresh designs?” he answered “I do not have” (Emphasis Mine)

I am of the very firm view that pleadings not supported by evidence goes to no issue. The Supreme Court in the case of MOHAMMED VS. KLARGESTER NIGERIA LTD (2002) LPELR – 1897 (P. 23, paras. B – C)(SC) per. IGUH JSC reiterated thus:
“Facts pleaded but not supported by

evidence go to no issue and must similarly be discountenanced.”

It is also trite that he who asserts must prove. Section 131 of the Evidence Act, 2011 also provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Because of the nature of the instant assertion that it submitted a new re-designed building plan, the 1st Respondent is obliged to prove its assertion by good and substantial evidence.

From the afore-mentioned therefore, I do not agree with the Learned Trial Judge in his judgment at page 334 of the Record of Appeal wherein it accepted the evidence of the 1st Respondent that it submitted an amended version of the building plan for the Appellants approval as the 1st Respondent did not only fail to provide evidence in support of the fact that it actually submitted the new re-designed building plan, it also failed vehemently to discharge the evidential burden placed on it. I would like to say that the Court is not a magician to conjure in the air and provide evidence which the 1st Respondent did not himself provide.

This point is thus resolved in favour of the Appellants.

On the point argued by the Appellants as regards the retroactive effect of the Notice of Revocation which the Trial Court relied on in invalidating the said Notice of Revocation, the Appellants Counsel argued that Section 28(7) of the Land Use Act clearly provides as to when the Right of Occupancy shall be extinguished and that regardless of the date on the Notice of Revocation, the title of the holder shall be extinguished only on the date of receipt by him of the Notice of Revocation or on a later date if a later date is stated on the notice of revocation to be the effective date of the revocation.

Let me examine the argument of the 1st Respondent’s Counsel on this point. The 1st Respondent’s Counsel has argued in paragraph 4.12 of the 1st Respondent’s brief of Argument that on the face of the Notice of Revocation, it was clearly stated to have retroactive effect from 29th day of September, 2005 while it was received and dated the 15th day of June, 2006, 8 months before it was issued.

This further draws my attention to examine Exhibit PW1K which is the said Notice of

Revocation. Looking clearly at the document, it is dated 15th June, 2006 and the second paragraph reads thus:
“… Please note also that the revocation took effect from the 29th September, 2005.”

From the wordings above, it is clear that the Revocation of the grant of certificate of occupancy had even taken place before the date it was issued by the Appellants and received by the 1st Respondent.
I agree with the 1st Respondent’s Counsel that the Land Use Act never contemplated such retroactive effect.
A curious look at Section 28(7) of the Land Use Act which provides inter alia:
“the title holder of a right of occupancy shall extinguish on the receipt by him of a Notice given under Section (6) of this section or on such later date as may be stated on the Notice.”
The wordings of the Land Use Act as reproduced above do not contemplate a date that has passed but instead, a date upon receipt of the said Notice of Revocation or on a future date.
It is trite that when words of statute are clear and unambiguous, they should be given their clear and ordinary meaning. See the case of UBN LTD VS. SAX NIG LTD.

(1994) LPELR – 3390(SC) wherein the Supreme Court per Adio, JSC (P. 18, paras A – D) reiterated as follows:
“When a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning. Further, the general rule is that when the words of any instrument are free from ambiguity in themselves and when the circumstances of the case have not created any doubt or difficulty as to the proper application of the words to claimants under the instrument or the subject matter to which the instrument relates, such an instrument is always to be construed according to the strict, plain and common meaning of the words themselves.”
It is therefore my considered view and I agree with the Judgment of the learned trial judge in page 330 of the Record of Appeal that the Land Use Act did not contemplate retroactive effect of a Notice of Revocation of a grant of Right of Occupancy. Therefore, the said Notice of Revocation is not in line with the requirement as stipulated in Section 28(7) of the Land Use Act. The issue is thus resolved in favour of the 1st Respondent.

In the final result, the

Appeal is allowed in part in respect of the issues resolved in favour of the Appellants. The 1st Respondent’s reliefs 1, 3 and 4 contained in the Amended Statement of Claim before the trial Court succeed. I accordingly grant them as follows:
1. It is declared that the Notice of Revocation dated 15th day of June, 2006 and back dated to 29th September, 2005 issued by the Appellants in respect of the 1st Respondent’s right of Occupancy over plot 90 in sector centre B (B16), Jabi, Abuja within the jurisdiction of this Honourable Court, is invalid, null and void, same not having been issued and served in accordance with the Land Use Act, 1978.
2. The transfer or reallocation of the 1st Respondent’s subsisting right of occupancy over plot 90 in sector Centre B(B16), Jabi, Abuja to the 2nd Respondent or any person(s), is declared null, void and of no legal effect.
3. The Appellants and the 2nd Respondent are by order of injunction restrained by themselves, their agents or privies from interfering with the 1st Respondent use, possession, development and occupation of the said parcel of land, or re-allocating same to a third party

EXCEPT in accordance with the due process of law.

I also uphold the cost of N50,000.00 awarded by the trial Court in respect of the Counter claim against the 2nd Respondent in favour of the 1st Respondent. I make no further orders as to cost.

ABDU ABOKI, J.C.A.: I have read before now, a draft of the lead judgment just delivered by my Learned Brother MOHAMMED BABA IDRIS, JCA. I agree that the appeal is partly meritorious and should be allowed in part.

My Learned Brother has dealt exhaustively with all the issues raised in this appeal and I adopt his judgment as mine. However, and just for the purpose of emphasis, I will put in one or two words of mine on the important of proper service of a Notice of Revocation.

(1991) LPELR – 2801 (SC), the apex Court held inter alia: “….The words of Section 28 of the Land Use Act are clear and unambiguous as to what constitutes lawful revocation. Subsection 1 of Section 28 reads: “It shall be lawful for the Military Governor to revoke a right of occupancy for overriding public interest.” Overriding public interest has been defined in Subsection (2) (b) in the case of statutory right of occupancy to include “public purposes” within the state and in Subsection (3) (a) in the case of a customary right of occupancy to include public purpose within the state.” There is no doubt that the Governor has power to revoke a certificate or Right of Occupancy for a breach of the provision which a certificate of occupancy by Section 10 thereof is deemed to contain and also a breach of any terms contained in the certificate of occupancy or any special contract made under Section 8 of the Act. See Section 28 (5) (a) and (b) Land Use Act 1978.”
It is also the law that the reason for such revocation must be stated in the Revocation Notice and the Notice of Intention to revoke a Right of Occupancy must be personally served on

the holder. Failure to serve the Notice of Intention to revoke on a holder of a Right of Occupancy renders any acquisition pursuant to such revocation, a nullity.
In the case of NIGERIA ENGINERRING WORKS LTD v. DENAP LTD & ANOR (2001) LPELR 2002 (SC), the Supreme Court, in considering the failure of the Rivers State Government to issue and serve a Notice of intention to revoke the Right of Occupancy on the 1st Respondent, held as follows:
“The powers of the Governor to revoke any right of occupancy must be exercised in the overriding interest of the public and more importantly the holder of the right of occupancy being revoked must be notified in advance of the revocation. The notice to the holder must state the reason or reasons for the revocation and this will give the holder the opportunity to make any representation he or she wishes to make. Where the notice was not given or notice given was inadequate or not given in compliance with the provisions of the Act, the act of the exercise of revocation under Section 28 of the Act will be null and void. See Osho v. Foreign Finance Corporation (supra), where Obaseki JSC in considering the validity

of the exercise of revocation of right of occupancy by a Military Governor under Section 28 of the Land Use Act had this to say on page 187 of the report: The purpose for which the power of revocation of a right of occupancy was conferred on the Military Governor of a State has been clearly set out in the Land Use Act. Any revocation for purposes outside the ones prescribed even though ostensive/y for purposes prescribed by the Land Use Act is against the policy and intention of the Land Use Act and can be declared invalid and null and void by a competent Court of law. The Court of Appeal having found on the evidence that the Military Governor revokes the plaintiff’s right of occupancy not in the manner and for the purposes prescribed by the Land Use Act was perfectly justified to have declared the revocation invalid, and null and void.” This fully applies to the situation in this case and I adopt it accordingly. Where proper and adequate notice was given to the holder as required by the Act, his right of occupancy shall be extinguished on receipt of such notice. See Section 28 (6) and (7) of the Land Use Act. By the provisions of Section 28(6) and (7) of the Land Use Act,

notice must be given to the holder before the revocation of his right of occupancy and the Service of the notice must be in accordance with the provisions of Section 44 of the said Act.”
It is apparent, from the wording of Section 44 of the Land Use Act that for a Notice of Revocation to be valid, it has to be served in accordance with the provisions of the Act. The combined effect of Sections 28 and 44 of the Land Use Act is that failure to comply with the procedure, will invalidate the process of revocation of a Right of Occupancy, as in the instant appeal, and a subsequent Certificate of Occupancy issued on the same property will be invalid.

It is for this reason and the more detailed reasons given by my Learned Brother MOHAMMED BABA IDRIS, JCA that I also find this appeal to be partly meritorious and it is hereby allowed in part.
I also abide by the consequential order contained in the lead judgment.

STEPHEN JONAH ADAH, J.C.A.: I read in draft the Judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

I am in agreement with the reasoning and the conclusion that this appeal be allowed in part. I too,

do allow this appeal in part and I abide by the consequential orders as made in the lead judgment.

Appearances:

IVOKE ESQ. For Appellant(s)

NWANCHUKWU ESQ. – for 1st Respondent For Respondent(s)