MRS. BAMISO MAYOWA BUKOLA V. MRS. V. A. OSHUNDAHUNSI & ORS
(2012)LCN/5378(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of May, 2012
CA/IL/35/2011
RATIO
APPEAL: WHETHER APPEAL JUDGES CAN ADOPT ISSUES SUO MOTU
Now, it is trite that Judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that in their view would determine the real questions in an appeal. See Ikegwuoha vs. Ohawuci (1996) 3 NWLR (Pt. 346) P. 582 and Barde Egwa (2007) 1 NWLR (Pt. 1014) P. 71 at P. 86, Aduku vs. Adejoh (1994) 5 NWLR (Pt. 346) P. 582 and Barde Egwa vs. Moses Ciroma Egwu (2007) 1 NWLR (Pt. 1014) P.71 at P. 86. PER TIJJANI ABDULLAHI, J.C.A.
LEGISLATION: WHETHER STATUTORY PROVISIONS CAN BE WAIVED
The law is settled beyond peradventure that statutory provisions cannot be waived and rules of Court override statutory provisions of the law. See Dr. A.B. Raji vs. University of Ilorin (2007) All FWLR (Pt. 346) 326 at 337. PER TIJJANI ABDULLAHI, J.C.A.
JURISDICTION: WHETHER PARTIES CAN AGREE TO CONFER JURISDICTION ON THE COURT
The law is trite that parties cannot consent or agree to confer jurisdiction on the court where the court has none by law. See the case of A.G. Anambra State and 5 Ors. V. Ephraim Okeke & 4 others (2002) FWLR (pt. 112) 175 at 209 where the Supreme Court held that:
“The acquiescence of the parties would not confer jurisdiction on the court below to entertain the purported appeal ….”
See also the case of Lakanmi v. Adene and 3 others (2003) 4 SCNJ, 348 at 355; Ukpong v. Commissioner for Finance & Anor (2006) 12 SCNJ, 129 at 154 and Ejike and 4 Ors. v. Ifeadi and 4 Ors (1998) 6 SCNJ, 87 at 101. PER TIJJANI ABDULLAHI, J.C.A.
EVIDENCE: POSITION OF THE LAW IN RELATION TO DOCUMENTS PREPARED IN ANTICIPATION OF IMPENDING LITIGATIONS
On Issue No. 2, let me begin my consideration of this issue by restating the position of the law in relation to documents prepared in anticipation of impending litigations. Generally, speaking, such documents are not admissible in evidence but there are exceptions to this general rule. In the case of Anisu v. Osayomi (2008) 15 NWLR (pt. 1110) p. 246 at 275, this court per Abdullahi JCA held that:
“As general principle, document made by a person interested when proceeding(s) are pending or is anticipated is not admissible. The provision, in my humble view, excludes documents made in anticipation of litigation by a person who is not personally interested in the outcome of the litigation. In other words, the disqualification of a person as (person interested) relates only to a situation where such a person has personal interest in the matter and not where he merely has interest in an official capacity. Thus where the interest of the maker of the document is purely official or as a servant or employee having no direct personal interest these provisions do not apply to him and as such admissible.”
See also the case of University of Ilorin & 4 Others v. Olaweto E. R. (Mrs) and 25 others CA/IL/15/2011 per Mbaba, JCA. Delivered on 8/5/2012. PER TIJJANI ABDULLAHI, J.C.A.
LAND LAW: HOW AN INTEREST IN LAND CAN BE EXTINGUISHED
This brings me to the examination of section 44 of the 1999 Constitution as well as section 28 of the Land Use Act. Let me start with section 44 of the 1999 Constitution and it provides thus:
“44-(1) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by a law”.
Undoubtedly, from the provisions of the section set out supra, one cannot arbitrarily extinguish another person’s interest without following due process as the Respondents would have wanted to do in the instant case. Closely following the above is this, how can an interest in land be extinguished? Section 28 of the Land Use Act spelt out the conditions that must be met before an interest, legal or equitable, in land could be extinguished.
A hard look at the provisions of the said section (28 of the Land Use Act) one can see that it spelt out several conditions that must be met before an interest in land can be extinguished. For our purpose, sub sections 4 and 7 of the said Act are relevant and they are to the effect that a Governor shall revoke a Right of Occupancy in the event of the issue of a notice by or on behalf of the Head of the Federal Government if such notice declares such land to be required by the Government for public purpose and that the title of the holder of a Right of Occupancy shall be extinguished on receipt by him of a notice given under sub-section (5) or on such later date as may be stated in the notice.
The question to be asked again is whether the Appellant was served with any notice of revocation as stipulated by section 28(7) of the Land use Act above reproduced. As can be gathered from the record, 2nd and 3rd Respondents admitted that the name of the Appellant was not correctly written on Exhibit DW3. That being the case, I am of the considered view that Exhibits DW3 or 5 could not have revoked the Right of Occupancy granted to her and never served on her as required by section 28 (1) and (7) of the Land Use Act 1978. See the case of Alhaji Jimoh Aladisun v. Jobak (Nig.) Ltd. CA/IL/76/2010, delivered on 26/4/12; Alhaji Mogaji Obudu Lateju v. Dr. Olufabayo: CA/IL/29/2009. DELIVERED ON 17/11/2011 PP. 17 – 18.
The law is trite that unless there is a valid extinguishment of an interest in land, an allotting authority cannot validly allocate a piece of land to more that one allottee. In the case of EMY. J. Bila Auta v. Chief Willy Ibe (2003) FWLR (Pt. 173) 87 at 100, the apex Court per Musdapher JSC (as he then was) held that:
“Before I part with this issue, I think it is also important to bear in mind that even if the appellant had properly established the area she was claiming her claims ought to fail because it was common ground both the appellant and the respondent alleged grant were made by a common grantor, the Jalingo Local Government. It is not disputed that the appellant was granted the land much later in time than the respondent. Accordingly, when the respondent was granted his plot on the 13/11/1981 by the Jalingo Local Government, the Jalingo Local Government had divested itself in the land for it to grant the same land in 1983 to the appellant. See Atanda v. Ajani (supra). A certificate of exclusive possession and the rights provided for in favor of the person in possession of such certificate. The right of occupancy granted to the appellant was granted to her when the respondent was lawfully enjoying an earlier grant to him of the same land. See Joshua v. Ogunleye (1990) 2 NWLR (pt. 135) 745 at the time, the appellant was granted exhibits a, b, or when exhibit C was issued by the Jalingo Local Government and by Taraba State Ministry of Lands and Survey, the grantor had no longer the competence to grant the same land to anybody, the right earlier created in favor of the respondent not revoked.” PER TIJJANI ABDULLAHI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI (PJ) Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
MRS. BAMISO MAYOWA BUKOLA Appellant(s)
AND
1. MRS. V. A. OSHUNDAHUNSI
2. COMMISSIONER FOR LANDS AND HOUSING KWARA STATE
3. MINISTRY OF LANDS AND HOUSING KWARA STATE Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice Kwara State holding at Ilorin in suit No. KWS/149/2005 delivered by Adewara (J) on the 22nd day of February, 2011 in which the learned trial Judge held that the claimant failed to prove her case on the preponderance of evidence and therefore dismissed same.
The Appellant was the Plaintiff/claimant in the Court below whilst the Respondents were the Defendants in that court. On the 1st day of August, 2005, the Appellant as Plaintiff/claimant through her counsel J. O. Baiyeshea (SAN) took out a writ of summons in the lower court in which the following reliefs were sought.
“1. Declaration of title to the parcel of land located at Tanke Area, Ilorin, Kwara State and properly described as plot 21, Block 28A, TPS/Misc. 124 and conveyed to the claimant by letter of allocation Ref: LAND/ARO/RES. 2402/Vol.1/5 dated 8th December, 2001.
2. A declaration that entry of the Defendants on the claimant’s parcel of land constitutes trespass.
3. N100, 000.00 damages against the defendant for trespass on the Claimant’s land.
4. An order of perpetual injunction restraining the defendant her agents, privies and other persons however described from further trespassing on the Claimant’s land.
5. A declaration that the purported revocation of the Claimant’s interest, title, holding and possession of the said plot by the 2nd and 3rd defendants is null and void and of no effect whatsoever.
6. A declaration that the purported allocation of the said plot No. 21, Block 28 TPS/Misc, 124 (Ilorin) of 0.182 Ha as contained in the approval for grant of A Right of occupancy No. KW 14405 of 3rd August, 2005 to the 1st Defendant by the 2nd and 3rd Defendants is null and void and of no effect whatsoever.
7. An order of this Honourable Court setting aside the purported allocation of the said plot No. 21, Block 28A TPS/Misc. 124 (Ilorin) of 0.182 Ha as contained in the approval for the grant of A Right of Occupancy No. KW 14405 of 3rd August, 2005 to the 1st Defendant by the 2nd and 3rd Defendants.
8. A mandatory order compelling the 2nd and 3rd Defendants to issue the Approval for the Grant of A Right of Occupancy over the said Plot No. 21, Block 28 ATPS/Misc/124 of 0.182 Ha as per L.P. 55 FA Ilorin to the claimant.
Attached to the Writ of Summon is a Statement of Claim consisting of 23 paragraphs, Statement on Oath of the two witnesses for the claimants and some documents which were later tendered as Exhibits.
It is instructive to note however that the Appellant/Claimant’s Writ of Summons filed on the said date was initially against the 1st Respondent/Defendant as the sole Defendant. It was the first Defendant that brought an application to join the 2nd and 3rd Defendants as codefendants in this suit and the processes were then amended accordingly to reflect the 2nd and 3rd Defendants as parties in the suit.
In response, the 1st Defendant filed a statement of defence of 52 paragraphs which incorporated a notice of preliminary objection and the Statement on Oath of the two witnesses and some documents were filed along with the Statement of Defence of 1st Defendant which were later tendered and admitted as exhibits at the trial of the suit.
Upon being joined as Defendants and served with the Court processes in respect of the matter, the 2nd and 3rd Defendants vide a motion for extension of time filed their Statement of defence, Statement on Oath of their witnesses and documents later tendered as exhibits. At the trial, the Claimant testified in person and called her sole witness (her husband) and some documents were tendered through her.
In response, the 1st Defendant equally testified in person and called a witness one Johnson Oladipo, she equally tendered documents which were admitted and marked as exhibits. The 2nd and 3rd Defendants also called one witness by name Olatayo Adekeye through whom some documents were tendered. After the close of evidence, parties filed their written addresses and same were later adopted before the trial Court.
On the 22nd day of February, 2011, the learned trial Judge after evaluation of the evidence adduced by both parties in a considered judgment found for the Defendants/Respondents and held inter alia thus:
“Finally, having regard to the evidence adduced before me in this case, I am of the view that the Claimant has failed to establish her case on the preponderance of evidence and I so hold.
In consequence, I hold that the claim fails and same is hereby dismissed.”
The learned trial Judge dismissed the 1st head of counter claim for general damages but found merit in the 2nd head of counter claim for general damages wherein he held as follows:
“Finally, I find merit in the Counter Claim of the 1st defendant as same is hereby granted.
I award N1, 000.00 against the Claimant as general damages. Judgment is for the defendants.”
Aggrieved by the decision of the learned trial Judge, the Appellant approached this Court and expressed so by filing a notice of appeal consisting of 8 grounds and sought for an order of this Court, allowing the appeal and setting aside the decision of the trial Court.
Learned senior counsel distilled five issues for determination from the eight grounds of appeal as follows:
“1. Whether the learned trial judge rightly held that the 1st respondent’s statement of defence/counter-claim filed by Kayode Olatoke & Co. was valid as same was replied to by the appellant. (Grounds 2 and 3 of the Grounds of Appeal).
2. Whether the learned trial judge was right in holding that exhibit DW2 was not made in anticipation of a pending suit and whether exhibit DW2 was purportedly admitted in evidence. (Ground 4 of the Grounds of Appeal).
3. Whether the learned trial judge held that exhibit DW3 (which was issued without notice to the appellant) was valid to divest the appellant of her interest in the land and conferring same (title on the 1st respondent), having regard to law, facts, equity and weight of evidence in this case. (Grounds 1, 5 and 6 of the Grounds of Appeal).
4. Whether the learned trial judge was right in holding that the decision in ELERAN v. ADERONPE (2008) 11 NWLR (pt. 1097) is applicable to this case having regard to the distinguishing features, facts, laws, equitable doctrines, estoppels and decisions of the Supreme Court canvassed/cited at the trial. (Ground 7 of the grounds of appeal).
5. Whether the learned trial judge rightly granted the reliefs of the first defendant/respondent in the counter-claim. (Ground 8).
For their part, Counsel for the Respondents did not formulate issues for determination but adopted the issues distilled by the learned Senior Counsel for the Appellant as their issues that call for determination in this appeal.
On the 21st of February, 2012 when the appeal came for hearing before us, learned Senior Counsel for the Appellant, Mr. Baiyeshea, SAN, adopted the Appellant’s brief dated 31/10/2011 and filed the same date; the Appellant’s Reply-Brief dated 1/12/2011 and filed on 2/12/2011 as well as the Reply to the 2nd and 3rd Respondents’ Brief dated and filed on the 14th December, 2011 as his arguments in this appeal. Learned Senior Counsel urged us to allow the appeal and set aside the judgment of the lower Court.
Learned Counsel for the 1st Respondent, Dr. Olatoke adopted his brief dated and filed on 21/11/2011. He urged us to dismiss the appeal as lacking in merit. In response to the purported admission as canvassed by the learned Counsel at P. 329 and 311 of the Record, learned Counsel referred the Court to paragraph 3.11 at p. 13 of his brief of argument and submitted that evidence of the Appellant on those pages are inconsequential having been shown that the letter of revocation of the land was sent by post to her address furnished to 2nd and 3rd Respondents. He urged the Court to discountenance such arguments.
Learned Counsel for the 2nd and 3rd Respondents, Mrs. Grillo, learned Solicitor-General adopted her brief of argument dated 29/11/2011 and filed on 1/12/2011 as their argument in this appeal and urged us to dismiss the appeal.
Replying on points of law learned Senior Counsel contended that there was no such evidence of service as canvassed by the learned Counsel for the 1st Respondent. Learned Senior Counsel went on to contend that as the Court can see on p. 9 of the Appellant’s brief, the name of the Addressee is not that of the Appellant. It is not the name captured on the brief. Both exhibits and DW3 were certified by the 2nd and 3rd Respondents.
Learned Senior Counsel contended that there is doubt as to the address of service which they used in the purported service. The doubt, learned Senior Counsel went on, should be resolved in favour of the Appellant. They did not say they used both addresses in serving the Appellant, learned senior counsel further canvassed.
ARGUMENT OF ISSUES
ISSUE NO. 1.
Issue No. 1 is whether the learned trial Judge rightly held that the 1st Respondent’s statement of defence/counter claim filed by Koyode Olatoke and Co. was valid as same was replied by the Appellant.
Learned Senior Counsel began his consideration of this issue by stating that the issue was raised as a preliminary matter at the address stage before the trial Court, but the learned trial Judge, learned Senior Counsel went on, unfortunately resolved that issue against the Appellant. Learned Senior Counsel submitted that the signature of a Court process must be appended only by a legal practitioner who is recognized as such by the Legal Practitioners’ Act. For this submission, learned Counsel placed reliance on Section 2(1) of the Legal Practitioners’ Act and Section 24 of the same Act which defines a legal practitioner as:
“A person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”
It is the submission of the learned Senior Counsel that going by the two provisions one out of which is quoted above, it is statutory clear that a legal practitioner is one whose name is entitled to practice as a Barrister or as a Barrister and Solicitor and the name of such a person must be on the roll. It is therefore submitted that it is only a person who has satisfied these statutory requirements that can act as such to sign or authenticate any court process in any proceedings. Consequently, Senior Counsel submitted that, Kayode Olatoke & Co. is only a firm of legal practitioners and not a legal practitioner, and the signing of the 1st respondent/defendant’s statement of defence/counter-claim by that name that is not recognized by the law makes that particular process, together with all evidence led thereon, incompetent, null and invalid, and he urges us to so hold. In support of this submission, learned Senior Counsel relied on the following cases:
1. AMOS OKETADE V. OLAYINKA ADEWUMI & 4 ORS. (2010) 8 NWLR (PT. 1195) 63 AT 74.
2. EMMANUEL OKAFOR & 2 ORS V. AUGUSTIN ENWEKE & ORS (2007) 3 SCNJ 185 AT 191.
3. NEW NIGERIA BANK V. DENCLAG LTD (2004) ALL FWLR (PT. 228) 606 AT 633.
4. FIRST BANK PLC V. MAIWADA (2003) FWLR (PT. 151) 2001 AT 2015
Learned senior counsel specifically referred to the decision of the apex court in the case of Okafor and 2 others vs. Augustine Nweke & Ors (supra) where the said court held thus:
“Since both parties agree that J.H.C. Okolo SAN & Co. is not a legal practitioner recognized by law, it follows that J.H.C. Okolo SAN & Co. cannot legally sign and/or file any process in the courts and as such the motion on notice filed on 19th December, 2005, notice of cross appeal, and appellant’s brief of argument in support of the said motion all signed by the firm known and called J.H.C. Okolo SAN & Co. are incompetent in law particularly as the said firm of J.H.C. Okolo SAN & Co is not a registered practitioner.”
Learned senior counsel contended that on the principle of stare decisis, the trial court is bound by all these decisions of the superior courts. Learned senior counsel urged us to hold that the statement of defence/counter-claim of the 1st Respondent/Defendant is incompetent and is not worthy of being considered at all by the trial court.
Learned senior counsel attacked the holding of the lower court wherein it held that the issue of signing the 1st Defendant/Respondent’s processes by a person unknown to law was not raised timeously. Learned senior counsel opined that the issue of signing such a process by a person unknown to law goes to the competence of such a process and consequently affects the jurisdiction of the court to entertain such a process. Learned senior counsel submitted that it is trite law that the issue of jurisdiction can be raised at any stage of the proceedings, even for the first time on appeal.
It is the submission of the learned Senior Counsel that the fact that Appellant/claimant filed a reply to the statement of defence/counter-claim and raised this issue at the address stage is of no moment, as it is a jurisdictional matter which can be raised at any time. Learned Senior Counsel further submitted that the Issue of signing of the Statement of defence by the name of a firm of legal practitioners is more than a mere irregularity which the rules of Court can cure, contrary to the learned trial Judge’s view. He relied on the case of Okafor vs. Nweke (supra) at p. 194 and Okatade v. Unmi (supra) at page 74 to buttress his submission on this point.
Learned Senior Counsel further submitted on this point that, the signing of a process by a firm of a legal practitioner, is a statutory issue which cannot be waived and rules of Court cannot override statutory provisions of the law. For this submission, learned Counsel relied on the cases of Dr. A. B. Raji vs. University of Ilorin (2007) All FWLR (pt. 345) 325 at 337; Elabanjo v. Dawodu (2006) 6 SCNJ, 204 and Pastor I. F. Olaniyan and 3 Ors vs. Oyewole and 4 Ors (2008) All FWLR (Pt. 399) 503 at 523.
Learned Senior Counsel urged us to hold that signing of the 1st Respondent/Defendant’s statement of defence/counter-claim by “Kayode Olatoke & Co” is a jurisdictional matter that relates to the substantive law (the Legal Practitioners Act), which is fundamental to the 1st respondent/defendant’s case and that all evidence purportedly led on incompetent statement of defence/counter-claim amount to nullity, since one cannot put something on nothing and expect it to stand. See MACFOY V. UAC (1961) 3 NLR 1005.
Learned senior Counsel went on to submit that the learned trial Judge was wrong to have held that the document was valid merely because the Appellant filed a reply to it. The learned trial Judge did not take cognizance of the law which is to the effect that parties cannot consent or agree to confer jurisdiction on the court where the court has none by law. He relied on the case of AG ANAMBRA STATE & 5 ORS. V. Ephraim Okeke & 4 Ors (2002) FWLR (Pt. 112) 175 at 209 where the Supreme Court held that:
“The acquiescence of the parties would not confer jurisdiction on the court below to entertain the purported appeal…”
See also LAKANMI v. ADENE & 3 Ors (2003) 4 SCNJ 348 at 355; UKPONG V. COMMISSIONER FOR FINANCE & ANOR (2006) 12 SCNJ 129 at 154 and EJIKE & 4 ORS v. IFEADI & 4 ORS (1998) 6 SCNJ 87 at 101.
Learned Counsel urged us to answer issue one in the negative and hold that the 1st Respondent/Defendant’s statement of defence/counter-clam is invalid.
ISSUE 2.
Issue 2 is whether the learned trial Judge was right in holding that Exhibit DW2 was not made in anticipation of a pending suit and whether exhibit DW2 was purportedly admitted in evidence.
Learned senior counsel argued that the admission of Exhibit DW2, which was issued to the 1st Respondent by the 2nd and 3rd Respondents on 3/08/2005 while the suit of the Appellant was instituted on 1/08/2005 the evidence, needs to be reviewed together with the originating process whereby the suit was originally instituted. Moreover, learned senior counsel posited that there is a preceding letter of 25/7/05, Exhibit 6 which was written to the 2nd Respondent by the Appellant’s solicitor with respect to the land in dispute.
Learned Senior Counsel submitted that Exhibit 6 among others, was sufficient, for which Exhibit DW2 should not have been issued at all in favour of the 1st Respondent, even though an alleged allocation had been made to the 1st Respondent on 24/3/2005, (Exhibit DW1). Learned Senior Counsel contended that issuing Exhibit DW2 by the 2nd & 3rd Respondents two days after the suit was originally instituted and reviewed by the 1st Respondent was wrong and the learned trial Judge ought to have rejected it as it was made and issued in anticipation of the suit against the 1st Respondent.
Learned Senior Counsel submitted that the law is trite that a document made in anticipation of a pending suit is inadmissible. For this submission, learned Counsel relied on the case of Boniface B Gwar vs. S. O. Adole (2003) FWLR (Pt. 176) 747 at 765. Learned Counsel urged us to expunge DW2 from the record as it is inadmissible in law since it was made in anticipation of a pending suit. He referred us to the case of Olayinka v. The State (2007) 9 NWLR (Pt. 1046) 561 at 577 to buttress his submission on this point.
ISSUE 3
Issue three is whether the learned trial Judge rightly held that Exhibit DW3 (which was issued without notice to the Appellant) was valid to divest the Appellant of her interest in the land and conferring same (title on the 1st Respondent) having regard to law, facts, equity and weight of evidence in this case.
In arguing this issue, learned senior counsel contended that from the pleadings of the parties, the central or key issue in this case is whether the purported revocation of the interest of the Appellant by the 2nd and 3rd Respondents was valid in law. The Appellant’s case by her pleadings, learned senior counsel went on, was and still is that she is an allottee of the piece of land in dispute and that she was surprised that the same piece of land could be allocated to the 1st Defendant via Exhibit DW1 (1st Respondent’s letter of allocation dated 24/3/2005) upon a spurious claim that the Appellant had been divested of her interest in the land before same was purportedly vested in the 1st Respondent.
Learned Senior Counsel further contended that, a resolution of this issue highlighted (supra) will substantially determine this appeal, for where this court finds that in law, the interest of the Appellant had not been revoked, the logical consequence that follows naturally is that the 1st Respondent in law had not been vested with any interest or title in the land.
It is the contention of the learned senior counsel that there was no dispute as to the following facts listed hereunder before the trial court.
(a) That the appellant was an allottee of the piece of land in dispute, i.e. LAN/ARO/res.24020/Vol.1/5;
(b) The land was allocated to the appellant by the 2nd and 3rd respondents via exhibit 1 dated 8th December, 2001;
(c) That the appellant received the letter of allocation and paid the fees and charges for the issuance of the right of occupancy in respect of the land (exhibits 2, 3, 4 and 5).
(d) That the 2nd and 3rd respondents saddled with the responsibility of issuing the right of occupancy to the appellant did not issue same to her despite acknowledging receipt of payment for same.
(e) That the same 2nd and 3rd respondents again purported to allot the same piece of land to the 1st respondent.
(f) The appellant challenged the 1st respondent and reported the matter at the police station, Tanke, Ilorin.
(g) That it was at the police station that the 1st respondent handed to the police a document purporting to be a revocation letter in respect of the land (exhibit DW3).
(h) Exhibit Dw3 was addressed to one ‘Banuso Mayowa’;
(i) The sole reason given by the 2nd and 3rd respondents in the said exhibit was that the allocation of the said land to the appellant was revoked for failure to develop the land as contained in paragraph (3) of the grant of right of occupancy.
(j) That as at the time of writing/issuing exhibit Dw3 no right of occupancy had been issued to the appellant in respect of the land.
(k) The appellant was never served with any revocation letter and none was addressed to her.
Learned senior counsel submitted that from the evidence given before the trial court and the law, the interest of the Appellant in the land has not been extinguished at all, and the learned trial Judge was wrong to have held otherwise, with due respect, the learned senior counsel added. Learned senior counsel further submitted that the proprietary right or interest of a person cannot be withdrawn without complying with the law.
It is the submission of the learned senior counsel that based on the evidence before the trial Court, the Respondents did concede that the interest acquired by the Appellant by virtue of the allocation to her was limited to an equitable interest. Learned counsel referred to Exhibit 5, titled withdrawal of plot Allocation, and addressed Mrs. Mayowa Bukola Banuso, Ilorin, wherein the Appellant was informed of the withdrawal of her allocation. Learned counsel posits that a close look at Exhibit 2 curiously did not reflect the address of the Appellant on Exhibit DW3.
However, learned senior counsel argued that the letter of allocation interestingly but shockingly prohibited the Appellant out rightly from developing the land until the right of occupancy was issued to her. Learned counsel referred to paragraph 3 (ii) of Exhibit 2 in support of his submission, wherein it is stated thus:
“3. You should not occupy or develop the plot until
i……..
ii. Approval for the grant of right of occupancy is formally conveyed to you and you have accepted it.”
Learned senior counsel submitted and urged us to hold that the Appellant did not develop the land in compliance with paragraph 3(ii) of Exhibit 2 (not 1 as stated by the learned senior counsel) authored by the 2nd and 3rd Respondents. That being the case, the non-development of the plot, learned senior counsel went on, cannot be a valid reason/basis for the purported withdrawal of the said plot on the sole ground that the Appellant did not develop the land within three years pursuant to nonexistence right of occupancy. Learned senior counsel went on to submit that in Exhibit 2 (not Exhibit 1) the Appellant was emphatically instructed not to develop the plot until she was issued with occupancy permit and it is therefore unfair and perverse to turn around and blame Appellant for not developing the land she was warned not to develop by them and use that as an excuse to revoke same, it is even a travesty of justice that the trial court approved of this perverse situation.
It is the submission of the learned senior counsel that whether in law or in equity, a vested right or an acquired interest cannot be arbitrarily taken away from the beneficiary or abrogated upon a non-existence reason. For this submission, learned senior counsel referred to the case of GAABA vs. LOBI BANK (2003) FWLR (pt. 173) 106 at p.121.
Learned senior counsel referred to section 41 of the 1999 constitution and submitted that the law insists that no interest in land can be extinguished without strict compliance with the provisions of the relevant law. Learned senior counsel further submitted that the conditions that must be met before an interest, legal or equitable, in land could be extinguished are spelt out in section 28 of the Land Use Act.
It is the submission of the learned senior counsel that the evidence given by the Appellant of non-service of Exhibit DW3 (withdrawal letter) was not discredited under cross-examination. Learned senior counsel went on, “in fact and ridiculous enough, it was the 1st Respondent who produced a copy of Exhibit DW3 and gave same to the police while the Appellant, as the interest holder to the land was not aware of the issuance of the said document.” Moreover learned senior counsel further submitted that Dw3 was never addressed to the Appellant but to one “Banuso”.
On the authority of EKPEYONG vs. HYONG (1975) NSCC (vol. 9) 28 learned senior counsel submitted that a document meant for the Appellant could not have been validly addressed to another person. That being the case, learned counsel went on to submit that Exhibit Dw3 purporting to extinguish an interest in land must be personally served on the holder cannot be disputed. Again on this point, learned senior counsel stressed the fact that in Exhibit 1, which was the letter of allocation to the Appellant in the record filed with the 2nd and 3rd Respondents bears the Appellant’s full name and address thus:
“Banuso Mayowa Bukola,
Department of Agricultural Engineer,
University of Ilorin,
Ilorin.”
But Dw3 had no Appellant’s address and name except Ilorin. Learned senior counsel therefore submitted that the Respondents cannot be taken seriously when they stated in their defence that Exhibit Dw3 was sent to the Appellant via an address provided by her in her file with the 2nd and 3rd Respondents.
It is the submission of the learned senior counsel that having not served the notice of withdrawal of the land on the Appellant, having not addressed Exhibit DW3 to the Appellant and having premised Exhibit DW3 on a non-existent reason, the said exhibit (DW3) is patently invalid, ineffective and void. The purported withdrawal of the allocation of the said land from the Appellant cannot be valid. Learned senior counsel urged us to so hold.
Learned senior counsel holds the view that, given the fact that the allocation upon which the subsequent purported allocation of 24th March, 2005 to the 1st Defendant/Respondent was based on the invalid Exhibit DW3, the purported allocation to the 1st Respondent is invalid and void. The law is that unless there is a valid extinguishment of an interest in land learned senior counsel posits, an allotting authority cannot validly allocate a piece of land to more than one allotee. For this view, learned counsel relied on the case of EMY J. Bila Auto vs. Chief Willy Ibe (20003) FWLR (pt. 173) 87 at 100 paras A – E, per Musdapher JSC (as he then was).
It is the contention of the learned senior counsel that, the learned trial Judge validated Exhibit DW3 on the ground that the Appellant did not pay the prescribed fees within 90 days. Learned senior counsel submitted that this was an erroneous decision. This allegation learned senior counsel went on, was neither mentioned by the 2nd and 3rd Respondents in Exhibit DW3 nor pleaded by them. This allegation was raised for the first time by one of the Respondent’s witnesses (DW2, Mr. Olataye). It is his submission that parties are bound by their pleadings, and so whatever evidence that is given but not founded on pleadings will go to no issue. He relied on the cases of A. E. NSIRIM Vs. ONUMA CONSTRUCTION COMPANY (NIGERIA) LTD. (2001) 3 SCNJ 142 at 154 – 155, EJINDU Vs. OBI (1971) 1 SCNJ, 234 at 244 and IGE and ANOR Vs. D. O. AKOJ & 4 OTHERS (1994) 4 SCNJ, 288 at 298.
On the strength of the above authorities, learned senior counsel urged us to hold that the decision of the learned trial Judge was perverse as it was based on unpleaded facts and we were urged to resolve the issue in the negative and hold that Exhibit DW3 was invalid and could not have divested the Appellant of her interest in the land and as such could not confer any title in the 1st Respondent.
ISSUE 4.
Issue No. 4 is whether the learned trial Judge was right in holding that the decision in Eleran Vs. Aderonpe (2008) 11 NWLR (Pt. 1097) is applicable to his case having regard to the distinguishing features, facts, laws, equitable doctrines, estoppels and decisions of the Supreme Court canvassed/cited at the trial.
In arguing this issue, learned senior counsel in his written submissions spanning over 13 pages of his brief tried to make series of distinctions between the facts of the case in hand and that of Eleran vs. Aderonpe (2008) 11 NWLR (pt. 1097) contrary to the views held by the learned trial Judge who held that Eleran V. Aderonpe was on all fours with the facts and circumstance of the present case.
To start with, learned senior counsel contended that in the case of Eleran v. Aderonpe (supra) revocation was not an issue at all, although reallocation was. It therefore means that the Respondents in this case had a burden to prove that reallocation of the Appellant’s land had been validly done. See section 137 of the Evidence Act and the case of ADAKE V. AKUM (2003) FWLR (pt. 176) 625 at 633 and 644.
In Exhibit 5, the purported revocation letter which is to a different person and not claimant. The Supreme Court, learned senior counsel contended had occasion to decide on a case of mistaken identity in the case of DR. E. J. ESONOWO V. DR. I. UKPONG AND ANOR (1999) 4 SCNJ, 109 at 114. Learned counsel opined that on Exhibit 5, which was certified on 29/7/2005 by the Respondents themselves ex-facie, is addressed to Mr. (or Mrs.) Mayowa Bukola Banaso, Ilorin. That is, it was not only addressed to a wrong person (not the Appellant), but it was also addressed to no particular address.
Learned senior counsel went on to argue that the Respondents, knowing or realizing another one, which according to the learned senior counsel was conducted by, adding an address after the word Ilorin – Department of Agric Engineering, University of Ilorin, P.M.B. 1515, Ilorin, over eight months after filing of the instant case. Despite all this, learned counsel went on, unfortunately for them, the Respondents were unable to alter the wrong name of Banuso on Exhibit 5. And that aside, instead of the correct name of “Bamiso” which should have been properly issued and sincerely delivered to give the Appellant notice, they still failed.
It is the contention of the learned counsel that this case is fought frontally on the issue of revocation and the Respondents cannot run away from it. Allegedly, learned counsel went on, despite all these inconsistencies and cover up which the evidence and records have revealed, as well as the decision of the Supreme Court in E. J. ESONOWO VS. DR. I. UKPONG (supra), the learned trial Judge still held that the error in the spelling of the name was a mere technicality and that there had been proper service of the notice of revocation on the Appellant. Learned Senior Counsel held with due respect to the learned trial Judge is a perverse decision and we were urged to reverse it.
It is the contention of the learned Senior Counsel that the belated reliance on the case of Eleran vs. Aderonpe (supra) is an afterthought which cannot help the Defendants at all as the case is totally distinguishable from this case. Learned Senior Counsel urged us to note the evidence of DW3 (Olotayo Adekoye) a Land officer who under cross-examination admitted that to use a wrong name for a person is grave and fatal and that if he is called “Tayo” instead of “Olatayo” his proper name, he would not answer. Learned Senior Counsel opined that it is quite a big surprise that the learned trial Judge found it convenient to ignore this piece of evidence which according to the learned Senior Counsel is fatal to the case of the Respondents.
Doctrine of Estoppel:
Learned Senior Counsel contended that the combination of mistaken identity and the doctrine of estoppel will also distinguish the instant case from the case of Eleran vs. Aderonpe (supra). This is so learned Senior Counsel went on, because the issue of mistaken identity has vitiated the purported steps taken by the 2nd – 3rd Respondents to revoke the Appellant’s interest in the land.
It is also the contention of the learned Senior Counsel that the acceptance of all the statutory fees paid by the Appellant, the 2nd and 3rd Respondents are estopped from denying the title of the Appellant to the land. Learned Counsel further contended that in the case of Eleran vs. Aderonpe (supra) this Court did not consider the doctrine of estoppels based on section 151 of the Evidence Act. Learned Counsel placed further reliance on the case of ONAMADE vs. ACB (1997) 1 SCNJ, 65 at 83.
Learned Senior Counsel opined that it would be unfair, unreasonable, unjust and inequitable to allow the 1st Respondent who came in 2005 (three years after the Appellant paid for the land and possessed it) to supplant the Appellant just because 2nd and 3rd Respondents who allocated government land and took all the payments from her now prefer 1st Respondent for no just cause. Learned Counsel further opined that the case of Eleran vs. Aderonpe (supra) cannot hold in this case even the Justice of this Court in that case per Ogunwumiju JCA at page 79, paras E – F of the report lamented about the state of injustice perpetrated by the government officials in that case.
It is to be noted, the learned Senior Counsel contended that from the view of Ogunwumiju JCA in Eleran’s case that what the Appellants (government officials) did to the Claimant an allottee whose allocation was withdrawn, was unconscionable, that is not right, unreasonable and excessive and the Supreme Court, learned Senior Counsel, went on, condemned such acts and provided remedy to the victims in the case of Administrator vs. Eke-Spiff (2009) 2 SCNJ, 11 at 140 per Aderemi JSC.
It is the submission of the learned Senior Counsel that this Court was not as helpless as in the case of Eleran v. Aderonpe (supra) as it thought. Learned Senior Counsel relied on the case of Oyekanmi vs. NEPA (2001) FWLR (pt. 3) 404 at 436 paras A – G, where the supreme court in applying the principles of Ubi Jus Ibi remedium held that:
“The court is thus duty bound to provide a remedy irrespective of the fact that no remedy is provided either at common law or statute.”
Learned Senior Counsel then submitted that on the basis of this quoted decision, this Court, with due respect, under the principle of ubi jus ibi remedium should have provided the appropriate remedy to the wronged person in Eleran v. Aderonpe. Learned Senior Counsel referred to the Supreme Court’s decision in the case of Bello & Ors v. A.G. Oyo State (1986) 2 NSCC 1257 at 1264. Thus, the principle of ubi jus ibi remedium also distinguishes the present case from the case of Eleran v. Aderonpe where that was not considered by this honourable Court.
Again, learned Senior Counsel submitted that the 2nd and 3rd Respondents committed multiple wrongful acts by going ahead with the purported issuance of Right of occupancy to the 1st Respondent after being warned of an impending suit on the matter and actually after the suit had been filed in Court. Exhibit 6, the Appellant’s solicitor’s letter to the 2nd Respondent dated 25th July, 2005 was delivered as acknowledged by DW3. The same letter was copied to the 1st Respondent. As at that date, the Right of Occupancy had not been issued to the 1st Respondent. The Appellant by that letter gave indication that she may have to go to court on the matter.
Learned Senior Counsel contended that the 2nd and 3rd Respondents issued the purported Right of Occupancy on 3rd of August, 2005, three days after the suit was filed. This kind of arbitrary conduct which has the tendency to demean and diminish the authority of the Court was condemned by the Supreme Court long time ago and that any such act is liable to being nullified. In the case of Military Governor of Lagos State v. Ojukwu (1985) 2 NWLR (pt. 10) 906 at 809, the Supreme Court held that:
“After a Defendant has been notified of the pendency of a suit seeking an injunction against him even though a temporary injunction has not been granted, he acts at his peril and subject to the power of the Court to restore the status quo wholly irrespective of the merits as they may be ultimately decided.”
It is the submission of the learned Senior Counsel that the instant case is clearly different from the case of Eleran vs. Aderonpe in the sense that, after becoming aware that a suit was going to be filed and was indeed filed, went ahead to issue a purported Right of Occupancy to the 1st Respondent on the Appellant’s land. This learned Senior Counsel further submitted is contrary to section 91 (3) of the Evidence Act.
Learned Senior Counsel held the view that the Right of Occupancy, Exhibit PW2 that was issued by the 2nd and 3rd Respondents on 3rd August, 2005 after the suit was filed on 1st August, 2005 was issued malafide with the intention of maliciously establishing that legal title was granted to the 1st Respondent. The Respondents have interest to cover up their wrongful act and present the Court with a fait accompli. The Respondents, learned Counsel went on should not be allowed in the interest of justice. Exhibit DW2 is therefore liable to be expunged from the record of the Court. For this submission, learned Senior Counsel relied on the case of Boniface B. Gwar vs. J. O. Adole (2003) FWLR (Pt. 176) 747 at 765.
Another distinguishing feature with the case of Eleran vs. Aderonpe (supra) is that as at 20th July, 2005 and various dates in July, 2005, when the Appellant first noticed that the 1st Respondent entered the land in dispute the 1st Respondent had no legal title. Learned counsel contended that at all material times and including 1st August, 2005 when the 1st Respondent went on to the Appellant’s land, she had no legal title or any title at all. Therefore the case of Eleran vs. Aderonpe is not applicable. The equitable principle to the effect that where equities are equal the first in title prevails is quite apt in this case. In support of this submission, learned Counsel relied on the case of LABODE V. OTUBU (2001) FWLR (Pt. 43) 209 at 235 per Uwais JSC (as he then was).
Learned senior counsel submitted that the document DW2 issued to the 1st Respondent by the 2nd and 3rd Respondents after this case had been filed is invalid. Learned Counsel urged us to consider the peculiar circumstance of the case and hold that the same stands on its own. It is his further submission that from the entire circumstances of the case, (pleadings, evidence and facts) the case was fought on the basis of alleged revocation and that being the case, he went on, the case of Eleran vs. Aderonpe is inapplicable and we were urged to so hold.
Learned Senior Counsel contended that before the Appellant’s land could be revoked, the Respondents must comply with the provisions of the Land Use Act but they woefully failed to do so. Learned Counsel referred us to the case of Nigeria Eng. Works Ltd. V. Demap Ltd. (2002) FWLR (Pt. 89) to buttress his submission on this point.
On Exhibit 5, titled “Withdrawal of Plot Allocation” dated 2nd February, 2005 and addressed (not to the Appellant) but to a wrong person, learned Senior Counsel argued that the centents of such letter which say inter-alia that failure to develop is contrary to section 3(1) of the Approval of Right of Occupancy, the Appellant denied having received the said Exhibit and could not be expected to comply with a thing that had not been brought to the notice of such a person. Learned Senior Counsel to support his argument on this point relied on the cases of M/S Ola Ilemibola Co. Ltd. V. Gov. Kaduna State (2000) 7 NWLR (Pt. 666) 633 at 651 paras D – E and Teriba vs. Adeyemo (2010) 13 NWLR (Pt. 1211) 242 at 263 Paras F – H.
Learned Senior Counsel urged us to apply the Supreme Court’s decision in the case of Teriba to the case in hand and nullify the wrongful act of the Respondents, more so when the Land Officer admitted under cross-examination that indeed no Right of Occupancy had been issued by the 2nd and 3rd Respondents to the Appellant.
It is the submission of the learned Senior Counsel that the above are sufficient distinctions that stand this case out from the case of Eleran v. Aderonpe (supra) which the learned trial Judge failed to consider. We were urged to resolve this issue in favour of the Appellant.
ISSUE 5.
Issue 5 is whether the learned trial Judge righty granted the reliefs of the first Defendant/Respondent in the counter-claim.
In arguing this issue, learned senior counsel submitted that as at July, 2005 when the first Respondent entered the land in dispute and started to dig the land, putting blocks and sand as she alleged, she had no legal or equitable right to do that. This is because, the learned senior Counsel went on, even by her own document (letter dated 24th March, 2005 from the 2nd and 3rd Respondents to the 1st Respondent) Exhibit DWF, clause II thereof prevented her from either occupying or developing the plot until she was given approval.
It is in evidence, learned senior counsel further submitted that the illegal Right of occupancy dated 3rd August, 2005, was purportedly issued to her by the 2nd and 3rd Respondents after she had entered the land from 19th, 20th – 25th July, 2005 illegally. It is trite that no cause of action can lie from an illegal act, learned senior counsel further concluded. For this submission, learned counsel relied on the case of Sobajo vs. Ikotun (2003) FWLR (pt. 172) 1751 at 1767.
Learned Senior Counsel contended that the action of the 1st Respondent is both immoral and illegal and as such cannot succeed at all on her reliefs. She entered the land and started working at her own peril. We were urged to resolve this issue in the negative by holding that the trial court was wrong in granting the reliefs of the 1st Respondent’s counter-claim.
Learned Senior Counsel in the light of the proceedings, urged us to allow the appeal of the Appellant and set aside the decision of the learned trial Judge.
As stated earlier in this judgment, learned Counsel for the 1st Respondent adopted in its entirety the issues distilled by the Appellant. In arguing the first issue, learned Counsel for the 1st Respondent submitted that the learned trial Judge was right to have held that the preliminary objection raised as to the validity of the statement of defence and defence to Counter-claim was not timeously raised having waited for 5 years before same was raised.
That aside, the learned Counsel contended that the said preliminary issue was not specifically set for hearing. Learned Counsel argued that the Appellant by not taking the issue timeously in law, one can rightly say that he (Appellant) hag waived his right to raise the issues that were canvassed. For this view, learned Counsel relied on the case of AYANWALE and Ors. v. Atande (1968) 1 NSCC 1 at 401.
Learned Counsel submitted that by Order 4 Rules 1 and 2 (1) of the Rules of the Court, the issue complained of by the Appellant is a mere irregularity as rightly held by the trial Court. To buttress this submission, learned Counsel relied on the case of Famfa Oil Ltd. Vs. AG. FED. (2003) 18 NWLR (Pt. 852) 453 at 470, paras E – H respectively.
Learned Counsel quoted the decision of the Supreme Court in that case where the apex Court inter-alia held that:
“A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered miscarriage of justice. There is no allegation of any miscarriage of justice in this matter.”
and submitted that the blame hipped on the trial Judge for classifying the issue under procedural jurisdiction is uncalled for because the learned trial Judge followed the decision of the Supreme Court in plethora authorities that issue of signing a court process or non-signing of same is a mere procedural irregularity that should not vitiate a suit. He relied on Famfa Oil Ltd v. A.G. FED. (Supra) at p. 457 to buttress his submission.
Learned counsel further submitted that it is now settled that: it is incumbent on a party complaining of irregularity to ensure the following: “make the application within a reasonable time and before taking any fresh step after becoming aware of the irregularity”, but in the instant case the Appellant took several steps after becoming aware of the irregularity. That being the case, learned counsel went on, it was therefore right and proper when the trial Judge agreed with the submission of the Respondent that the Appellant has deliberately lost and waived her right to raise the issue at the late hour in her written address and we were urged to so hold.
In arguing Issue No. 2, learned counsel submitted that the learned trial Judge was right, proper and justified in holding that Exhibit DW2 was not made in anticipation of a pending suit therefore the said exhibit was rightly admitted in evidence, learned Counsel concluded.
It is the contention of the learned counsel that Exhibit DW2 was/is not caught by section 91(1) of the evidence Act as argued by the learned senior counsel for the Appellant. Learned counsel further contended that to every general rule there are exceptions and among the exceptions listed under the said section is that such document will be admissible where the party tendering it is not the maker of the document and that the Court will also have regard to the circumstances under which the document was made. Learned Counsel relied on the case of Trade Bank plc vs. Chami (2003) 12 NWLR (pt. 836) at 213.
Learned Counsel submitted that Exhibit DW3 was not made by the 1st Respondent who tendered it at the trial of the instant suit and being a public document it therefore falls within the exceptions envisaged under section 91(5) of the Evidence Act and the case of Trade Bank plc vs. Chami (supra).
Learned Counsel referred to some of the pages of the printed record of proceedings and submitted that Exhibit DW2 was made long time before the commencement of the instant suit. It is therefore not tenable, learned counsel contended, to argue as wrongly did by the Appellant that Exhibit DW2 was issued in contemplation of the suit that led to this appeal. We were urged to hold that the learned trial Judge rightly and properly admitted Exhibit DW2. He again, relied on the case of Trade Bank plc v. Chami (supra) to support his contention on this point. Learned Counsel urged us to resolve this issue in favour of the 1st Respondent.
In arguing issue No. 3, learned counsel began by submitting that the learned trial Judge rightly held that Exhibit DW3 was valid to divest the Appellant of her interest in the land and the same title was rightly conferred on the 1st Respondent, having regard to law, facts, equity and weight of evidence in the case and he urged us to so hold.
Learned Counsel further submitted that there are abundant documentary and oral evidence before the trial Court as contained in the record of appeal that the letter of allocation, Exhibit 1 was only valid between 8th December, 2001 and 2nd February, 2005, when the land allocated to her was withdrawn for failure to develop the land within three years as contained under section 3(1) of the Approval for Grant of Right of occupancy and in line with the provisions of the Land Use Act.
It is the contention of the learned counsel that the Appellant never denied the fact that she did not develop the land allocated to her within the three years stipulated for her to develop it. Equity, learned counsel went on, aids the vigilant not the indolent. The Appellant, he went on, was not vigilant or meticulous to make use of the opportunity made available to her by the 2nd and 3rd Respondents when the land in dispute was formerly allocated to her.
On the payments made by the Appellant to the 2nd and 3rd Respondents, learned counsel contended that the said money was not paid within ninety (90) days as stipulated in Exhibit 1. The attitude of the Appellant, learned counsel contended justified the action of the 2nd and 3rd Respondents. The Appellant should not be allowed to benefit from her own wrongful act. He relied on the case of C.D.C. (Nigeria) Ltd. v. SCOA (Nig) Ltd. (2007) 6 NWLR (Pt.630) 300 at 366.
On Exhibit Dw3, it is the contention of the learned counsel that the fact that one of the three names of the Appellant which ought to read “BAMISO” was mistakenly written as “BANUSO” did/does not render the exhibit in effective, null and void as submitted by the Appellant. It is sufficient that the court was not misled since the same particulars given in Exhibit 1 issued to the Appellant concerning the land in dispute are the same particulars contained Exhibit Dw3 and the documents emanated from the 2nd and 3rd Respondents. Learned Counsel concluded on this point thus “therefore the mistake alleged by the Appellant on spelling of one of her three names is not of substance”. Learned Counsel went on to contend that it did not cause any confusion or miscarriage of justice. He relied on the case of Oladipo vs. Mobi L.G.A. (2010) 5 NWLR (Pt. 1186) 117 at 166 PARAS D – E. We were urged to hold that Exhibit DW3 was properly admitted by the trial Court. We were also urged to resolve this issue in favour of the 1st Respondent.
Issue No. 4 is whether the learned trial Judge was right in holding that the decision in Eleran v. Aderonpe (2008) 11 NWLR (Pt. 1097) is applicable to this case having-regard to the distinguishing features, facts, laws, equitable doctrines’ estopples and decisions of the Supreme Court canvassed/cited at the trial.
In arguing this issue learned Counsel submitted that the learned trial Judge was right in holding that the decision in Eleran v. Aderonpe (supra) is applicable to this having regard to the distinguishing features, facts, laws, equitable doctrines, estopples and decisions of the apex Court cited and canvassed at the trial of this case and we were to urged to so hold.
It is the submission of the learned Counsel that the mere allocation of the land in dispute to the appellant in principle through Exhibit “I” contingent upon fulfillment of some conditions precedent does not confer any right on the Appellant herein. It follows therefore, learned Counsel further submitted, that the approval for Grant of Right of occupancy issued to the 1st Respondent extinguished all other existing claims on the land in dispute because the 1st Respondent has acquired a legal right on the land. For this submission, learned counsel relied on the case Eleran v. Aderonpe (supra) page 82, paras B – C.
In response to paragraph 9.05 of the Appellant’s brief, learned Counsel submitted that whether “withdrawal” or “revoked” the two words mean the same thing and can be used inter changeably. It would have been a different thing, learned Counsel went on, if one person says that the land is “revoked/withdrawn” and the other person says that the land is acquired, there is a clear difference between acquisition and revocation/withdrawn but “withdrawal” and “revocation” are the same. Learned Counsel relied on the cases of Udengwu v. Uzugbu (2003) (Pt.179) FWLR, 1173 at 1186 – 1187 and Adeniran v. Alao (2002) (Pt. 90) FWLR 1825 at 1296 – 1297.
Learned Counsel further submitted that in the case of Eleran v. Aderonpe (supra) the Court of Appeal still held that the subsequent reallocation of the land by the Ministry of Land and Housing, Ilorin to another person is still valid because the 1st allottee has not been issued a Right of Occupancy whereas the subsequent allottee has obtained a Right of Occupancy in respect of the land in dispute in that case just like in this case.
On the issue of estopple raised by the Appellant, learned Counsel submitted that the issue is against her position because she is the one to be Stopped from reclaiming the right she deliberately lost by her conduct and not the Respondents who were merely exercising their statutory rights under the law. More so that the Appellant did not deny the fact that the administrative charges she paid were paid outside 90 days contrary to the terms of Exhibit I that she tendered in this case. She cannot benefit from her own wrongful or negligent conduct and he prayed the court to so hold.
On the case of Administrators v. Ek-Pifft (supra), learned Counsel contended that the Appellant’s Counsel revisited that case as if something reasonable could be made out of it, unfortunately, the facts of the case as revealed at p. 120 of the Law Report, learned Counsel went on, shows that the case is highly at variance with the one at hand. Learned Counsel submitted that by virtue of Exhibit DW3, the Appellant has no right (whether equitable or inequitable) to the land in dispute. Learned Counsel then submitted that the case of Military Governor of Lagos State v. Ojukwu (1985) 2 NWLR (Pt. 10) 806 at 809 relied upon the Appellant is not helpful to her case and he prayed the Court to so hold.
On Exhibit 5, learned Counsel argued that even if the Exhibit was not considered at all, Exhibit I which the Appellant received and tendered in evidence herself binds the Appellant and it also contains certain conditions which the Appellant did not fulfill and by that Exhibit, the 2nd and 3rd Respondents reserved the right to revoke the land in dispute from her without notice. Learned Counsel further argued that she conceded to this fact under cross-examination and that is an admission against her interest. This settles the controversy in this case and for all, learned Counsel further stressed. We were urged to so hold. Learned Counsel urged us to resolve this issue in their favor.
Last but not the least, issue for determination in the Respondents’ brief is issue No. 5 which is whether the learned trial Judge rightly granted reliefs of the 1st Defendant/Respondent in the counter-claim. Learned counsel submitted that the learned trial Judge was right when he granted the reliefs of the 1st Respondent in her counter-claim as follows:
“Finally, I find merit in the Counter-claim of the 1st respondent and is hereby granted. I ward N1, 000,000 against the appellant as general damages”. See p. 389 of the record of appeal.”
In response to paragraph 8.06 of the Appellant’s brief, learned counsel submitted that the 1st Respondent only prayed the court to make a declaration that she is/was the person in possession of the land in dispute based on the evidence before the Court and based on the exhibits tendered by her, since the Appellant is also claiming possession of the same land in dispute.
Learned Counsel Posits that the 1st Respondent is only saying that the Court should recognize her as the person in lawful possession since the Appellant’s title to the land has been withdrawn/revoked by the 2nd and 3rd Respondents. The case of Chief Igbona Ezekwesili and Ors. V. Chief B. Agbapuounwu (2003) 4 SCNJ, 174 at 191 cited by the Appellant is apposite to the facts of the instant case. We were urged to so hold and resolve this issue in favour of the 1st Respondent.
Learned Counsel for the 2nd and 3rd Respondents, A. O. Akinpelu (Mrs.) State Solicitor-General, in a brief settled by her, adopted 2nd to the 5th issues as formulated by the Appellant. Needless to say she proffered arguments in respect of those issues but did not proffer nor formulate any issue to cover the points canvassed by the learned Counsel for the Appellant on issue No. 1 which is distilled from grounds 2 and 3 of the grounds of appeal. One is at a loss as to whether or not the learned Solicitor-General has conceded to the arguments canvassed by the learned Senior Counsel on that issue (1).
Be that as it may, in arguing issue 2, learned counsel submitted that the Appellant woefully failed to establish her title over the disputed land. It is the submission of the learned counsel that though, she was able to show that she was allocated the land in dispute in principle and which allocation was subject to the fulfillment of all the conditions stipulated in Exhibit 1.
Learned counsel contended that in the cause of giving evidence, the Appellant failed to prove to the trial court that she fully satisfied the stipulated conditions as the only evidence of title she has was Exhibit I which can only mature to legal title when all the conditions therein stipulated are fulfilled and she is issued with a statutory Right of Occupancy. Learned counsel further contended that no statutory Right of Occupancy was tendered by the Appellant as an evidence of title over the disputed, land.
Learned counsel submitted that under section 5(1) of the Land use Act, 1978, a Governor has the power to issue a statutory Right of occupancy to a person on application whether the person is already in possession of the land or not. Learned counsel further submitted that, an approval for the grant of Right of Occupancy issued to the 1st Respondent has extinguished all other existing claims on the land because the 1st Respondent has acquired a legal Right on the land. She relied on the case of General Cotton Mill Limited V. Travelers Palace hotels Ltd. (2006) 10 NWLR (part 989) p. 502 at p. 511, Tenila v. Olohunkun (1999) 4 SCNJ 92 or (1999) 5 NWLR (Part 602) p. 280 and Carrena v. Akin Lase (2008) 14 NWLR (Pt. 1107) p. 262 at 281 – 282.
On section 91(3) of the Evidence Act, learned Counsel submitted that there are exceptions to the general Rule and cited and relied on section 91(5) of the same Evidence Act and posited that under the provision of the said section 91(5), a document prepared by a party interested may still be admissible if the party tendering it is not the maker and having regard to the circumstance under which the document was made.
Learned counsel urged us to resolve this issue in favour of the Respondents and hold that Exhibit DW2 was not made, procured nor manufactured by the Respondents during the pendency of this suit or while the suit was being anticipated and to also hold that the said exhibit did not violate the provision of section 91(3) of the Evidence Act but that it falls within the exception created under section 91(5) of the Evidence Act.
On issue three, learned Counsel contended that Exhibit DW3 issued and served on the Appellant constitutes a valid instrument of withdrawal of title and was properly served on the Appellant. Learned counsel further contended that it is evidentially clear from the facts available on record that the Appellant failed, refused and neglected to pay the statutory fees within the mandatory three months period, this automatically renders her (Appellant) provisional grant revoked or withdrawn with or without notice of withdrawal from the 2nd and 3rd Respondents.
It is the submission of the learned Counsel that the non-payment of statutory fees within time and even failure by Claimant to pay some of those fees (i.e. survey fee and chatting fee) are serious and fundamental breaches of the terms of grant contained in Exhibit 1. The 2nd and 3rd Respondents are therefore in order to have withdrawn the allocation. The Notice of withdrawal (Exhibit Dw3) was not necessary going by the terms and conditions of grant as contained in Exhibit 1.
Learned counsel submitted that Exhibit Dw3 was addressed to the claimant with all the particulars of the land, its description, location and file number as in Exhibit 1 – letter of allocation; except for Appellant’s surname that was in advertently mis-spelt as “Banuso” instead “Bamiso”. We were urged to treat the mistake in the misspell of the Appellant’s surname as a mere technical error that does not demean from the fact that the exhibit was meant for and addressed to the Appellant and no other person. See JERIC V. UNION BANK (2000) 4 SCNOR 256, AMAECHI V. INEC (2008) 1 MJSC.
Learned Counsel further submitted that the withdrawal of Exhibit DW3 mean automatically that the provisional grant to the Appellant had reverted to the Respondents (2nd & 3rd) upon the Appellant’s breach of the conditions of the grant as stipulated in paragraph 2 of Exhibit 1. Learned Counsel urged us to hold that Exhibit DW3 is valid and it is enough documents to have divested the Appellant of her interest in the land in dispute.
On issue No. 4, learned counsel urged us to hold that the learned trial Judge was right to have held that the decision in Eleran v. Aderonpe (supra) is relevant and applicable to the facts and circumstances of the instant appeal. Learned Counsel went on to contend that the two cases relate to allocation of Plots of land to an allottee upon an application which was in principle and when the initial allottees failed to fulfill the conditions of grant, the plots of land were withdrawn from them and subsequently allocated to other allottees who immediately took over possession of the allocated land and paid necessary fees and fulfilled all conditions necessary to perfect their titles. The subsequent allottees even went further to perfect their title to the plots in question by obtaining Statutory Right of Occupancy which is the legal title over the allocated land.
Learned Counsel urged us to hold that even without Exhibit DW3, the Appellant would still be legally divested of her title over the disputed land by virtue of the term of contract of grant as reflected in paragraph 2 of Exhibit 1 which reads thus:
“In order to ensure that this offer does not lapse, relevant fees should be paid within 90 days from the date of this letter, otherwise, the plot may be reallocated to another person without further notice.”
Assuming but not conceding that Exhibit DW3 was or is pronounced as being invalid, the Respondents are still statutory empowered to withdraw the Appellant’s provisional allocation even without giving (the Appellant) any notice at all.
Learned Counsel urged us to resolve this issue in favour of the 2nd and 3rd Respondents.
The last but not the least issue for determination is issue No. 5. In arguing this issue learned Counsel submitted that, the law is now trite that it is the person in possession of the land that can maintain an action in trespass against any other person.
Learned Counsel adopted her earlier argument as to the legality of the title of the Appellant vis-a-vis the Respondents and further submitted that since the 1st Respondent has a better title over the land by virtue of the fact that she was issued with a Statutory Right of Occupancy in respect of the land in dispute, learned Counsel further submitted that the 1st Respondent has established her possession and legal ownership over the same and we were urged to so hold.
It is the submission of the learned Counsel that where a Defendant makes a Counter-claim, the Counter-claim must be adequately considered in the judgment of the trial Court and the trial Court must either uphold or dismiss it, depending on facts and circumstances and law applicable to the particular case. He (trial Judge) must make a finding on it and arrive at a decision as to whether it succeeds or fails and this, learned Counsel submitted is what the trial Court has done in the instant case. She relied on J. O. Anoliefo Enterprises Nigeria Ltd v. Universal Trust Bank Nig. Ltd. (2001) FWLR (Pt. 69) 1334, Dansol organization Ltd. v. Nigeria Technical Co. Ltd. (2001) FWLR (Pt. 59) 1267 and Musa V. Yusuf (2006) 6 NWLR (Pt.977) 454.
Learned counsel contended that the 1st Respondent has discharged the burden on her by proving the Counter-claim upon the preponderance of evidence as required by law and the learned trial Judge has rightly acted lawfully and properly by granting the relief in the said Counter-claim though in part. Learned Counsel urged us to resolve this issue against the Appellant.
Learned Senior Counsel for the Appellant filed a Reply Brief in which some of the points raised by the Respondents were debunked. The contents of the Reply-Brief will be referred to as and when appropriate in the course of writing this judgment.
RESOLUTION OF ISSUES
Now, it is trite that Judges who sit to hear appeals are at liberty and have the power to adopt or even formulate issues that in their view would determine the real questions in an appeal. See Ikegwuoha vs. Ohawuci (1996) 3 NWLR (Pt. 346) P. 582 and Barde Egwa (2007) 1 NWLR (Pt. 1014) P. 71 at P. 86, Aduku vs. Adejoh (1994) 5 NWLR (Pt. 346) P. 582 and Barde Egwa vs. Moses Ciroma Egwu (2007) 1 NWLR (Pt. 1014) P.71 at P. 86.
I am of the view and consistent with the decisions in the cases set out above, that the first three issues distilled by the Appellant would determine the real questions in this appeal. This appeal would therefore be determined on those three issues.
The 1st issue for determination as distilled by the Appellant as the risk of being repetitive is whether the learned trial Judge rightly held that the 1st Respondent’s statement of defence/Counter-claim filed by Kayode Olatoke and Co. was valid as same was replied by the Appellant.
In considering this issue, my first port of call is section 2 (1) of the Legal Practitioners Act, Cap L. 11, LFN, 2004 which provides thus:
“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll (underlining supplied for emphasis)”.
The provisions of the Act reproduced (supra) are self-explanatory and unambiguous and is required for their interpretation. It is only a person whose name is on the roll that can practice as a barrister and a solicitor. It is in the light of these provisions that section 24 of the same legal practitioner Act will be examined. It provides as follows:
“A person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or Proceedings.”
It is crystal clear going by the two provisions quoted (supra) that a legal practitioner is one whose name is entitled to practice as a barrister or as a barrister and solicitor and the name of such a person must be on the roll. This being the case, it is only a person who has satisfied these statutory requirements that can act as such to sign or authenticate any Court process in any proceedings. The question that is begging for an answer is whether Kayode Olatoke and Co. has satisfied the statutory provisions quoted above.
Now, to answer the question posed supra, recourse had to be made to the case law where similar issues arose for determination. Let me start with the case of Okafor and 2 Others v. Augustine Nweke and Ors (supra) at P. 191 where the apex Court held as follows:
“Since both parties agree that J.H.C. Okolo SAN & Co. is not a legal practitioner recognized by law, it follows that J.H.C. Okolo SAN & CO. cannot legally sign and/or file any process in the courts and as such the motion on notice filed on 19th December, 2005, notice of cross appeal, and appellant’s brief of argument in support of the said motion all signed by the firm known and called J.H.C. Okolo SAN & Co. are incompetent in law particularly as the said firm of J.H.C. Okolo SAN & Co. is not a registered regal practitioner.”
Again, in the case of Oketade vs. Adewunmi (2010) 8 NWLR (Pt. 1195) 63 at 74, our erudite emeritus Justice of the apex court, Tobi (JSC) has this to say:
“By section 2(1) of the Act, the only person in the profession wearing his professional name to practice law in Nigeria is a legal practitioner in section 24 of the Act does not include Olujimi and Akeredolu. This to me, is not a mere technicality to the judicial process as it directly affects the legal processes that brought this case on appeal.”
Learned Counsel for the 1st Respondent, submitted that it will be wrong for the Appellant to attack the trial Judge as she did at pages 8 – 9 of her brief in that she raised the issue as a preliminary matter at the address stage and for the 1st time and after about (5) years.
It is instructive to observe at this juncture that with respect due to the learned Counsel, there is no basis for the learned trial Judge to treat this important issue which affects the jurisdiction of the trial Court as a mere procedural irregularity. The law is settled beyond peradventure that statutory provisions cannot be waived and rules of Court override statutory provisions of the law. See Dr. A.B. Raji vs. University of Ilorin (2007) All FWLR (Pt. 346) 326 at 337.
I am of the considered view that the learned trial Judge was wrong to have held that the document was valid merely because the Appellant filed a reply to it. The law is trite that parties cannot consent or agree to confer jurisdiction on the court where the court has none by law. See the case of A.G. Anambra State and 5 Ors. V. Ephraim Okeke & 4 others (2002) FWLR (pt. 112) 175 at 209 where the Supreme Court held that:
“The acquiescence of the parties would not confer jurisdiction on the court below to entertain the purported appeal ….”
See also the case of Lakanmi v. Adene and 3 others (2003) 4 SCNJ, 348 at 355; Ukpong v. Commissioner for Finance & Anor (2006) 12 SCNJ, 129 at 154 and Ejike and 4 Ors. v. Ifeadi and 4 Ors (1998) 6 SCNJ, 87 at 101.
Let me pause at this juncture and state that this is one of those pretences of the law that makes the judge to be a stranger to the proceedings, according no recognition to the counsel who in fact handled the case and owned up the signature (his usual signature known to the court and comparable with his same signature on other processes in Court).
It must however be admitted that in this case all the processes were signed by Kayode Olatoke and co. using inconsistent signatures. See pages 56, 66, 88, 101, 106, 141 etc. of the record. This is not a situation of irregularity but a fundamental defect touching on the capacity of the person Kayode Olatoke and co. who signed to practice as a legal practitioner in Nigeria.
In the light of the foregoings, I am of the view that the question posed a while ago must be answered in the negative, that is to say Kayode Olatake and co. has not satisfied the statutory provisions;
(Sections 2(1) and 24 of the Legal Practitioners Act, 2004). Consequently the statement of defence of the 1st Respondent and the counter-claim signed by the said Kayode Olatoke and Co. are invalid. Issue No. 1 is therefore resolved in favour of the Appellant and against the Respondents. On Issue No. 2, let me begin my consideration of this issue by restating the position of the law in relation to documents prepared in anticipation of impending litigations. Generally, speaking, such documents are not admissible in evidence but there are exceptions to this general rule. In the case of Anisu v. Osayomi (2008) 15 NWLR (pt. 1110) p. 246 at 275, this court per Abdullahi JCA held that:
“As general principle, document made by a person interested when proceeding(s) are pending or is anticipated is not admissible. The provision, in my humble view, excludes documents made in anticipation of litigation by a person who is not personally interested in the outcome of the litigation. In other words, the disqualification of a person as (person interested) relates only to a situation where such a person has personal interest in the matter and not where he merely has interest in an official capacity. Thus where the interest of the maker of the document is purely official or as a servant or employee having no direct personal interest these provisions do not apply to him and as such admissible.”
See also the case of University of Ilorin & 4 Others v. Olaweto E. R. (Mrs) and 25 others CA/IL/15/2011 per Mbaba, JCA. Delivered on 8/5/2012.
Consistent with the decision of this court outlined above, I am of the view that Exhibit DW2 though made in anticipation of an action, that in itself would not make it inadmissible in law. The said Exhibit was prepared by the 2nd and 3rd Respondents in their official capacity most likely without any benefit accruing to them. Hence the said Exhibit is admissible in law and I hold without any hesitation that the Judge was right in admitting it in evidence.
However, that is not the end of the matter. Like I have held above, even though the said Exhibit may have been prepared and issued in anticipation of the suit, that alone, as I have stated a while ago cannot make the document inadmissible rather that fact should go to the weight and to my mind it appears it was even in the Appellant’s interest to admit it in evidence to show how and when the 1st Respondent was issued with the document upon which she bases her title.
Admissibility, generally speaking, is found on relevance of document.
Though section 91(3) of the Evidence Act can apply to reject such document, there is evidence that processes of allocation of the plot had started and was on going before the filing of the suit (and which formed the cause of action). To that extent the document became a necessary part of the 1st Respondent’s claim that should not be denied as evidence of her claim. However whether that enures her any good is another issue entirely.
In the light of the above, I am of the firm view that the learned Judge was wrong to have held that Exhibit DW3 (which was issued without notice to the Appellant) was valid to divest the Appellant of her interest in the land and conferring same title on the 1st Respondent, having regard to law, facts, equity and weight of evidence in this case. This is so, because at the time the said Exhibit was issued to the 1st Respondent, the right of the Appellant in the said property had not been extinguished.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 3
Issue No. 3 as can be seen from the record is whether the learned trial Judge rightly held that Exhibit DW3 (which was issued without notice to the Appellant) was valid to divest the Appellant of her interest in the land and conferring same (title on the 1st Respondent), having regard to law, facts, equity and weight of evidence in this case.
A close look at the pleadings of the parties would reveal that fact that the central issue in this case remains whether the revocation of the interest of the Appellant by the 2nd and 3rd Respondents was valid in law. The question to be asked at this stage is, whether from what transpired as can be gathered from the printed record, the interest of the Appellant had not been revoked. If same had not been evoked, then it follows naturally that the 1st Respondent in law had not been vested with any interest in the land.
Needless to say, to answer the question posed supra, one would have to examine closely what transpired between the Appellant on one side and the 1st Respondent as well as the 2nd and 3rd Respondents on the other. Such closer examination would reveal the followings:
“(a) That the appellant was an allottee of the piece of land in dispute, i.e. LAN/ARO/res.24020/vol. 1/5;
(b) The land was allocated to the appellant by the 2nd and 3rd respondents via exhibit 1 dated 8th December, 2001;
(c) That the appellant received the letter of allocation and paid the fees and charges for the issuance of the right of occupancy in respect of the land (exhibits 2, 3, 4 and 5);
(d) That the 2nd and 3rd respondents saddled with the responsibility of issuing the right of occupancy to the appellant did not issue same to her despite acknowledging receipt of payment for same;
(e) That the same 2nd and 3rd respondents again purported to allot the same piece of land to the 1st respondent;
(f) The appellant challenged the 1st respondent and reported the matter at the police station, Tanke, Ilorin;
(g) That it was at the police station that the 1st respondent handed to the police a document purporting to be a revocation letter in respect of the land (exhibit DW3);
(h) Exhibit DW3 was addressed to one “Banuso Mayowa;
(i) The sole reason given by the 2nd and 3rd respondents in the said exhibit was that the allocation of the said land to the appellant was revoked for failure to develop the land as contained in paragraph (3) of the grant of right to occupancy;
(i) That as at the time of writing/issuing exhibit DW3 no right of occupancy had been issued to the appellant in respect of the land;
(k) The appellant was never served with any revocation letter and none was addressed to her.”
This brings me to the examination of section 44 of the 1999 Constitution as well as section 28 of the Land Use Act. Let me start with section 44 of the 1999 Constitution and it provides thus:
“44-(1) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by a law”.
Undoubtedly, from the provisions of the section set out supra, one cannot arbitrarily extinguish another person’s interest without following due process as the Respondents would have wanted to do in the instant case. Closely following the above is this, how can an interest in land be extinguished? Section 28 of the Land Use Act spelt out the conditions that must be met before an interest, legal or equitable, in land could be extinguished.
A hard look at the provisions of the said section (28 of the Land Use Act) one can see that it spelt out several conditions that must be met before an interest in land can be extinguished. For our purpose, sub sections 4 and 7 of the said Act are relevant and they are to the effect that a Governor shall revoke a Right of Occupancy in the event of the issue of a notice by or on behalf of the Head of the Federal Government if such notice declares such land to be required by the Government for public purpose and that the title of the holder of a Right of Occupancy shall be extinguished on receipt by him of a notice given under sub-section (5) or on such later date as may be stated in the notice.
The question to be asked again is whether the Appellant was served with any notice of revocation as stipulated by section 28(7) of the Land use Act above reproduced. As can be gathered from the record, 2nd and 3rd Respondents admitted that the name of the Appellant was not correctly written on Exhibit DW3. That being the case, I am of the considered view that Exhibits DW3 or 5 could not have revoked the Right of Occupancy granted to her and never served on her as required by section 28 (1) and (7) of the Land Use Act 1978. See the case of Alhaji Jimoh Aladisun v. Jobak (Nig.) Ltd. CA/IL/76/2010, delivered on 26/4/12; Alhaji Mogaji Obudu Lateju v. Dr. Olufabayo: CA/IL/29/2009. DELIVERED ON 17/11/2011 PP. 17 – 18.
The law is trite that unless there is a valid extinguishment of an interest in land, an allotting authority cannot validly allocate a piece of land to more that one allottee. In the case of EMY. J. Bila Auta v. Chief Willy Ibe (2003) FWLR (Pt. 173) 87 at 100, the apex Court per Musdapher JSC (as he then was) held that:
“Before I part with this issue, I think it is also important to bear in mind that even if the appellant had properly established the area she was claiming her claims ought to fail because it was common ground both the appellant and the respondent alleged grant were made by a common grantor, the Jalingo Local Government. It is not disputed that the appellant was granted the land much later in time than the respondent. Accordingly, when the respondent was granted his plot on the 13/11/1981 by the Jalingo Local Government, the Jalingo Local Government had divested itself in the land for it to grant the same land in 1983 to the appellant. See Atanda v. Ajani (supra). A certificate of exclusive possession and the rights provided for in favor of the person in possession of such certificate. The right of occupancy granted to the appellant was granted to her when the respondent was lawfully enjoying an earlier grant to him of the same land. See Joshua v. Ogunleye (1990) 2 NWLR (pt. 135) 745 at the time, the appellant was granted exhibits a, b, or when exhibit C was issued by the Jalingo Local Government and by Taraba State Ministry of Lands and Survey, the grantor had no longer the competence to grant the same land to anybody, the right earlier created in favor of the respondent not revoked.”
It is instructive to state at this juncture that, the allegation of failure to develop the land is debunked by the direction given by the 2nd and 3rd Respondents in Exhibit I paragraph 3. (See page 9 of the record). The alleged withdrawal letter did not even suggest that the Appellant did not pay the fees required but alleged refusal to develop the plot.
In the light of all that has been said, the learned trial Judge was wrong to have held that Exhibit DW3 (which was issued without notice to the Appellant) was valid to divest the Appellant of her interest in the land and conferring same (title on the 1st Respondent) having regard to law, facts, equity and weight of evidence in this case.
This issue, like the previous two issues, is resolved in favor of the Appellant and against the Respondents.
All the three issues considered for the determination of this appeal, having been resolved in favour of the Appellant, the appeal succeeds and it is hereby allowed. The judgment of the learned trial Judge delivered on the 22/2/2011 divesting the Appellant of her plot is set aside and by virtue of the provisions of Order 4 Rule 4 of the Rules of this Court, 2011 and Section 15 of the Court of Appeal Act, 2007, all the 9 reliefs sought by the Appellant in the Court below are hereby granted.
I award N50, 000.00 costs in favour of the Appellant and against the 1st Respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to read in draft the erudite Judgment just delivered by my Lord the presiding Justice T. Abdullahi, JCA and there is no cause why I should differ from his reasoning and conclusions on all the issues which have fallen for determination in this appeal.
For the avoidance of doubt and to buttress the position taken by my noble Lord in the lead Judgment, where the Government had previously granted a Right of occupancy to the Appellant, that Right of occupancy cannot be revoked or put differently; the provisions of Section 28(7) of the Land Use Act, 1978, cannot be invoked to divest the Appellant of her preexisting title to the land in dispute without complying strictly with all the formalities stipulated in Sections 28(1) and (2) and particularly Section 44(a), (b), (c) and (e) of the Land Use Act.
In the celebrated case of Administrators and Executors of the Estate of General Sani Abacha (deceased) v. Samuel Eke-Spiff & 2 Ors. (2008) 37 NSCQR 364 at 399, 400-402, the Supreme Court speaking through P.O. Aderemi, JSC, emphasized the need for the strict adherence to the formalities for the revocation of Rights of Occupancy. Thus, where the 1st Respondent’s Right of Occupancy was revoked as in this case and the land re-allocated to General Sani Abacha and no Notice of Revocation was served on the Respondent, the erudite and emeritus Law Lord held:-
“By re-allocating the same plot of land to Major General Sani Abacha after revoking the right of occupancy of the Plaintiff, the 1st and 2nd Defendants cannot be said to have satisfied the provisions of section 28(1) and (2) of the land use Act which states as follows: Section 28(1) “It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.”
Having enumerated what is meant by “Overriding Public Interest” the learned Justice held further that by no means could the re-allocation of that plot to Major General Sani Abacha be tantamount to the provisions of section 28(2) of the Act. Again, just as in this case where the DW3 admitted that the Appellant was not duly served with the Revocation Notice in that the name on the Notice was wrongly spelt; there was a breach of Section 44 of the Act. The foregoing scenario apart, there is even no indication or any iota of evidence that compensation was paid the Appellant as required by the provisions of section 29 of the Land Use Act.
It would appear that the entire transaction was tainted with fraud and illegality, the 2nd and 3rd Respondents having failed to adhere strictly to the provisions of section 28 of the Act which as their Lordships held in the cases of LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (pt. 50) 413 and Peenok Investment Ltd. V. Hotel Presidential Ltd. (1983) 4 NCCR 122; and followed in the Admin/Executors V. Eke-Spiff case (supra) at page 400 – 401; the Section and its Subsections are expropriatory statutes which encroached on the Appellant’s proprietary right to the land in dispute.
Accordingly, the court below ought to have construed those sections “Fortissime Contra Preferentes”, (i.e. strictly against the acquiring authority but sympathetically in the Appellant’s favour) since her property was to be divested from her. Since the 2nd and 3rd Respondents failed woefully to comply with the provisions of the Act the consequence is that the revocation was/is nullity and of no effect what so ever as the said Respondent transferred nothing and the 1st Respondent in turn got nothing.
It is for these reasons and the fuller reasons advanced by my Lord the Presiding Justice in his lead Judgment that I also support the view that the learned trial Judge was wrong to have held that exhibit DW3 (which was issued without Notice to the Appellant) was valid to divest her of the interest in the land in dispute and conferring same thereto in favour of the 1st Respondent, having regard to law, facts, equity and weight of evidence in the case at hand.
I shall also allow the appeal for being pregnant with merit and hereby set aside the Judgment of the learned trial Judge (Adewara, J.) delivered on 22nd day of February, 2011 dismissing of the claim of the Plaintiff/Appellant.
I in addition grant all the Reliefs sought in the lower court in favor of the Appellant (then plaintiff) and accordingly abide by the order as to costs.
ITA GEOGE MBABA, J.C.A.: I have had the advantage of reading, in draft, the lead judgment just delivered by my learned brother, Tijjani Abdullahi JCA, and I agree with my Lord, completely, on his succinct resolutions of the issues.
I adopt his reasoning and conclusions therein as mine and I, too, allow the appeal and abide by the consequential Orders in the lead judgment.
Appearances
Mr. J. O. Baisheyea (SAN) with Y. A. Dikko Esq. K. Odetunji Esq., Bidemi Anmimashaun Esq., I. Adeyemi Esq., M. Tamimowo Esq. (Miss) and A. O. Kehinde Esq. (Mrs.)For Appellant
AND
Dr. J, O Olatoke with S.T. Abubakar Esq., O. W. Akanbi Esq., K. A. Uzamat Esq. (Miss) and O. O. Aweda Esq.
S.A. Grillo Esq.For Respondent
