NA’ADADE PETROLEUM LTD v. FCT MINISTER & ORS
(2022)LCN/17168(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, February 25, 2022
CA/A/352/2012
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
NA’ADADE PETROLEUM LIMITED APPELANT(S)
And
1. FEDERAL CAPITAL TERRITORY MINISTER 2. THE FEDERAL CAPITAL DEVELOPMENT AUTHORITY 3. ARAB AUTA YADAM RESPONDENT(S)
RATIO
THE PRIMARY DUTY OF THE TRIAL COURT
The settled principle of law is that evaluation of evidence and ascription of weight thereto remains the province of the trial Court which heard and observed the demeanor of the witnesses and is consequently in a better position to form an opinion as to the credibility of the said witnesses. See: EMMANUEL EGHAREVBA V. FEDERAL REPUBLIC OF NIGERIA & ORS (2016) LPELR-40045 (SC). PER ONYEMENAM, J.C.A.
THE POSITION OF LAW ON THE REQUIREMENTS OF COUNTERSIGNATURE
Exhibit D7 as seen at page 38 of the records of appeal is an unsigned survey map certified at Abuja Geographic information systems. On the effect of such unsigned survey plan, the Supreme Court in ALHAJI A. ALIYU V. DR JOHN ADEWUNMI SODIPO (1994) LPELR-423 (SC) held as follows:
“The requirements for countersignature relate to matters of evidence and the production of the document in evidence and a non-compliance, at any rate at that stage, with the Survey Act does not render the plan void or useless. I need add that where a plan is tendered per se but does not conform with the requirements of Section 3 (b) of the Survey Law (or Act), it may nevertheless be admitted in evidence “if good cause (is) shown to the Court” for non-compliance.”
The Supreme Court also in ASHAKACEM PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LIMITED (2019) LPELR-46541 (SC) held thus:
“The point has to be made that the requirement of signature is made by the law to determine its origin and authenticity with regard to its maker and so where certain situations exist an unsigned document could be admissible as in this instance where oral evidence clarifying the document and its authorship as in the case at hand thereby rendering such an unsigned document admissible.” PER ONYEMENAM, J.C.A.
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The Appellant instituted this appeal against the decision of the High Court of the Federal Capital Territory Abuja; delivered by L. H. Gummi (RTD CJ); on 13th December, 2011; in SUIT NO: FCT/HC/CV/363/2008. The brief fact of the case is that the Appellant and the 3rd Respondent were at different times granted Statutory Right of Occupancy by the 1st and 2nd Respondents over Plot No. 256, Cadastral Zone B05, Utako District Abuja.
While the grant to the Appellant was made on 11th December, 2006 and for the purpose of a Petrol Filling Station, the grant to the 3rd Respondent, on the other hand, was made on 25th March, 2006 and for Residential purpose.
It was contended that the original land use for the said plot of land is for residential purpose and that the 1st Respondent set up a Committee on review of cases of revoked titles in the FCT. Part of the committee’s recommendation was that all lands in the FCT be returned to their original land use as provided in the FCT master plan. Consequent upon the work of the above mentioned committee and the recommendations made therein, Plot No. 256, Cadastral Zone B05, Utako District, Abuja was reverted to its original purpose which is residential and reverted to the 3rd Respondent to whom the land was allocated initially for residential purpose.
The trial Court in its judgment refused the claims of the Appellant; but instead granted the Counter-Claim of the 3rd Respondent as follows:
“(1) That the purported grant to the Plaintiff/Defendant the Counter-Claim as evidenced by the offer of Statutory Right of Occupancy dated 11th day of December 2006 is illegal, null and void- in view of the Counter-Claimant’s prior and subsisting title, Rights and interest in and over all that property known as Plot No. 256 situated at Cadastral Zone B05, Utako District, Abuja measuring 5,435.96m2.
(2) That the Plaintiff (in the Counter-Claim) is the beneficial owner and therefore entitled to the exclusion of any other person whatsoever and how-so-ever to all that property known as Plot 256 situated at Cadastral Zone B05, Utako District, Abuja measuring 5,435.96m2.”
The Appellant was dissatisfied with the decision of the trial Court and has approached this Court relying on an Amended Notice of appeal filed on 14th August, 2012 and deemed properly filed and served on 25th June, 2014. Counsel on both sides filed relevant processes as required by the rules of the Court and the appeal was heard on 29th November, 2021.
O.J. ABOJE Esq. with T.A. OSAJI Esq., appeared for the Appellant, adopted and relied on the Appellant’s brief of argument filed on 30th September, 2016; but deemed properly filed and served on 4th December, 2017; the Appellant’s reply to the 1st and 2nd Respondents brief of argument filed on 5th February, 2021 and deemed properly filed and served on 29th November, 2021; the Appellant’s reply brief of argument to the 3rd Respondent’s brief of argument filed on 5th February, 2021 and deemed properly filed and served on 29th November, 2021 in urging the Court to allow the appeal.
F.S. JIMBA ESQ., with B.W. SEKPE ESQ., and FRANK ACHILIKE ESQ., appeared for the 1st and 2nd Respondents; adopted and relied on the 1st and 2nd Respondent’s Brief of Argument filed on 15th April, 2019; but deemed properly filed and served on 19th October, 2020; in urging the Court to dismiss the Appeal.
MALLAM MOHAMMED SHUAIB Esq., with E.F. ABAH Esq., appeared for the 3rd Respondent; adopted and relied on the 3rd Respondent’s brief of argument filed on 8th March, 2018 and deemed properly filed and served on 19th November, 2018 in urging the Court to dismiss the appeal.
In the Appellant’s brief of argument settled by O. J. Aboje Esq., the Appellant formulated 5 issues for determination as follows:
1. Whether the trial Court did not fail to evaluate Exhibit “D5” which could have proved that the 3rd Respondent’s title in Plot 256, Cadastral Zone B05, Utako District, Abuja was withdrawn/revoked without any complaint from the 3rd Respondent thus making Exhibit “O3” irrelevant in the face of the Appellant’s grant evidenced by Exhibit “P3” and “04”?
2. Whether the 3rd Defendant having not made any claim in his Counter-claim touching on or challenging the revocation of his statutory holding in Plot 256, Utako District, Abuja or proving his title the Court below could resolve the claim of the 3rd Respondent in his Counter-claim on the basis that the Counter claimant’s title was not revoked
3. Whether Exhibits “P6”, “PSi”. and “P10” (Search Reports/File Views) duly admitted in evidence at the trial can be said to be fake or lack probative value because it was not shown that they were applied for by the Appellant and the legal fees paid to obtain them?
4. Whether a document, including a Site Map (Exhibit 07), not signed by any person, in other words not made by any person, is admissible in evidence?
5. Whether because the Court below determined that the title of the 3rd Respondent is prior in time to that of the Appellant relieves the Court of the bounden duty to determine that a document, Exhibit 06 – revocation letter to the Plaintiffs was made or not made lis pendens which issue was properly raised in the Final Argument of the Plaintiff/ Appellant.
F. S. Jimba Esq., in the 1st and 2nd Respondent’s brief of argument raised a sole issue for determination thus:
Whether given the facts and circumstances of this case, the lower Court was right to have entered judgment dismissing the claim of the Appellant and declaring title to Plot No. 256, cadastral Zone BOS, Utako District, Abuja in favour of the 3rd Respondent.
Mallam Mohammed S. Shuaib Esq., in the 3rd Respondent’s brief of argument submitted 4 issues for determination as follows:
a) Whether the learned trial Judge suo motu raised any fresh issue on the basis of which he entered judgment for the 3rd Respondent?
b) Whether in view of the mandatory provisions of Section 28 of the Land Use Act 1978, the Third Respondent’s title in and over the property in dispute can be said to have been revoked having regards to the pleadings and evidence adduced before the lower Court, particularly EXHIBIT D5?
c) Whether EXHIBITS P6, P9, P10 & D7 are weighty or sufficient enough to invalidate the 3rd Respondent’s title over the property in dispute?
d) Whether EXHIBIT D6 was made during the pendency of the case?
I have read carefully the issues formulated by the parties respectively. The Appellants’ 5 issues cover his grouse and will be adequate in the determination of this appeal; however the Appellant’s issues 1, 3 and 4 are interwoven and I chose to resolve the issues as follows:
Issues 1, 3 and 4 as issue 1 thus:
Whether in the circumstance of this case, the trial Court properly evaluated the documentary evidence in the suit.
Issue 2 as issue 2 thus:
Whether the 3rd Defendant having not made any claim in his Counter-claim touching on or challenging the revocation of his statutory holding in Plot 256, Utako District, Abuja or proving his title the Court below could resolve the claim of the 3rd Respondent in his Counter-claim on the basis that the Counter claimant’s title was not revoked
And issue 5 as issue 3 thus:
Whether because the Court below determined that the title of the 3rd Respondent is prior in time to that of the Appellant relieves the Court of the bounden duty to determine that a document, (Exhibit 06 – revocation letter to the Plaintiffs was made or not made lis pendens which issue was properly raised in the Final Argument of the Plaintiff/Appellant.
SUBMISSIONS ON ISSUE 1
Whether in the circumstance of this case, the trial Court rightly admitted and properly evaluated the documentary evidence in the suit.
O. J. Aboje in the Appellant’s brief of argument contended that the trial Court did not evaluate the content of Exhibit D5 which is the Executive summary of the revocation committees’ decision; but only proceeded on the footing that the said Exhibit is irrelevant in the eyes of the law. He relied on the cases of: CHUKWU CONST. CO. LTD V. UWECHIA (2000) 2 NWLR (PT. 643) P. 92 PP. AT 100 PARA A; 102 PARAS B-C ATTAH V. STATE (2009) 15 NWLR (PT. 1164) P. 284 PP 308-309 PARAS. H-A.; EKONG V. OTOP (2014) 11 NWLR (PT. 1419) P. 549 PP AT 573 – 574 PARAS F-A; EYO V. INYANG (2001) 8 NWLR (PT. 715) P 304 PP AT 328 PARA. F.
The learned counsel in support of his argument elaborately demonstrated the content of Exhibit D5 and submitted that as at the date of Exhibit D5 which contained the advice of the 1st and 2nd Respondents’ Revocation Committee, the title of the 3rd Respondent in the disputed Plot was no longer subsisting on the ground that it had been withdrawn by the 1st Respondent and granted to the Appellant on 11th December, 2006 without any complain from the 3rd Respondent who was allocated another plot.
The Appellant’s counsel contended that Exhibits P6, P9 and P10 are original copies of Search Reports/File Views issued by the 1st and 2nd Respondents to the Appellant; he submitted that these Exhibits show that the disputed plot is not encumbered by any other allottee including the 3rd Respondent except the Appellant. He further submitted that the trial Court was wrong to have treated the said Exhibits with a pinch of salt on the reason that there is doubt on the way the documents were generated.
The learned counsel submitted that Exhibit D7 is inadmissible documentary evidence on the ground that same was not signed by any person and as such has no origin as to its maker. He cited the cases of:
OMEGA BANK PIC V. O.B.C LTD (2005) 8 NWLR (PT. 928) P. 547 PP AT 576; JINADU V. ESUROMBI-ARO (2009) 9 NWLR (PT. 1145) P. 55 PP AT 81 PARAS A-C; ABEJE V. APEKE (2013) 43 WRN P. 127 PP 145.
The learned counsel urged the Court to resolve this issue in favour of the Appellant.
The learned counsel for the 1st and 2nd Respondents on this issue submitted that there is no evidence from the record of appeal to show that the Appellant filed a reply on the averments of the 3rd Respondent that his right and interest over the disputed plot of land which was prior to that of the Appellant was never revoked. He added that by the provision of Section 123 of the Evidence Act, 2011, the fact of the non-revocation of the title of the 3rd Respondent over Plot No. 256, Cadastral Zone B05, Utako District, Abuja is deemed admitted, established and requires no further proof. He cited the cases of: ANDONY VS. AYI II & ORS. (2004) ALL FWLR (PT. 227) 444 AT 482, ELENDU VS. EKWOABA (1995) 3 NWLR (PT. 386) 704 AT 747 AND OLALE VS. EKWELENDU (1989) 7 SCNJ (PT. 2) 62 AT 102.
The 1st and 2nd Respondents’ counsel contended that the trial Court was right when it held that lis pendens does not apply to this case in terms of Exhibit D6 because no interest or title was acquired by any person whatsoever in relation to the disputed land by means of Exhibit D6.
Mr. Shuaib in the 3rd Respondent’s brief of argument contended that the trial Court properly evaluated Exhibit D5; he continued that the said Exhibit was not signed or served on the 3rd Respondent contrary to Section 28 (7) of the Land Use Act. He referred the Court to paragraphs 1 and 2 of page 232 of the Record of Appeal and relied on the case of: OMEGA BANK (NIG) PLC V. O.B.C. LTD (2005) LPELR-2636; in arguing the effect of unsigned document. The learned counsel submitted that there is no appeal against the pronouncement of the trial Court that there is no revocation in the mandatory terms of Section 28 of the Land Use Act.
In reply to paragraph 5.04 of the Appellant’s brief of argument, the learned counsel for the 3rd Respondent submitted that the Appellant misconceived the fact in this issue; he added that what should be in contention is not whether the documents are admissible in the light of how they were obtained or whether probative value has been attached to them as argued by the Appellant but rather how much weight was attached to the documents admitted in evidence. He cited the cases of: BURAIMOH V. KARIMU (1999) 9 N.W.L.R. PART 618 AT PAGE 321 PAR F; A.G OYO STATE V. FAIR LAKES HOTELS (NO 2) (1989) 5 N.W.L.R (PART 121) 255 AT 292; ASUQUO V. EYO (2014)5 N.W.L.R (PT. 1400) 247, I.M.B (NIG) LTD V. DABIRI (1998)1 N.W.L.R (PT. 533) 284 in further submitting that the fact that P6, P9 and P10 were admitted in evidence in the proceedings does not mean that such documents must be acted upon or that they must be given the heaviest of weights.
The learned counsel submitted that the trial Court was right and acted within the provisions of Section 34 of the Evidence Act. He urged the Court to dismiss the appeal.
RESOLUTION OF ISSUE 1
The settled principle of law is that evaluation of evidence and ascription of weight thereto remains the province of the trial Court which heard and observed the demeanor of the witnesses and is consequently in a better position to form an opinion as to the credibility of the said witnesses. See: EMMANUEL EGHAREVBA V. FEDERAL REPUBLIC OF NIGERIA & ORS (2016) LPELR-40045 (SC).
It is the contention of the Appellant that Exhibit D7 was not signed; in other words the same was not made by any known person and therefore inadmissible in evidence. On the legal effect of unsigned document, the general rule is that unsigned document is worthless and does not have a legal status. It does not matter whether the document in question was tendered by an alleged maker. The maker who allegedly made a document must sign it for it to be examined by a Court of law. Where a document tendered in evidence as primary evidence is not signed, it cannot be relied upon. See: MR. LABARAN MAKU V. ALHAJI UMARU TANKO AL-MAKURA & ORS (2016) LPELR-48123 (SC); IN OMEGA BANK (NIG.) PLC. V. O.B.C. LTD (2005) ALL FWLR (PT. 249) 1964 AT 1993-1994, (2005) 8 NWLR (PT. 928) 547; GLOBAL SOAP & DETERGENT IND. LTD V. NAFDAC (2011) ALL FWLR (PT. 599) 1025 AT 1047 where the Supreme Court held thus:
“It is my considered view that Exhibit P20 not being a signed document by the maker thereof, has no weight whatsoever.”
Exhibit D7 as seen at page 38 of the records of appeal is an unsigned survey map certified at Abuja Geographic information systems. On the effect of such unsigned survey plan, the Supreme Court in ALHAJI A. ALIYU V. DR JOHN ADEWUNMI SODIPO (1994) LPELR-423 (SC) held as follows:
“The requirements for countersignature relate to matters of evidence and the production of the document in evidence and a non-compliance, at any rate at that stage, with the Survey Act does not render the plan void or useless. I need add that where a plan is tendered per se but does not conform with the requirements of Section 3 (b) of the Survey Law (or Act), it may nevertheless be admitted in evidence “if good cause (is) shown to the Court” for non-compliance.”
The Supreme Court also in ASHAKACEM PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LIMITED (2019) LPELR-46541 (SC) held thus:
“The point has to be made that the requirement of signature is made by the law to determine its origin and authenticity with regard to its maker and so where certain situations exist an unsigned document could be admissible as in this instance where oral evidence clarifying the document and its authorship as in the case at hand thereby rendering such an unsigned document admissible.”
The Survey Act of the FCT in Section 3 (1) (b) provides as follows:
1. No map, plan or diagram of land.
a) …
b) If prepared after 16th May 1918, shall except for good course shown to the Court, be admitted in evidence in any Court unless the map, plan or diagram
i. Has been prepared and signed by a Surveyor or is a copy of a map, plan or diagram so prepared and signed is certified by a surveyor as being a true copy;
And:
ii. Has been examined by the surveyor Department and bears the counter-signature of the Director.
From the authorities referred to above and the Survey Act of the FCT in Section 3 (1) (b); it is the position of the law that the mere fact that a document and a plan as in this case was not signed does not automatically make it inadmissible in law; it is only where there is no shown good course or oral evidence clarifying the document and its authorship that the plan and/or document will be inadmissible in evidence. Consequently, the mere fact that Exhibit D7 was not signed will not outrightly make it inadmissible unless there was no oral evidence clarifying the authorship of Exhibit D7. Exhibit D7, though an unsigned survey map, was certified at Abuja Geographic information systems. This means the 1st and 2nd Respondents by the certification clarified that the referred exhibit emanates from them and is authentic. In the circumstances of the case therefore; the trial Court was right in admitting Exhibit D7 in evidence.
On whether Exhibit P6, P9 and P10 admitted in evidence can be said to lack probative value, for failure to present fees paid to obtain them. There is a difference between the admissibility of a document and the probative value to be attached to it. Admissibility is based on relevance, while probative value depends not only on relevance but also on proof. Evidence is said to have probative value if it tends to prove an issue. See: ACN V. LAMIDO (2012) 8 NWLR (1303) 560; BUHARI V. INEC (2008) 19 NWLR (PT. 1120) 246; BELGORE V. AHMED (2013) 8 NWLR (PT.1355) 60 AT 100 E-F; WIKE EZENWO NYESOM V. HON. (DR.) DAKUKU ADOL PETERSIDE & ORS (2016) LPELR-40036 (SC). In considering the value to be attached to a statement rendered admissible by the Evidence Act, regard must be had, inter alia, to all the circumstances from which any inference can reasonably be drawn to the accuracy or otherwise of the statement. See: BUHARI V. INEC (2008) 19 NWLR (PT. 1120) 246.
The Appellant contended that Exhibits P6, P9 and P10 are original copies of search reports/file views issued by the 1st and 2nd Respondents. The law is settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist. See: Section 131 (1) of the Evidence Act, 2011; SHARING CROSS EDUCATIONAL SERVICES LIMITED V. UMARU ADAMU ENTERPRISES LIMITED & ORS (2020) LPELR-49567(SC); HERITAGE BANK LIMITED V. DON & CHYKE NIGERIA LIMITED & ANOR (2020) LPELR-52423(CA). The 3rd Respondent in his Statement of Defence contested the validity of the referred Exhibits on the ground that they were acquired fraudulently; were not signed and proper procedure was not followed for conducting search at AGIS as prescribed fees was not paid nor formal application made.
Parties to a civil suit have the option of shifting the burden of proof by adducing cogent, concrete and credible evidence to contradict the content of an exhibit. In civil suits, unlike criminal cases, the burden of proof keeps oscillating among the parties. See: UNITY BANK PLC V. COLONEL BELLO MOHAMMED AHMED (RTD) (2019) LPELR-47395(SC); UNIVERSITY OF ILORIN & ORS V. DR (MRS.) AIZE IMONOKHOME OBAYAN (2018) LPELR-43910 (SC).
The burden of proving the legality of the mode of acquisition of Exhibits P6, P9 and P10 swung back to the Appellant to adduce further evidence on the allegation of fraud made by the 3rd Respondent. I agree with the position of the trial Court that the allegation of the 3rd Respondent does not affect the admissibility of Exhibits P6, P9 and P10 but will affect the weight to be attached to the said Exhibits as there is doubt on the authenticity of the documents following the failure of the Appellant to make available application for search and payment of prescribed search fees at AGIS.
On whether the trial Court properly evaluated Exhibit D5; I have painstakingly examined the records of appeal and it is not in dispute that both the Appellant and the 3rd Respondent were allocated the disputed land. It is equally clear that the 3rd Respondent’s title came earlier before that of the Appellant. However, the Appellant’s contention is that Exhibit D5 is a proof that the use of the land in dispute was changed to commercial and therefore means that the 3rd Respondent’s grant over the disputed land was withdrawn/revoked after the use of the plot was changed by the Hon. Minister of FCT.
Section 28 (6) and (7) of the Land Use Act 1978, deals with revocation and it provides as follows:
“(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Subsection (6) of this Section or on such later date as may be stated in the notice.” (underlined emphasis is mine).
The wordings of the above reproduced statute are clear and unambiguous and should be given its plain or ordinary meaning. See: SKYE BANK PLC V. VICTOR ANAEMEM IWU (2017) LPELR-42595 (SC). Flowing from the above Section of the Land Use Act; before a right of occupancy is deemed revoked notice shall be given to the holder of such right. In exercising the Governor’s/Minister’s power of revocation, there must be due compliance with the provisions of the Act, particularly with regard to giving of legal notice of revocation to the holder whose name and address are well known to the public officer acting on behalf of the Governor/Minister. See: NIGERIA TELECOMMUNICATION LTD. V. CHIEF OGUNBIYI (1992) 7 NWLR (PT. 255) 543.
The Appellant placed heavy reliance on Exhibit D5, the said Exhibit is seen at page 38 of the records of appeal and it is the Executive Summary of the Revocation Committee’s decision; in the last paragraph it was resolved thus:
“Plot 256 Utako measuring 5538.57sqm was allocated to Arab Autayada (pl. 20221) on 25/03/2006 for residential development. The allocation for Auta Yadam was replaced with Plot 89 Utako on 07/07/2006 and Plot 255 Utako was then Re allocated to Na’Adade Petroleum limited (misc 85624) on 12/11/2006 for petro filling station. The replacement made to Arab Auta Yadam, Plot 89 Utako is also a plot that has a case of multi allocation (the Festus Porbeni case) which has been resolved by the committee in favour of Abubakar Garba being the first Allottee (on 23/03/2006) Note that the land Use for Plot 256 Utako is Residential before it was changed to Commercial Arab Auta Yadam is requesting that his title to Plot 256 Utako be retained by him.”
Let me state here that Exhibit D5 is not a revocation Notice and did not pretend to be one; it was not issued by or on behalf of the FCT Minister in compliance with Section 28 of the Land Use Act. There is no proof in the record of appeal that revocation Notice was ever issued or served on the 3rd Respondent; Although it is correct that the use of the disputed land was residential when it was allocated to the 3rd Respondent, and was re allocated to the Appellant for commercial use. The question that comes to mind is; can the 1st and 2nd Respondents legally re-allocate land with a subsisting and valid right of occupancy without revocation of the title of the previous holder? I answer the above question in the negative.
Where a right of occupancy is involved, either in the nature of a statutory or customary right of occupancy upon the issuance of a right of occupancy or through a deemed right of occupancy by operation of Sections 34(2) and 36(4) of the Land Use Act, a later grant of a right of occupancy under Section 5 (1) cannot ipso facto, by operation of Section 5 (2) extinguish the earlier right already vested. It will be necessary first to revoke that earlier right of occupancy for overriding public interest or for any of the other reasons as specified under Section 28 of the Land Use Act. See: OLOHUNDE V. ADEYOJU (2000) 10 NWLR (Pt. 676) 562 at 597; ALHAJI AMINU DANTSOHO V. ALHAJI ABUBAKAR MOHAMMED (2003) LPELR-926 (SC).
Although, all land within the FCT can be validly revoked by the Minister of FCT; but such revocation shall be done in compliance with Section 28 of the Land Use Act.
In NIGERIAN ENGINEERING WORKS LTD V. DENAP LTD (2001) 18 NWLR (PT. 746) P. 741, the Supreme Court held that pursuant to Section 44 of the Land Use Act, the requisite notice of revocation shall be effectively and validly served as provided under Section 44 (a)-(e) of the Act, and that failure to serve the same renders any purported revocation null and void. See also: THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GEN, SANNI ABACHA V. EKE-SPIFF (2009) 1 NWLR (PT. 800) P.114; ONONUJU V. A.G. ANAMBRA STATE (1998) 11 NWLR (PT. 573) P. 320-322; CIL RISK & ASSET MANAGEMENT LIMITED V. EKITI STATE GOVERNMENT & ORS (2020) LPELR- 49565 (SC).
In the absence of notice of revocation of the right of occupancy, it follows that the purported revocation of the right of occupancy by the officer duly authorized by the Governor is ineffective. See: A-G BENDEL STATE V. AIDEYAN (1989) 4 NWLR. (PT 118) 645; NIGERIA ENGINEERING WORKS LTD V. DENAP LIMITED (1997) 10 NWLR (PT. 525) 481; USMÄN KAYODE OLOMODA V. MR. OLANIYI MUSTAPHA & ORS (2019) LPELR-46438 (SC).
I have said in this judgment that there is no proof of service of revocation Notice on the 3rd Respondent and that Exhibit D5 does not amount to a revocation Notice. Where there are two contending titles over a plot of land; the Supreme Court in ALHAJI UBAN KARI V. ALHAJI ISA ABBA GANARAM & ORS (1997) LPELR-1666(SC) held that:
“Where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid. The appellant’s right of occupancy subsists up to now as it has not been revoked and the wrongful grant to the 1st Respondent has no effect Whatsoever on its authenticity.”
See also: EMMANUEL ILONA V. SUNDAY IDAKWO & ANOR (2003) LPELR-1496(SC); ORIANZI V. A.G. RIVERS STATE & ORS (2017) LPELR-41737 (SC); DZAWUA V. ANDZA & ORS (2019) LPELR-47619 (CA).
From all I have said so far, I fail to fault the decision of the trial Court; I hold that the trial Court properly evaluated Exhibit D5 and was right in his conclusion on this issue. I resolve this issue in favour of the Respondents and against the Appellant.
SUBMISSIONS ON ISSUE 2
Whether the 3rd Defendant having not made any claim in his Counter-claim touching on or challenging the revocation of his statutory holding in Plot 256, Utako District, Abuja or proving his title the Court below could resolve the claim of the 3rd Respondent in his Counter-claim on the basis that the Counter claimant’s title was not revoked.
The learned counsel for the Appellant contended that the 3rd Respondent did not claim any relief in respect of the matters contained in Exhibit D5 touching on the earlier withdrawal/revocation of his title before the grant of the same plot to the Appellant. He went on to say that the Court below dealt with the illegality of the Appellant’s grant while, that of the 3rd Respondent is prior in time without evaluating whether the 3rd Respondent as a Defendant/Counter-claimant in the action discharged the burden of proof as a Claimant in the action. He submitted that the trial Court did not evaluate the documents tendered by both the 3rd Respondent on one side and the 1st and 2nd Respondents on the other side yet granted 3rd Respondent’s reliefs in its Counter-Claim without the 3rd Respondent discharging the burden of proof of his Counter-claim for title to land. He urged the Court to resolve this issue in favour of the Appellant.
The 1st and 2nd Respondents’ counsel on this issue submitted that the burden is on the Appellant to prove that the title of the 3rd Respondent was not only revoked but validly revoked in accordance with the law. He added that the contention by the 3rd Respondent that an Offer of Grant of Statutory Right of Occupancy over Plot No. 256, Cadastral Zone B05, Utako District, Abuja was made to him on 25th March, 2006 and since a statutory right of occupancy has a lifespan of ninety-nine (99) years, there is a presumption that a grant made in March, 2006 is still in existence. It is for a party contending otherwise such as the Appellant herein to rebut such presumption which the Appellant failed to do in this case.
The learned counsel contended that in paragraph 3.10 at page 11 of the Appellant’s Brief of Argument it was argued by the Appellant that “it would then seem to appear that the Court below decided the fate of the action on the basis of priority and not on revocation because no revocation letter was tendered by any of the parties showing that the 3rd Respondent’s grant to the plot was revoked before same was allocated to the Appellant”; he submitted that the Appellant clearly conceded and acknowledged that there was no revocation in respect of the disputed land.
The learned counsel submitted that the Appellant is disentitled to rely on Exhibit D5 which is the report of a ministerial review committee in a bid to establish title to Plot 256, Cadastral Zone B05, Utako District, Abuja because he had contended that the plot is not subject to any ministerial review in its paragraph 11 of the Statement of Claim.
The 1st and 2nd Respondents’ counsel contrary to the argument in issue two of the Appellant’s brief of argument that the 3rd Respondent did not make any claim in his counter-claim touching on or challenging the revocation of his statutory holding of Plot 256, Cadastral Zone B05, Utako District, Abuja. He argued that the record shows clearly that the 3rd Respondent pleaded the same at paragraph 4 of his statement of defence and paragraph 2 of his counter-claim. See: Pages 88 and 91 respectively of the record of appeal.
The 3rd Respondent’s counsel on the other hand argued that his title to the property in dispute was never revoked as at the time the 1st Respondent purported to have granted the Appellant title to the property in dispute on 11th December, 2006.
He argued in line with the submissions of the 1st and 2nd Respondents that the Appellant has misconceived the issue herein. The learned counsel submitted that from the pleadings and evidence adduced before the lower Court, his title to the property, which is earlier in time to that of the Appellant has not been shown to have been revoked. He relied on the decision of the Court in: GEGE V. NANDE (2006) 10 NWLR (PT. 988) 256 AT 284 PARAGRAPHS F-G; IBRAHIM V. MOHAMMED (2003) 6 NWLR (PT. 817) 615; NIGERIA ENGINEERING WORKS LTD V. DENAP (2001) 18 NWLR (PT. 746) 726; UGO V. OBIEKWE (1989) 1 NWLR (PT. 99) 566. He further submitted that a Right of Occupancy cannot be revoked without the service of a revocation notice and that there is no evidence to show that any revocation notice has been served on the 3rd Respondent. He referred to Section 28 of the Land Use Act and the cases of: NIGERIAN ENGINEERING WORKS V. DENAP (SUPRA) AT 757 PARAGRAPHS E-G AND ALSO THE CASE OF OTO V. ADOJO (2003) 7 NWLR (PT. 820) 636 AT 666-667.
He urged the Court to hold that without service of the revocation notice on the 3rd Respondent, his title cannot be said to have been extinguished.
RESOLUTION OF ISSUE 2
On whether the 3rd Respondent having not made any claim in his Counter-claim touching on or challenging the revocation of his statutory holding in Plot 256, Utako District, Abuja or proving his title, the Court below could resolve the claim of the 3rd Respondent in his Counter-claim on the basis that the Counter claimant’s title was not revoked.
I have held in issue one above that where there is a subsisting right of occupancy as in the instant case at hand, it is good against any other right. The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid. The effect of failure to revoke the 3rd Respondent’s title to the disputed land, means that he is still the only valid and subsisting title holder over the said land until the same is revoked in full compliance with Section 28 of the Land Use Act.
What I am trying to say in essence is that, the Appellant cannot be said to have a valid title to the disputed land until the 3rd Respondent’s title is validly revoked. Having held in issue 1 above that the 3rd Respondent is still the valid and subsisting title holder to the disputed land, it simply means that the reallocation of the land to the Appellant is only a mirage and of no effect. See: ORIANZI V. A.G. RIVERS STATE & ORS (supra).
I agree with the decision of the trial Court that nothing was taken from the 3rd Respondent as the 1st and 2nd Respondents as at the time of allocating the disputed land to the Appellant had no title to confer on the Appellant, the same having been earlier conferred on the 3rd Respondent without prove of any revocation. Accordingly, in the Counter-claim, there was nothing for the 3rd Respondent to prove when there is no dispute that he was earlier in time granted the land in dispute and the said allocation was not at any time revoked in line with Section 28 of the Land Use Act except for the Land Revocation Committee’s recommendation in Exhibit D5 which I have agreed with the learned trial Judge does not amount to revocation of 3rd Respondent’s land.
For what I have said above, I resolve this issue in favour of the Respondents and against the Appellant.
SUBMISSIONS ON ISSUE 3
Whether because the Court below determined that the title of the 3rd Respondent is prior in time to that of the Appellant relieves the Court of the bounden duty to determine that a document, (Exhibit 06 – revocation letter to the Plaintiffs was made or not made lis pendens which issue was properly raised in the Final Argument of the Plaintiff/AppeIIant.
The learned counsel for the Appellant on this issue noted Exhibits P6, P9, and P10 which are Search Reports/File Views issued by the 1st and 2nd Respondents to the Appellant to show that the disputed plot is not encumbered by any other allottee including the 3rd Respondent except the holding of the Appellant on the Plot.
The learned counsel contended that the trial Court failed to make pronouncement on the Appellant’s objection that Exhibit D6 was made lis pendens and as such of no effect.
The learned counsel for the 1st and 2nd Respondents on this issue contended that the trial Court was right to hold that lis pendens does not apply to this case in terms of Exhibit D6 because no interest or title was acquired by any person whatsoever in relation to the disputed land by means of Exhibit D6. He continued that Exhibit D6 is irrelevant and immaterial to the determination of the real issue in this appeal and that the argument on whether the doctrine of lis pendens or a document made while proceedings are pending is of no moment in this appeal.
The 3rd Respondent’s counsel on this issue submitted that Exhibit D6 could not have been made during the pendency of the action and even if it was so made, it did not affect the findings of the lower Court that the 3rd Respondent’s title was earlier in time. He added that the said Exhibit was made on 26th September, 2008 that is about 2 months before the filing of the suit and was served on the Appellant on December 2008, a month after the filing of the action.
The learned counsel submitted that the Appellant’s issue 5 is a mere academic exercise.
Let me quickly state here that I have read and taken note of the arguments contained in the Appellant’s reply brief of argument to the 1st and 2nd Respondents’ and 3rd Respondent’s briefs of arguments respectively; I shall refer to them in the course of resolution of the appeal when necessary.
RESOLUTION OF ISSUE 3
On whether Exhibit 06 which is a revocation letter to the Appellant was made or not made lis pendens. By virtue of my decision in issues 1 and 2 of this judgment, whether or not the Appellants title was revoked or not has become a mere academic exercise. I have already made pronouncement on the title of the disputed land which is to the effect that the 3rd Respondent remains the valid and subsisting title holder of the subject matter of this appeal.
An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. See: DELE MOSES & ANOR V. HON. VICTOR GIADOM & ORS (2021) LPELR- 55887(SC); AGBAKOBA V. INEC (2008) 18 NWLR (PT. 1119) 489; ADEOGUN V. FASHOGBON (2008) 17 NWLR (PT. 1115) 149 SC; DR UMAR ARDO V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. (2017) LPELR-41919(SC); IJAODOLA V. UNILORIN GOVERNING COUNCIL (2018) 14 NWLR (PT. 1638) 32 AT 54, PARAS. D-E; ABRAHAM V. AKEREDOLU (2018) 10 NWLR (PT. 1628) 592 AT 595, PARAS. G-H; MR. BABAJIDE SANWO-OLU & ANOR V. PRINCE (PROF.) IFAGBEMI AWAMARIDI & ORS (2019) LPELR-50828 (SC).
In all, I hold that the appeal lacks merit and the same is hereby dismissed. The judgment of the High Court of the Federal Capital Territory, Abuja delivered by L. H. Gummi (RTD CJ) on 13th December, 2011 in SUIT NO: FCT/HC/CV/363/2008 is hereby upheld.
I make no order as to costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, UCHECHUCKWU ONYEMENAM, JCA.
I agree that the appeal is devoid of merit and I also dismiss it.
I abide by all the orders made by my learned brother, including the order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, UCHECHUKWU ONYEMENAM, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is accordingly dismissed.
No order as to costs.
Appearances:
O.J. ABOJE, with him, T.A. OSAJI For Appellant(s)
F.S. JIMBA, with him, B.W. SEKPE and FRANK ACHILIKE – for 1st and 2nd Respondents
MALLAM MOHAMMED SHUAIB, with him, E.F. ABAH – for 3rd Respondent For Respondent(s)