TONADE BUSINESS ENTERPRISES LIMITED & ANOR v. PRESIDENT INDUSTRIES LIMITED & ANOR
(2016)LCN/8492(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of December, 2016
CA/A/301/2009
RATIO
LAND LAW: GROUNDS FOR REVOCATION OF RIGHT OF OCCUPANCY
Now, the fundamental and relevant question to ask is whether the notice of revocation of the plot in dispute by the 2nd respondent was properly communicated and served on the 1st respondent. Section 28(7) of the Land use Act provides –
“The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Subsection (5) or on such later date as may be stated in the notice.” Now, was the revocation of the plot in dispute, by the 2nd respondent, valid? Was the revocation properly communicated and served on the 1st respondent? Section 28(5) of the Land Use Act states the grounds upon which a statutory right of occupancy may be revoked. They are –
(a) a breach of any of the provisions which a certificate of occupancy is by Section 10 deemed to contain;
(b) a breach of any term contained in the certificate of occupancy or in any special contract made under Section 8;
(c) a refusal or a neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under Subsection (3) of Section 10. PER ABUBAKAR DATTI YAHAYA, J.C.A.
APPEAL: DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND CIRCUMSTANCES THE APPELLATE WILL INTERFERE WITH THE DUTY
It is an established principle of law, that it is the trial Court that is vested with the preserve of evaluating and appraising evidence, because it had the singular advantage of seeing, hearing and watching the demeanour of witnesses giving evidence before it. Once it carries out this onerous duty successfully, an Appellate Court has no business disturbing the findings and conclusions reached. It can only interfere, if the findings are perverse. See ENANG v. ADU (1981) 11-12 SC 25; WOLUCHEM v. GUDU (1981) 5 SC. 291 and BABA v. N.C.A. (1991) 5 NWLR (Pt. 192) 388. PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
Between
1. TONADE BUSINESS ENTERPRISES LIMITED
2. MRS. TAYO OYINDASHOLA
(Trading under the name and style of Tonade Business Enterprises) Appellant(s)
AND
1. PRESIDENT INDUSTRIES LIMITED
2. THE HONOURABLE MINISTER FEDERAL CAPITAL TERRITORY Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal from the decision of the High Court of the Federal Capital Territory Abuja delivered on the 23rd of October, 2007. The Writ of Summons was taken out of the High Court of the FCT on the 27th of July, 1999 by the Plaintiff who is the Appellant in this Appeal in respect of Plot No. 296, Central Business District, Cadastral Zone AO, Abuja. The plaintiffs’ claim from the defendant is for:-
1. A declaration that the purported revocation of the 2nd Plaintiffs Certificate of Occupancy No. FCT/ABU/MISC.14580 dated 3rd July 1998 by the 2nd Defendant through a letter dated 8th of July, 1999 in respect of the said plot is null and void and of no effect in that (a) as at the time of the said revocation, the same plot was a subject of litigation in Suit No. FCT/HC/CV/371/98 and (b) no notice of revocation was given or served on in accordance with the provisions of the Land Use Act.
2. A declaration that the Plaintiffs are the legal and beneficial owners of Plot 296 measuring 6650.73 square meters, cadastral zone AO, Central Business District Abuja covered by
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certificate of Occupancy No. FCT/ABU/MISC.14580 of 3/7/98.
3. A declaration that any right or interest at all of the 1st Defendant over the said property became extinguished upon the revocation by the 2nd Defendant on 6th September, 1997 and re-allocation of the same to the plaintiff on 3rd July, 1998.
4. An order setting aside the purported revocation of the plaintiffs Certificate of Occupancy No. FCT/ABU/MISC.14580 dated 3/7/98 through the 2nd Defendants letter dated 8th July 1999 with reference number MFCT/LA/MISC.14580 on grounds stated in relief one above.
5. An order setting aside the letter of reinstatement dated 8th July, 1999 with Reference No. MFCT/LA/85/MISC.4215 in favour of the 1st Defendant because it was made at a time when litigation was pending and when the right of the plaintiffs were still subsisting.
6. An order of perpetual injunction restraining the Defendants, either by themselves, their servants, agents, or privies from entering into the said Plot No. 296 Cadastral Zone AO, Central Business District Abuja or doing anything respecting the same which is or may be prejudicial to the Plaintiff’ rights and interests over
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the said plot of land.
7. The sum of Sixty million Naira for general and special damages viz:
i. General Damages – N50,000,000.00
ii. Special damages – N10,000,000.00
Particulars of special damages:
i. Differentiation of cost of construction between 1998 and 2001- N9,000,000.00
ii. Cost of hiring professionals – N1,000,000.00
The Plaintiffs’ claim is based on their position that the plot of land in dispute was allocated by the 2nd Respondent to the 1st Respondent in 1982 and subsequently issued a certificate of occupancy dated 13th of December, 1989, The 2nd Respondent thereafter in exercise of its powers under Section 28(5) of the Land Use Act revoked the 1st Respondent’s right of occupancy on the 6th of June 1997 for failure to develop the plot within two years from the date of the Certificate of Occupancy which is a breach of a fundamental term of the grant of the Certificate of Occupancy. The 2nd Appellant applied to the 2nd respondent for a grant of right of occupancy over a parcel of land to which the 2nd Respondent granted her a right of occupancy over the plot and issued a certificate of occupancy dated 3rd of
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July, 1998.
When the Appellants commenced development of the plot, the 1st respondent sued for trespass to land and obtained interim injunction restraining the Appellants from continuing with the development pending the determination of the suit. The 1st Respondent was subsequently issued a letter by the 2nd respondent re-instating the 1st respondents revoked right of occupancy and another letter issued to the 2nd Appellant revoking the right of occupancy granted to her. This then prompted the withdrawal of the case it instituted.
The Appellants being dissatisfied with this development instituted another action at the High Court which has led to this appeal with suit no. FCT/HC/CV/480/99.
The matter went to trial and at the end, the trial Court delivered judgment dismissing the claim in its entirety because the appellants as Plaintiffs at the High Court failed to discharge the onus of proving their claim against the 1st Respondent. The plaintiffs being dissatisfied with the judgment, appealed to this Court.
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The Appellants’ brief was settled by Mr. L. O. C. Chukwu and it was filed on the 19th of May, 2010 but deemed filed on the
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21st of March, 2011. In it, six issues were identified as follows:
1. Whether having regards to the pleadings and evidence before him, the learned trial judge was right in holding that the revocation of the 1st respondent’s right of occupancy by the 2nd respondent was null and void.
2. Whether the learned trial judge was right in holding that the reinstatement of the 1st respondent’s revoked right of occupancy by the 2nd respondent was valid and lawful.
3. Whether the learned trial judge was right in holding that at the time of allocating the plot in dispute to the 2nd appellant the 2nd respondent lacked the competence to do so on the ground that the right of occupancy of the 1st respondent was not extinguished.
4. Whether the learned trial Judge was right in failing to declare that the 2nd respondent’s purported revocation of the 2nd Appellant’s right of occupancy over the plot was unlawful, null and void and in failing to set aside the purported revocation.
5. Whether the learned trial judge was right in making a declaration in favour of the 1st Respondent to the effect that the 2nd Respondent’s revocation of the 1st Respondent’s
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right of occupancy was null and void and of no legal consequences, when the 1st Respondent did not counter-claim for such a declaration nor did it join issues with the 2nd Respondent who was a co-defendant in the suit.
6. Whether the learned trial judge was right in holding that the appellants failed to discharge the onus of proving their case as against the 1st respondent and in dismissing the entire appellants’ claim as against the 2nd respondent.
Mr. Sardauna Ahmed Obande filed the 1st Respondent’s brief of argument on the 30th of April, 2015 wherein two issues for determination were distilled as follows:
1. Whether the purported Notice of Revocation of the title issued to the 1st Respondent was lawful and therefore validly extinguished its title.
2. Whether having regards to the general circumstance of the case, the declaration of title in favour of the 1st Respondent was lawful and proper.
Mr. Baba-Panya Musa filed the 2nd Respondent’s brief on the 15th of July, 2013. In his brief he identified two issues for determination:
1. Whether an Appellate Court would interfere with the findings of facts at a trial Court.<br< p=””
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2. Whether the title of the 1st Respondent was validly extinguished by the purported “notice of revocation” issued by the 2nd respondent and if not, what legal consequences thereof?
The issues raised by the parties to this appeal are similar. As such, I shall be utilizing issues 1-4 formulated by the Appellants in resolving this appeal.
ISSUES ONE AND FIVE
1. Whether having regards to the pleadings and evidence before him, the learned trial judge was right in holding that the revocation of the 1st respondent’s right of occupancy by the 2nd respondent was null and void.
5. Whether the learned trial judge was right in making a declaration in favour of the 1st Respondent to the effect that the 2nd Respondent’s revocation of the 1st Respondent’s right of occupancy was null and void and of no legal consequences, when the 1st Respondent did not counter-claim for such a declaration nor did he join issues with the 2nd Respondent who was a co-defendant in the suit.
?Learned counsel for the appellants faulted the position taken by the trial Court that the revocation of the 1st Respondent’s Right of Occupancy by the 2nd respondent was
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null and void for reason of failing to take onto consideration oral and documentary evidence. He referred to the evidence given by PW3 and PW5, both employees of the 2nd Respondent at the material time. They gave evidence to the fact that the notice of revocation was served on the 1st respondent by registered post on the 20th of October, 1997 (pages 375 and 384 of the record of appeal). He also referred to Exhibit 8 which is the dispatch register wherein the letter of revocation was registered. Counsel argued that had the trial judge considered this vital evidence, he ought not to have arrived at the conclusion that the revocation of the 1st respondent’s right of occupancy was not communicated.
Counsel submitted also that the reliance by the 1st and 2nd respondents on the letter of reinstatement dated 8th of July, 1999 as the instrument that revived the first respondent’s title to the plot speaks for itself. This is because the reinstatement presupposes that there was indeed a revocation of a right to be reinstated, and the revocation was communicated to the 1st respondent. Referring to the statements in the content of the letter learned counsel was of
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the opinion that those statements of facts contained in the letter constitute an admission against both respondents by virtue of Sections 20(3)(b) and 22 of the Evidence Act now Sections 21, 22 and 23 of the Evidence Act, 2011 (As Amended). He added that the respondents are bound by the representations of facts as contained in the letter of reinstatement and are therefore estopped from asserting an inconsistent position afterwards.
Learned counsel argued that there are other facts which corroborate the evidence that the notice of revocation was served on the 1st respondent. First he mentions the fact that one month after the date when the revocation was said to have been served on the 1st respondent by the 2nd respondent, the former paid for and obtained building plan approval and attempted to commence development on the plot. Secondly, the fact that the 1st respondent didn’t join the 2nd respondent in Suit No: FCT/HC/CV/371/98 wherein the 1st respondent could have challenged the revocation in Court if it had believed that the said revocation was unlawful. Referring to the testimony of DW1 wherein he said that the 1s defendant had no cause of action
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against the 2nd defendant. This, counsel believed was because the revocation was properly done.
Counsel submitted that the second reason given by the learned trial judge for nullifying the revocation i.e. because the plot was in a non-serviced area was arrived at because the trial judge failed to evaluate the evidence adduced before him and completely ignored the submissions of the learned counsel for the plaintiffs in his final address which showed that the plot had at all material times been in a serviced area.
Learned counsel for the appellants argued that the absence of the report of a committee set up to review the matter of revocation of the 1st Respondent’s right of occupancy showed that the testimony of DW2 is one not to be relied upon as he did not establish by credible evidence that there was a committee whose report he relied on in making his assertions. Relying on the case of KOFFI GBAJOR v. JAMES OGUNBUREGUI (1961) ALL NLR 853 RATIO 5 counsel added that even if there was such a report as alleged, the Court cannot speculate on the contents of a document which was not placed before it nor can oral evidence of the contents of a
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document not tendered in evidence be allowed. Learned counsel further argued that in the plaintiffs’ final written address, he urged the Court to take judicial notice of the fact that the plot was in a serviced area as it was sharing a common boundary with a popular shopping complex and is lying in the intersection of two roads, namely Muhammadu Buhari Road and Samuel Adesoji Ademolegun street a few meter away from the Abuja central mosque. This he argued the trial Court failed to do, thereby violating the principle established by the Supreme Court in the case of MOGAJI & ORS v. ODOFIN & ORS (1978) 3 SC 91 @ 95.
Counsel to the appellants also submitted that the trial Court should have visited the locus in quo when he was met with the decision of whether or not the plot was in a serviced area. He cited the case of SEISMOGRAPH SERVICE (NIG.) LTD v. AKPORUOVO (1974) 6 SC 119 @ 128 where the Supreme Court per Sowemini, JSC had this to say:
“At this stage, the learned judge was faced with two conflicting evidence as to whether or not the buildings were standing. The trial judge could have resolved the conflict by a visit to the site at Umole
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village? It is absolutely necessary we wish to emphasis, that in view of conflicts, the issue can only be resolved in this case by a visit to the scene. See Section 76(a) of the Evidence Act Cap 62 [now S. 77(a) of Cap E14, LFN 2004] and in particular, the second proviso to that section.”
In arguing that the 1st respondent did not file any counter claim or cross-action at the lower Court neither did he join issues with the 2nd respondent who was a co-defendant in the suit, counsel asked on what basis the learned trial judge made the declaration in favour of the first respondent to the effect that the 2nd respondent’s revocation of its right of occupancy was null and void when it did not challenge the 2nd respondent act of revocation and did not counter-claim against the appellants. Citing the case of EKPEYONG v. NYONG (1975) 2 SC 654 @ 73-74 where the Supreme Court stated that a trial Court should not make an order or a declaration not properly claimed by the parties, otherwise it would be going beyond its jurisdiction They urged us to resolve these issues in their favour.
Learned counsel for the 1st Respondent submitted relying on
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Sections 28 and 44 of the Land Use Act and the case of S. O. ADOLE v. BB GWAR (2008) 11 NWLR (Pt. 99) 562 SC that a notice of revocation must be given to the holder of a vested right before such right can be revoked. Such notice must be in accordance with Section 44 of the Land Use Act. And that it is only where such proper and adequate notice is given to the holder of the right of occupancy as stated that such right will be extinguished on receipt of such notice. He further argued that the appellant’s case is to the effect that the trial Judge misdirected himself on the two reasons proffered by him for declaring the revocation of the 1st Respondent’s Right of Occupancy null and void which were not borne out of the evidence before him. This is so as the crux of the appellant’s case is the “uncontroverted evidence” of PW3 and PW5 that the notice was duly served on the 1st respondent by post on the 20/10/97. Proof of this according to the appellant is Exhibit 8, a dispatch register where the revocation letter was registered in the 2nd Respondent’s office.
The 1st Respondent urged this honourable Court to hold that the Appellants position on their
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argument is erroneous and misleading as the trial judge’s decision was in line with the provision of the law and the principles established by the Court. He argued that going by the evidence given by PW3 and PW5 it is clear that the provisions of the Law i.e. Sections 28(6) and (7) and 44 of the Land Use Act were not complied with. He added that none of the evidence of PW3 and PW5 relied upon by the Appellants was to the effect that the notice was delivered to the secretary or clerk of the 1st Respondent at its registered office, principal office, or sent by prepaid registered letter and addressed to the secretary or clerk of the 1st Respondent. From the provisions of Sub-section 7 of the Land Use Act, the 1st respondent argued that the title of the holder of the right of occupancy shall be extinguished on receipt of him of a notice. Relying on the case of TABIK INVESTMENT v. G.T.B. (2011) NSCQR 46 (Pt. II) 648 @ 660 where the Supreme Court in interpreting the word ‘shall’ held that it connotes mandatory discharge of a duty or obligation, and when the word is used in respect of a provision of the law, that requirement must be met.
In response to the
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argument of the appellants wherein they argued that the reasons proffered by the learned trial Judge in coming to the conclusion that the purported revocation of the 1st Respondent’s title by the 2nd respondent was null and void, are not borne out of the evidence before him. Learned counsel submitted that though PW3 and PW5 both employees of the 2nd Respondent testified that the notice was served on the 1st respondent by post, there is nowhere on the record that the purported notice was received by the 1st Respondent as contemplated by law under Section 28(7) of the Land Use Act. And what the Act contemplated was prepaid registered letter and not post.
They added that DW1 testified that he never received any letter of revocation of the certificate of occupancy from the 2nd respondent. Counsel went on to define the meaning of receipt according to the online Dictionary of Law as meaning an acknowledgement in writing that the party giving same has received from the person therein named, the money or thing therein specified.
Learned counsel further argued that the argument of the Appellants that the learned trial judge erred in law when he
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pronounced that the 2nd Respondent’s letter reinstating the title of the 1st respondent was valid and lawful is predicated on the assumption that there was a revocation in the first place. They urged this Court to discountenance this position as misleading and erroneous whilst upholding the decision and reasoning of the learned trial judge. They added that the letter could be seen as one conveying the fact of the existence of the title of the 1st respondent by the 2nd respondent as a mere reaffirmation of what already subsists since the trial judge has found the revocation of the 1st respondents title by the 2nd respondent to be null and void ab-initio. This they argued is in tandem with the equitable principle of “nemo dat quod non habet” as one cannot convey what he does not have ?
DANTSOHO v. MOHAMMED (2003) 8 NWLR 457 SC.
On the appellant’s contention that the learned trial judge’s findings were perverse and against the weight of evidence as regards the fact as to whether or not the plot was serviced and its relevance to the determination of the validity of the revocation of the 1st respondent’s title, the 1st respondent drew the
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attention of this Court to the fact that the learned trial judge made categorical finding of fact that the plot was not serviced by necessary infrastructure as to enable the 1st respondent commence development within 2 years after the issuance of the Certificate of Occupancy. Counsel urged us to discountenance this contention.
He finally submitted that the appellant’s reference to the trial judge’s refusal to take judicial notice of the submission in their address, that the plot was serviced, is unfounded as Courts are not compelled to accept presumption of facts but only of law. He made reference to the words of Tobi, JSC in C.S.S. BOOKSHOP LTD v. REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE where he said:
“Above a revocation must comply strictly with the provisions of Section 28 of the Act. Any non-compliance will result in the revaluation a nullity” (pp. 53 Para B-C).”
He urged this honourable Court to resolve these issues in favour of the respondents.
Counsel for the 2nd respondent drew the Court’s attention to the cases of WOLUCHEM v. GUDI (2004) 3 WRN 20; ANYEGWU v. ONUCHE (2009) 11 WRN 1 AND DOHERTY v. DOHERTY
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(2009) 30 WRN 96 where it was held that the appellate Court would not interfere with the findings of facts of the trial Court. This as more so where the Appellate Court is called upon to evaluate the credibility of witnesses which it had no opportunity to see, hear and observe their demeanour. He argued that the amended/additional ground 9 of the appellants, notice is premised on ‘misdirection on the facts’ (sic) by the trial Court, and the supporting particulars, especially paragraph f.
Learned counsel to the 2nd respondent went on to enumerate what he considers the critical issues founded by the trial Court which the appellants want overturned. They are:
1. The finding that the 2nd defendant/respondent in deemed capacity of a Governor has powers to allocate and revoke title in pursuance to the extant provisions of the Land Use Act.
2. The finding of fact that the locus situs was not serviced by necessary infrastructure as to facilitate development within 2 years of grant of Certificate of Occupancy.
3. The finding to the effect that the condition to develop as contemplated in compliance with the terms of the grant is predicated on the
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availability of necessary infrastructure such as good roads, drainages, sewage, water, light etc.
4. The finding of fact that although a notice of revocation of the 1st Respondent’s title issued by the 2nd respondent, it was not properly communicated to the 1st respondent in line with the mandatory requirement of Section 28(7) of the Land Use Act which prescribes receipt (physical possession or delivery) of the said notice.
5. The finding that the revocation of the 1st respondent’s title was erroneously done and as such the reallocation to the appellants was incompetent, null and void.
6. The finding that the re-instatement of the 1st respondent’s title was actually just a re-affirmation of the title.
7. The finding that the Plaintiff had failed to prove their claims on the preponderance of evidence.
Learned counsel to the 2nd respondent further argued that the Learned counsel to the appellants had asserted that the locus situs of the land in dispute was properly serviced and failed to lead credible evidence whether oral or documentary to prove this assertion. Meanwhile, there was ample evidence of witnesses i.e. PW6, DW1 and DW2
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which was corroborated by the 2nd defendant’s admission to the effect that investigation carried out in pursuance to the 1st Respondent’s claim show that the said locus situs was not duly serviced. This according to counsel meant that the reasons earlier canvassed for the purported revocation were erroneous Citing Section 131(1-2) of the Evidence Act counsel further argued that the counsel to the appellants had forgotten the basic rudiments of law i.e. he who asserts must prove. And having failed to prove, called on the trial Court to take judicial notice of the fact that the locus situs was in Phase I Central Business District Abuja which was notoriously known to be fully serviced with infrastructure. He added that the Court is not compelled to accept judicial notice of facts which arc reputable presumptions. Only presumptions of law are compelling on the Court.
Referring to the fact that the 2nd respondent did not counter-claim for an order and the learned trial judge made a declaratory order in favour of the 2nd Defendant/respondent, counsel to the 2nd respondent submitted that counsel to the appellant did not avert his mind to the principle
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pertaining to the inherent powers of the Court. He added that the Court being a Court of law and justice has the primary function of doing justice at all times and accordingly can do all that is necessary to achieve such an end. Counsel urged us to resolve the issues in favour of the respondents.
Now, the fundamental and relevant question to ask is whether the notice of revocation of the plot in dispute by the 2nd respondent was properly communicated and served on the 1st respondent. Section 28(7) of the Land use Act provides –
“The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Subsection (5) or on such later date as may be stated in the notice.” Now, was the revocation of the plot in dispute, by the 2nd respondent, valid? Was the revocation properly communicated and served on the 1st respondent? Section 28(5) of the Land Use Act states the grounds upon which a statutory right of occupancy may be revoked. They are – (a) a breach of any of the provisions which a certificate of occupancy is by Section 10 deemed to contain;
(b) a breach of any term contained in the
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certificate of occupancy or in any special contract made under Section 8;
(c) a refusal or a neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under Subsection (3) of Section 10.
The position of the appellants at the trial Court is that the 1st respondent was expected to develop the plot in question, within two years from the date of the certificate of occupancy, but that he had failed to do so, eight years afterwards. This, in their view, justified the revocation, since he violated a term contained in the certificate of occupancy. The respondents contend by stating that it was not possible to develop the plot in question because there was no infrastructure in terms of access roads, water, light e.t.c.
The position of the respondents is rooted on the evidence led before the trial Court. At page 389 of the record of appeal PW6, who was the appellants’ witness, under cross-examination, stated that –
“A precondition for the development of any plot in the F.C.T., is that there must be approved building plan, in addition to having C.F.O. and the fact that
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it is serviced area….”
PW6 was an officer of the 2nd respondent and was working in the Development control office. He told the Court that his office was usually notified, if there was any revocation of a plot. His testimony categorically shows that without the necessary infrastructure (services) development of a plot cannot be undertaken. It is not controverted that it is the 2nd respondent that is responsible for providing the infrastructure.
As to whether there was infrastructure on the plot in question, the testimony of David Simon, a witness for the appellants, is of no use, since at page 401 of the record of appeal, he stated that he was “never physically at the location of the property in question.” But the evidence of DW1 at page 410 of the record is clear and direct on the point. He stated that the 1st respondent processed a building plan but “no works could be embarked upon at the site because of absence of infrastructural facilities.” This witness at page 414 stated that it was in fact the 1st respondent that constructed an access road at the site. This shows its willingness and disposition to develop the land in question. Even
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under cross-examination at page 426 of the record, this witness maintained that as at 1997 when this matter started, the plot was still not serviced with infrastructure.
In the face of these pieces of evidence, the trial judge made a finding at pages 453-454 that –
“? both the 1st Defendant and 2nd Defendant (office of the Minister) contended that the area of land was not served with facilities such as roads, water, light e.t.c. that could make room for the development of the area. This in my view shows that the 2nd Defendant has acknowledged the fact that there is a corresponding duty on the part of the granting authority of the Right of Occupancy…. In other word, the duty to develop the land within the stipulated time it made conditional to the provisions of such services as co-numerated above.”
He then held at page 455 that –
“It is therefore my firm belief that in the circumstances the revocation 1st Defendant’s right of occupancy, especially taking into consideration of the non-service of the plot by 2nd Defendant and failure to have communicated the fact of the revocation combined, makes the revocation null and void and
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of no legal consequences. There was no compliance with the Act which authorized the revocation.”
As regards service of the revocation notice on the 1st respondent, DW1 at page 414 of the record stated categorically, that the 1st respondent was not served with any notice of revocation of the plot in question.
Learned counsel for the appellants argued that because the 1st respondent had applied, one month after the service of notice of revocation on him, for, and obtained building approval to develop the plot in question, that shows that he was served with the revocation notice. This cannot be logically and reasonably be correct. In my view, when the 1st respondent applied for building approval, that is a clear indication that he did not know and had not been served with the notice of revocation. If he had been served, he would not have sought for approval to build what had been revoked. Further, if there was revocation, the authorities that approved the building plan, who are officers of the 2nd respondent and who would normally be informed of the revocation as PW6 stated, would not have approved the building plan for the 1st respondent in
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respect of the revoked plot.
Again, on the appellant’s argument that the 1st respondent instituted Suit No. FCT/HC/CV/371/98 and did not join the 2nd respondent, in my view, that shows that he was not aware of any revocation of the plot lf he was, he would have filed an action to challenge it, not file an action against the appellants for trespass The institution of that action, therefore shows that no revocation notice was served on him and still had title in the plot in question as against the appellants who were trespassers on the plot.
On non-visit to the locus in quo raised by counsel for the appellants, the case of SEISMOGRAPH (NIG) LTD v. AKPORUOVO (supra), is not applicable here because in that case, it was a question of whether or not the buildings were standing at that material time. In the instant appeal, the issue of serviced area related to a point earlier in time, than the time the trial Court was hearing the case. In other words, a visit to the locus in quo at the time of the trial, by the Court, would not have revealed when the services were provided, if they were at all, and whether the plot in question was similarly serviced
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at the time. So a visit to the locus in quo was not necessary especially in view of the evidence led before the Court that the plot was not serviced with infrastructure, and it believed that evidence, led by PW6, DW1 and DW2 which clearly showed the absence of facilities necessary to develop the plot in question.
On the absence of a counter-claim and the declaration on behalf of the 1st respondent, it is obvious that in deciding the case of the appellants as plaintiffs on the validity of the title and entitlement to the plot in question, granted by the 2nd respondent the trial Court had to decide in the first place, whether the revocation of title of the 1st respondent was valid or not, since that is what was relied upon to grant title to the appellants. It is in that vein, that the trial Court found that the revocation of the title of the 1st respondent was invalid and so that obviously and consequentially affected the title of the appellants. That is the basis of the inevitable, logical and patent consequential declaration in favour of the 1st respondent and the trial Court was entitled to so do. See the case of FAYEMI v. AWE (2010) 23 WRN
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119.
As stated earlier, the findings of the trial Court are based on the evidence and are impeccable. They are not perverse. It is an established principle of law, that it is the trial Court that is vested with the preserve of evaluating and appraising evidence, because it had the singular advantage of seeing, hearing and watching the demeanour of witnesses giving evidence before it. Once it carries out this onerous duty successfully, an Appellate Court has no business disturbing the findings and conclusions reached. It can only interfere, if the findings are perverse. See ENANG v. ADU (1981) 11-12 SC 25; WOLUCHEM v. GUDU (1981) 5 SC. 291 and BABA v. N.C.A. (1991) 5 NWLR (Pt. 192) 388.
From all of the above therefore, the findings and conclusion of the trial Court are well founded and we decline to interfere. There was no service of the revocation notice on the 1st respondent and there was no valid revocation of the plot in question. Issues 1 and 5 are therefore resolved in favour of the respondents and against the appellants.
ISSUES 2, 3 AND 4
2. Whether the learned trial judge was right in holding that the reinstatement of the
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1st respondent’s revoked right of occupancy by the 2nd respondent was valid and lawful.
3. Whether the learned trial judge was right in holding that at the time of allocating the plot in dispute to the 2nd appellant the 2nd respondent lacked the competence to do so on the ground that the right of occupancy of the 1st respondent was not extinguished.
4. Whether the learned trial judge was right in failing to declare that the 2nd respondents purported revocation of the 2nd appellant’s right of occupancy over the plot was unlawful null and void and in failing to set aside the purported revocation.
Learned counsel to the appellants argued that regardless of whether or not the revocation of the title of the 1st respondent was valid or not, he is of the opinion that the learned trial judge erred when he held that the reinstatement of the revoked right of occupancy by the 2nd respondent was valid and lawful. This, the learned counsel argued, is on the premise that there is nowhere in the Land Use Act where a right of occupancy may be reinstated. Citing the case of ABIOYE v. YAKUBU (1991) 5 NWLR (Pt. 670) 30 SC counsel stated that where words of a
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statute are clear and unambiguous, they should be given their plain and ordinary meaning. Thus, the Court is not allowed to read into a statute what is not stated therein. He further argued that the moment the right is revoked by serving on the holder of the title, the notice of revocation, the revoking authority becomes functus officio.
He added that where it is shown that the revocation was not properly done, only a Court can make the declaration which then entitles the title holder to a plot. The authority i.e. Governor or Minister may grant a right of occupancy to another plot. The same plot may be given back to the title holder where the rights of an innocent third party who is a bona fide purchaser for value without notice will not be injured. For giving it back and injuring the innocent third party would be like robbing Peter to pay Paul. Learned counsel also submitted that the revoking authority cannot be said to be in error as indicated by the letter of reinstatement wherein the first paragraph made reference to the letter of revocation served and the reason for the revocation. Counsel stated further that the letter of reinstatement
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presupposes that there was a prior revocation which extinguished the title of the 1st respondent.
Counsel to the appellant also argued that the reinstatement was done at the time there was a pending suit at the High Court with Suit No: FCT/HC/CV/371/98 between rival claimants to the same subject matter to the right of occupancy. They further submitted that the action of the 1st respondent offends the doctrine of lis pendes. They relied on the case of ORONTI v. ONIGBANJO (2004) 17 NWLR (Pt. 903) 601.
As to whether the trial judge was right in holding that the 2nd respondent lacked the competence to allocate the plot to the 2nd appellant since the right of the 1st respondent was not extinguished, the counsel to the appellant posited that this is tied to the issue of whether or not the revocation of the 1st respondent’s title by the 2nd respondent is valid. Counsel argued that following his argument that the learned trial judge was wrong in holding that the revocation was wrong, it follows that the learned trial judge was equally wrong in holding that at the time of allocating the land in dispute to the 2nd appellant, the 2nd respondent lacked the
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competence to do so. The appellants questioned the evidence the learned trial judge based his finding upon, that no notice of revocation was served on the 1st respondent? Counsel argued that the trial judge failed to adhere to the principles laid down in the case of MOGAJI v. ODOFIN (SUPRA). He based this on the fact that DW1 was not a credible witness given his testimony claiming to be first an employee and then a privately contracted employee engaged to privately develop the plot and who did not know any employee of the 1st respondent and was thus not in a position to know if a notice of revocation was received. Counsel submitted that the failure of the learned trial judge to consider and make pronouncement on the issue of the probative value of the testimony of DW1 and other issues formulated and argued by the Plaintiffs’ counsel occasioned a miscarriage of justice:- CROWN FLOUR MILLS LTD v. OLOKUN (2007) ALL FWLR (Pt. 393) 24 @ 54 paras C-E and WARRI PETROCHEMICAL CO. LTD v. ONWO (1999) 12 NWLR (Pt. 630) 312.
Learned counsel to the 1st respondent insisted that the failure of the holder of the right of occupancy to receive notice of the
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extinguishment of his right meant that his right was still subsisting as at the time of the allocation of the same plot of land to the Appellants by the 2nd respondent. This, he argued follows a strict interpretation of the provisions of Section 28(7) of the Land Use Act.
Counsel for the appellants questioned the reason for the revocation of their right of occupancy. Counsel argued that by virtue of the letter of revocation served on them, it was expressed that the revocation was made in line with Section 28(5) of the Land Use Act.
Counsel further argued that the law has been settled that for revocation of a right of occupancy to be valid, the revoking authority must comply strictly with the provisions of the Act under which he purports to act.- NIGERIA ENGINEERING WORKS LTD v. DENAP (2002) FWLR (Pt.89) 1062 @ 1085 and BROSETTE MFG NIG. LTD v. M/S OLA ILEMOBOLA LTD (2007) 14 NWLR (Pt. 1053) 109 @ 157-158 wherein the Supreme Court held that the power of the governor to revoke a right of occupancy is circumscribed by the provisions of Section 28(5) of the Land Use Act; hence if the revocation notice did not contain any reason within the purview
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of those provisions, it will be null and void.
Learned counsel argued that the notice of revocation served on the Appellants did not state any of the three reasons set out in Paragraphs (a) to (c) of Section 28(5) of the Land Use Act upon which the revocation was anchored nor was evidence adduced during the trial to show that any of those grounds existed. They therefore urged us to declare the revocation of the appellants’ revocation null, void and of no effect whatsoever. The appellants also stated that it was in evidence at the lower Court that the appellants did not receive a notice of revocation. Counsel argued that this evidence was not challenged and the Court is thus bound to accept as true the uncontroverted and unchallenged evidence of the 2nd Appellant that she did not receive any notice of revocation of her right of occupancy. They relied on the cases of OMOREGBE v. LAWANI (1980) 3-4 SC 108; NICON v. POWER & INDUSTRIAL ENGINEERING CO. LTD (1986) SC 46 and NWABUOKU v. OTTIH (1961) ALL NLR 507.
?Counsel also raised the issue concerning the revocation of the 2nd Appellant’s right of occupancy by the 2nd respondent when there was a
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pending suit in respect of the same subject matter and issues between the same parties herein. Counsel submitted that it offends the doctrine of lis pendes, hence it was null, void and of no legal effect. This he urged this honourable Court to so hold.
On whether the trial judge was right in holding that the appellants failed in discharging the onus of proving their claim as against the first respondent and in dismissing the entire appellants’ claim without considering the appellants’ claim as against the 2nd respondent, Counsel submitted that the learned trial judge failed to adopt the principle of weighing the evidence adduced by both sides on an imaginary scale so as to determine which side outweighs.
As shown when discussing Issues 1 and 5 earlier here, the trial judge had found that the revocation of the 1st respondent’s title was wrong. It was the revocation of that title that enabled the 2nd respondent to grant the same plot in question, to the appellants. Since the revocation of the 1st respondent’s title was declared invalid, that obviously affected the title and the grant to the appellants.
?
On the re-instatement of the revoked
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right to the 1st respondent which the appellants have raised here, it is clear that the re-instatement is nothing but a declaration of the position of affairs by the 2nd respondent. The 2nd respondent clearly came to the view that as it had not provided the infrastructure necessary to enable the 1st respondent to develop the plot within the stipulated two years, its revocation of his title was not justifiable and was not valid. It therefore rightly re-instated it, since its earlier action was erroneous. It also did not serve the holder of the title (1st respondent) with the notice of revocation and therefore it could not have become functus officio in that regard. The position taken by learned counsel for the appellants is therefore not tenable, since there is no service of the revocation notice. You cannot give back to a person (i.e. grant title again to the 1st respondent) what you did not take away from him lawfully, in the first place. Moreover, the appellants are definitely not an innocent third party with a bona fide purchase for value.
?
On lis pendens raised by the appellants, the Suit No. FCT/HC/CV/371/98 was on trespass not on a challenge of the
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revocation of the title of the 1st respondent. As such, when the 2nd respondent realized its grievous error in revoking the title of the 1st respondent, it was entitled to take the action that would correct the error, within its statutory duties and functions. It exercised that right lawfully and it cannot be faulted at all in that vein. The doctrine of lis pendes is therefore not applicable and the trial Court was right in that regard.
On the submissions of learned counsel for the appellants that the statutory reasons for revocation of a right of occupancy as provided in Section 28(5) of the Land Use Act were not given as the reasons for revoking the right of the appellants, and that no such notice of revocation was ever served on them, it is clear that once the 2nd respondent had no title in the plot in question to vest on another (the appellants), because the plot was still legally vested in the 1st respondent, the question of revoking the title of the appellants in the plot in question, for the stated reasons in Section 28(5) of the Land Use Act, did not at all arise. It is a principle of law, that you cannot give what you do not have or own-nemo
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dat quod non habet. That is what has operated in respect of the grant of title to the appellants of the plot in question. The title of the 1st respondent was intact and subsisted until it was properly revoked under Section 28 of the Land Use Act. Since it was not, the 2nd respondent could not grant title to the same plot to the appellants. See DANTSOHO v. MOHAMMED (supra); AMINU v. OGUNYEBI (2004) 10 NWLR (Pt. 882) 457 and NEW v. DENAP (2001) 18 NWLR (Pt. 746) 726.
In effect therefore, the appellants never had lawful title in the plot in question. Revocation of the title under Section 28 of the Land Use Act for the stated reasons therein, is applicable only where the holder had a valid and lawful grant or title in the first place. If he never had lawful title or grant, the reasons for revocation under Section 28 of the Land Use Act, would not be applicable. So when the 2nd respondent did not state the reasons provided in Section 28 of the Land Use Act in revoking the grant to the appellants, the revocation was not vitiated. The revocation was in order. On non-receipt of the revocation notice raised by the counsel for the appellants, and
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submitting therefore, that the revocation of the grant of the appellants was invalid, that would be correct only if the title holder had a valid title in the first place. If he had none, service of a revocation notice, pursuant to Sections 28 and 44 of the Land Use Act and the decided authorities referred to by counsel to the appellants (OMOREIGBE v. LAWANI (supra); NICON v. POWER & INDUSTRIAL ENGINEERING LTD (supra) and NWABUOKU v. OTTIH (supra), do not apply. Therefore, the non-service of the revocation notice of the grant to the appellants has not vitiated the revocation. The revocation was valid and in order. Issues 2, 3 and 4 are therefore resolved in favour of the respondents and against the appellants.
In sum, this appeal lacks merit and it is dismissed. The judgment of the trial Court in Suit No. FCT/HC/C/CV/480/99 delivered on the 23rd of October 2007 is affirmed.
N50,000 costs to the respondents.
PETER OLABISI IGE, J.C.A.: I agree.
TANI YUSUF HASSAN, J.C.A.: I read the judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA.
?
My lord has
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thoroughly dealt with the issues in this appeal. I have nothing useful to add l agree with the conclusion leading to the dismissal of this appeal.
?
I abide by the order of N50,000.00 costs to the respondents.
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Appearances
.For Appellant
AND
S. A. Obande with him, P. T. Akau, E. E. Okeme (Mrs.) and I. J. Osakwe for 1st respondent
Mura Baba Fanya with him, I. A. Chidi and E. Wambai for 2nd respondentFor Respondent
