UGWU v. ESHDC
(2020)LCN/15705(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, March 25, 2020
CA/E/153/2016
Before Our Lordships:
MisituraOmodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
ARCH. CHUKA UGWU APPELANT(S)
And
ENUGU STATE HOUSING DEVELOPMENT CORPORATION (ESHDC) RESPONDENT(S)
RATIO:
PARTIES ARE BOUND BY THEIR PLEADINGS
The law is settled that parties are bound by their pleadings and the case being made by each party in a trial based on pleadings must be discovered from the facts pleaded by them.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
NON-COMPLIANCE AND NOTICE OF REVOCATION
A community reading of the entire pleadings of the Appellant leaves no one in doubt that the appellant’s case is that the required notices prescribed by law were not served on him. The Respondent’s answer was that the Appellant’s interest was revoked in accordance with the law. Exhibits 14 and 15 were tendered to prove that notice of non-compliance and notice of revocation were served on the Appellant. On the issue of service of notice of non-complianceand notice of revocation of the lease, the Court below at pages 237 and 238 of the record of appeal held that:
“By the payment of the ground rent, service charges and penalties due on the plot on 23rd November, 2011, it would appear that the Plaintiff was responding to the issue raised in the Notice of non-compliance issued by the Defendant on 14th November, 2011. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
THE PROCEDURE OR METHOD IMPOSED BY LAW MUST BE STRICTLY COMPLIED WITH
It is settled that where the law confers certain powers or imposes certain duties on any person or authority and stipulates the procedure or method to be followed in the performance of that duty or the exercise of that power, that procedure or method must be strictly complied with. SeeA.G KWARA STATE & ANOR. V.ADEYEMO & ORS (2016) LPELR-41147 (SC) AT 20 -21 (C-D). AMASIKE V. REGISTRAR GENERAL, C.A.C. (2010) LPELR-456 (SC) AT 54 (B), NIGERIAN SOCIAL AND INSURANCE TRUST FUND MANAGEMENT BOARD V. KLIFCO NIGERIA LTD. (2010) LPELR-2006 (SC) AT 39-40 (G-A). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
NO SPECIFIC MODE OF SERVICE OF NON-COMPLIANCE AND NOTICE OF REVOCATION
I agree with the Court below that the appellant is not entitled to insist on specific mode of service of non-compliance and notice of revocation outside those prescribed by the law. However, he is entitled to insist on written notice properly served in accordance with the law. The Appellant is not insisting on a mode of service outside those prescribed by the law. Verbal notice ofrevocation is definitely not one of the modes prescribed by the law. I do not agree with the Court below that the revocation of the appellant’s interest in the land in dispute is valid and lawful because the appellant breached the covenant on payment of ground rent and other charges as at when due and he neglected, failed and refused to make significant improvement or develop the land for about 15 years. First, the Respondent accepted payment of the ground rents and imposed penalty for late payment which the appellant paid. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, delivered in Enugu Judicial Division in suit no. E/140/2012 on 29th January, 2014. The Appellant herein as the Plaintiff instituted the suit and sought the following reliefs:
1. “A declaration that the purported notice of revocation given to the Plaintiff by the Defendant is invalid, null and void as no notice of intention to revoke was given to the plaintiff.
2. A declaration that the Plaintiff has a sole right to and absolute possession of all the improvements on plot 31/37 House Type C3/09D, Trans – Ekulu, Phase VI, Enugu measuring approximately 2116.160 sqm and demarcated by beacon numbers C33302, C33303, C33283, C33284 on plan No. EN (E) 97 and any interference thereto is a trespass.
3. An order of perpetual in junction restraining the defendants (Sic) by themselves or their agents, workmen, servants or privies however constituted from taking possession or interfering with the property of Architect Chuka Ugwu known as Plot 31/37 House Type C3/09, Trans – Ekulu, Phase VI, Enuguor doing anything hereinbefore mentioned inconsistent with the plaintiff’s interest on the property.
4. The sum of N7,000,000.00 (Seven Million Naira Only) being general and aggravated damages for trespass.”
The Appellant’s case was that the Respondent leased a plot of land known as plot 31/37 House Type C3/O9D Trans Ekulu, Phase VI, Enugu (henceforth referred to as the land) to him in August, 1996. He paid the requisite fees and took possession of the land. In January, 2001, a Deed of Lease registered as 97/97/1459 in the Lands Registry at Enugu was executed in his favour. Efforts were being made by him to develop the land when in February, 2012 he received a telephone call from a staff of the Respondent informing him that his interest in the land has been revoked. In March, 2012 his workmen informed him that the officials of the Respondent chased them away from the land and destroyed the foundation work thereon.
The Respondent’s defence was that the land was left lying fallow and overgrown with weeds as the appellant did not make any attempt to develop the land in any manner whatsoever since the allocation of same to him in 1996. As there was no sign of occupation by the appellant, his interest was duly revoked in accordance with the law.
The Appellant testified and tendered several documents in support of his case. The respondent called one witness and tendered two documents. Written addresses were filed and exchanged by the parties in accordance with the rules of the Court. The Court below in its considered judgment held that the Appellant’s case lacked merit and dismissed same. The Appellant filed a notice of appeal containing four grounds of appeal against the judgment on 7th March, 2014. The Appellant’s brief of argument was filed on 4/11/2016 and was deemed as properly filed and served on 15/5/18. The Respondent filed its brief of argument on 14/6/18.
The Appellant formulated the following issue for determination:
“Whether in view of the evidence in this case, the learned trial judge was right in dismissing the Appellant’s suit.”
The respondent’s counsel formulated the following issue for determination:
“Whether having regard to the relevant laws and the evidence on record the learned trial judge was right in dismissing the Appellant’s suit.”
The issues formulated by counsel to both parties are the same. The issue is hereby adopted for the determination of this appeal.
The Appellant’s counsel submitted that Section 16 the Enugu State Housing Development Corporation Law, Cap. 58, Volume III, Laws of Enugu State, 2004 by which the Respondent was established prescribed the procedure to be followed in the event that the Respondent deems it fit that the Appellant’s interest in the land should be revoked for any non – compliance with the Respondent’s housing policies and an outstanding part of that procedure is that the respondent should make a recommendation to the Governor that the Appellant’s lease be revoked. It is submitted that the finding of the trial Court that the purported revocation of the appellant’s interest in the land was valid and lawful is wrong as it is not in evidence that there was compliance with the procedure prescribed by the enabling law. Counsel argued that the lease agreement tendered as exhibit 7 which contains the covenants, terms and conditions of the lease is a contract which binds the parties thereto and none of the parties is to be allowed to operate outside the terms of the contract. He referred to AGBAREH &ANOR V. MINRA & 2 ORS (2008) 1 S. C. (PT 111) 58 AT 112. He further argued that there is no provision in exhibit 7 as to when the Appellant should have commenced and completed development of the land and it is not demonstrated in the record that the Appellant did not comply or “observe strictly the conditions and standards laid down in any State or Local Government Planning Law in developing the land in dispute. It is submitted that it is not proper for the learned trial judge to have held that it was right for the Respondent to have revoked the appellant’s interest in the land on account of alleged belated payment of ground rents and lack of development of the land when the appellant did not breach “encumbrance 1 and 16” in exhibit 7 or any other term of the contract contained in that exhibit and the Respondent not only knew that the payment in Exhibit 1 was made out of time but also penalized the Appellant for the purported belated payment. It is further submitted that the Respondent took benefit of the alleged belated payment only to turn round to purport to revoke the Appellant’s interest in respect of which the payment was made. Thus, the Appellant was deprived of taking benefit of the payment made on the land in. He referred to IBEKWE V. MADUKA (1995) 4 NWLR (PT. 392) 716 AT 725.
The Respondent’s counsel submitted that the lease granted by the Respondent as well as the power to grant the lease are clearly derived from the Enugu State Housing Development Corporation Law (supra). It is further submitted that the two primary incidents of non-compliance as contained in the notice of non-compliance (Exhibit 14) were the failure of the Appellant to develop the subject matter in dispute as well as his failure to pay his ground rents as at when due and a period of 90 days was given to the Appellant to make good his misdeeds. Counsel urged the Court not to disturb the finding of the Court below on the service of notice of non-compliance and notice of revocation as the Court observed that the notice of non-compliance (Exhibit 14) is dated 14th November, 2011 and that it was about 10 days later, i.e. on 23rd day of November, 2011that the Appellant went and paid part of his ground rents including the penalty for late payment.
On the claim for damages, counsel submitted that the Appellant did not adduce any shred of evidence in proof of same as he merely alleged that it was his workmen that informed him of the fact but failed to call any of the alleged workmen as a witness throughout the trial. He urged the Court to resolve the sole issue formulated for the determination of this appeal in favour of the Respondent.
RESOLUTION:
The law is settled that parties are bound by their pleadings and the case being made by each party in a trial based on pleadings must be discovered from the facts pleaded by them.
A community reading of the entire pleadings of the Appellant leaves no one in doubt that the appellant’s case is that the required notices prescribed by law were not served on him. The Respondent’s answer was that the Appellant’s interest was revoked in accordance with the law. Exhibits 14 and 15 were tendered to prove that notice of non-compliance and notice of revocation were served on the Appellant. On the issue of service of notice of non-compliance and notice of revocation of the lease, the Court below at pages 237 and 238 of the record of appeal held that:
“By the payment of the ground rent, service charges and penalties due on the plot on 23rd November, 2011, it would appear that the Plaintiff was responding to the issue raised in the Notice of non-compliance issued by the Defendant on 14th November, 2011. He was able to address only one of the complaints of the Defendant as contained in the notice….
On the issue of service of the Notice of non-compliance Section 16(3) (i) of the same law provides that it shall be deemed to have been properly given if the same is sent by post to the last known place of abode or business of the lessee or by publication in any Daily Newspaper in circulation within Enugu State or by publication in the state gazette. It is therefore not correct to insist on a particular mode of service contrary to the alternative modes expressly provided by the law establishing the Corporation. The case of Adole V. Gwar (supra) is therefore inapplicable.” On the issues joined by the parties, the onus was on the Respondent to prove that it complied with thelaw in serving the notice of intention to revoke the lease on the appellant. Both parties agreed that the Respondent was established by Enugu State Housing Development Corporation Law. The functions and powers of the Respondent are set out by that law. It is settled that where the law confers certain powers or imposes certain duties on any person or authority and stipulates the procedure or method to be followed in the performance of that duty or the exercise of that power, that procedure or method must be strictly complied with. SeeA.G KWARA STATE & ANOR. V.ADEYEMO & ORS (2016) LPELR-41147 (SC) AT 20 -21 (C-D). AMASIKE V. REGISTRAR GENERAL, C.A.C. (2010) LPELR-456 (SC) AT 54 (B), NIGERIAN SOCIAL AND INSURANCE TRUST FUND MANAGEMENT BOARD V. KLIFCO NIGERIA LTD. (2010) LPELR-2006 (SC) AT 39-40 (G-A). Section 16 (1), (2) and (3) (e),(f),(g),(h),(i) and (j) of the Enugu State Housing Development Corporation Law provides that:
16. (1) “The Corporation is charged with responsibility for the development, designing, planning, construction and management of houses for acquisition and rental by members of the public and such other functions as theGovernor may from time to time direct.
(2) The Corporation shall develop and implement various housing policies for the State, subject to the approval of the Governor.
(3) Subject to this Law, the Corporation may do all such things as are in its functions under Subsections (1) and (2) and, for example he may –
(e) Lease and assign lands vested in the Corporation upon such conditions as the corporation may deem fit, including conditions as to the payment of the consideration upon deferred terms, nature and design or type of houses to be developed on such assigned lands as well as the period within which such development must be commenced and completed;
(f) At regular intervals assess the performance of its various tenants, lessees, assignees or holders of other titles in respect of property vested in the Corporation with a view to ensuring their compliance with the general housing polices of the State and whenever it deems it necessary, serve notice of non-compliance with or deviation from its housing policies on any tenant, lessee, assignee or other holder of title in respect of any house, partially developed property, or undevelopedproperty, or other properties under its control whether developed or undeveloped, stipulating the details of such non-compliance with or deviation from its housing policies and giving a time limit as it may deem fit within which such tenant, lessee, assignee, or holder shall comply and conform or make good his default or deviation;
(g) After written notice thereof shall have been served on him, the Corporation notwithstanding the provisions of any agreement or title deed executed by it or its predecessor in title in respect of such property, take whatever steps it may deem necessary to enforce compliance with its general housing policy including recovery of the building from the tenant and in the case of a lessee, assignee or other holder recommend to the Governor a revocation of the lease or assignment or other title;
(h) Recommend to the Governor where it is deemed fit the revocation of the title of any lessee, assignee or other holder in respect of any such property aforementioned;
(i) For the purposes of notice referred to in paragraph (f) deem it to have been properly given if the same is sent by post to the last known place of abode orbusiness of the tenant, lessee, assignee or other holder or by publication in any daily newspaper in circulation within Enugu State or by Publication in the State Gazette;
(j) Where a lease, assignment, or other title is revoked by the Governor under the provisions of the proceeding Section 16 (3) (h), take account of whatever development the lessee, assignee, or holder may have made on the property leased, assigned, or held with a view to paying a reasonable compensation to such lessee, assignee or holder as the Governor on the recommendation of the Corporation may deem fit.”
The Respondent neither pleaded nor led any evidence to prove that any of the methods prescribed by the law was followed in serving the notice of non-compliance or notice of revocation, Exhibits 14 and 15 on the appellant. It is not enough to show that a letter was addressed to a particular person and address. Where as in this case, the addressee denies receipt of a letter or document, there must be pleading and cogent and credible evidence that the letter was sent to the address at all and by what means. See NATIONAL EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION LTD. V. LADUN MARTINS (1969) LPELR- 25570 AT 7-8 (F-B) where the Supreme Court per MADARIKAN JSC held that:
“Proof that a letter was properly addressed and posted is prima facie evidence that it was delivered to the addressee in due course. But where, as in this case, the addressee has led evidence that he did not receive the letter, then a straight issue of fact is raised, and before making as finding of fact as to the delivery or non-delivery of the letter, the Court ought to examine the evidence carefully.”
The Appellant specifically stated that he only received a phone call from a staff of the Respondent sometimes in February, 2012 that the lease has been revoked. I have perused the entire pleadings and evidence on record. I cannot find any averment or evidence from the Respondent that notice of non- compliance or notice of revocation was served on the Appellant and how they were served. Without credible evidence of how the notices were served, the finding of the Court below that the payment of the ground rent on 23/11/2011 appeared to be a reaction to the notice of non-compliance dated 14th November, 2011 Exhibit 14 is speculative. No Court isallowed to base its decision on mere speculation. In IWUCHUKWU & ANOR. V. THE ATT. GEN. OF ANAMBRA STATE (2015) LPELR- 24487 AT 28 (A-C), this Court per AGIM, JCA held that:
“The service of the notice of revocation of an interest in land on the owner of such interest cannot be presumed from the fact that he is aware of the existence of such notice. It is not a matter that can be presumed. The fact of such service must be proved by preponderant evidence.”
DW1 merely stated in his statement on oath that the notices were duly published. He did not say how they were published. Since Section 16 (g), (h), (i) and (j) of the law extinguishes the interest of a lessee, the law demands strict compliance with the law under which the power to revoke the lease is exercised. I agree with the Court below that the appellant is not entitled to insist on specific mode of service of non-compliance and notice of revocation outside those prescribed by the law. However, he is entitled to insist on written notice properly served in accordance with the law. The Appellant is not insisting on a mode of service outside those prescribed by the law. Verbal notice ofrevocation is definitely not one of the modes prescribed by the law. I do not agree with the Court below that the revocation of the appellant’s interest in the land in dispute is valid and lawful because the appellant breached the covenant on payment of ground rent and other charges as at when due and he neglected, failed and refused to make significant improvement or develop the land for about 15 years. First, the Respondent accepted payment of the ground rents and imposed penalty for late payment which the appellant paid. Hence the only ground for the revocation of the lease stated in Exhibit 15 is refusal to develop the land. Secondly, both parties agreed that the powers and functions of the defendant are donated by the Enugu State Housing Development Corporation Law. A revocation of a lessee’s interest under the law can only be valid by a strict compliance with the procedure set out by the law. The procedure is that (1) Notice of non-compliance shall be served on the lessee by one of the modes of service set out in Section 16 (3) (i) of the law. (2) After a written notice shall have been served on the lessee, the respondent shallrecommend to the Governor where it is deemed fit the revocation of the title of the lessee. By the tenor of the provisions of Section 16 (3) (g),(h) and (j) of the law, the decision to revoke or not to revoke lies solely with the Governor. The law is settled that where a statute confers a power on the holder of an office, unless the contrary intention appears from the statute, the power may be exercised only by the holder of the office, his successor-in-title or the holder of the office for the time being. See OBAYUWANA V. GOVERNOR, BENDEL STATE & ANOR. (1982) LPELR-2160 (SC) AT 25-26 (D-A). ATT. GEN. OF OGUN STATE V. ATT. GEN. OF THE FEDERATION (1982) LPELR-11 (SC) AT 65 (C-E). There is no evidence on record to show that the provisions of Section 16 (g),(h),(i) and (j) of the law were complied with. I find it necessary to state the content of Exhibit 15 which is the notice of revocation. It reads:
“Arc. Chuka Ugwu,
11 Afariogun Street,
Ajao Estate, Ikeja,
Lagos.
Dear Sir,
REVOCATION OF PLOT NO. 31/37 TRANS-EKULU PHASE VI, ENUGU
We refer to the above stated property and wish to inform you that we are in receipt ofdirective vide a letter from the State Government dated March 9, 2012 with Ref. No. GHS/35/XVI/140 following your failure to comply with our revocation notice dated 14th November, 2011.
This is as a result of your obvious refusal to develop the property as expected by you.
Take notice that the property is hereby revoked in accordance with Section 16 (f), (g), (h), (i) & (j) of ESHDC Law Cap 58 of 2004 Volume 5, Laws of Enugu State.
By this action, all your interest in the above stated property stand reverted to the Corporation.
Thank you.
Yours faithfully,
ENUGU STATE HOUSING DEVELOPMENT CORPORATION.”
There is nothing to show that any recommendation was made to the Governor. There is nothing to show that the lease was revoked by the Governor after compliance with the provisions of Section16(3) (g),(h),(i) and (j) of the law. The letter referred to in Exhibit 15 was not tendered to enable the Court determine the writer and from where it emanated. There is nothing in the provisions of Section 16 (3) (g)(h),(i) and (j) of the law to suggest even remotely that revocation of a lease under the law can be carried out without arecommendation to the Governor and a decision by the governor to revoke the lease. The Respondents having failed to prove that the notice of non-compliance and notice of revocation were served on the Appellant by any of the modes of service prescribed in Section 16 (3) (i) of the Enugu State Housing Development Corporation Law and that the Provisions of Section 16 (3) (f) (g), (h) and (j) of the law were complied with, the revocation of the appellant’s interest in the land in dispute is bad ab initio. The result is that the appellant’s interest in the land in dispute subsists.
In conclusion, I find merit in this appeal. It is hereby allowed. The judgment of the High Court of Enugu State delivered in suit no. E/140/2012 on 29th January, 2014 is hereby set aside. Judgment is hereby entered in favour of the Appellant as follows:
1. It is hereby declared that the purported notice of revocation given to the Appellant by the Respondent is invalid, null and void as no notice of intention to revoke was given to the Appellant.
2. It is hereby declared that the Appellant has a sole right to possession of all the improvements on plot 31/37House Type C3/09D, Trans – Ekulu, Phase VI, Enugu measuring approximately 2116.160 sqm and demarcated by beacon numbers C33302, C33303, C33283, C33284 on plan No. EN (E) 97.
3. The Respondent, it’s agents, workmen, servants or privies however constituted are hereby restrained from taking possession or interfering with the property of Architect Chuka Ugwu known as Plot 31/37 House Type C3/09, Trans – Ekulu, Phase VI, Enugu or doing anything hereinbefore mentioned inconsistent with the Appellant’s interest on the property.
4. The claim of N7,000,000.00 (Seven Million Naira Only) being general and aggravated damages for trespass is hereby dismissed for lack of evidence.
Parties shall bear their respective costs.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSSUF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find merit in this appeal and I allow it accordingly.
I adopt the consequential orders inthe lead judgment as mine.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the privilege of reading before now, the draft of the lead judgment delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA.
I agree that the Respondents having failed to prove that the notice of non-compliance and notice of revocation were served on the Appellant by any of the modes of service prescribed in Section 16 (3) (i) of the Enugu State Housing Development Corporation Law and that the provisions of Sections 16 (3) (f) (g) (h) and (j) of the law were complied with, the revocation of the Appellant’s interest in the land in dispute is bad ab initio.
In consequent of the above stated, and the detailed reasons contained in the lead judgment, this appeal succeeds and is hereby allowed. The judgment of the High Court of Enugu State delivered in Suit No: E/140/2012 delivered on 29th January, 2014 is hereby set aside.
I also abide by the order made in the lead judgment and that parties shall bear their respective costs.
Appearances:
A. O. Mogboh (JNR.), with him, Chukwuma Edeh For Appellant(s)
O. O. Agbo For Respondent(s)
