USMAN KAYODE OLOMODA V MR. OLANIYI MUSTAPHA & ORS
In the Supreme Court of Nigeria
Thursday, January 10, 2019
Case Number: SC.355/2009
WALTER SAMUEL NKANU ONNOGHEN
MUSA DATTIJO MUHAMMAD
KUMAI BAYANG AKA’AHSKUMAI BAYANG AKA’AHS
JOHN INYANG OKORO
SIDI DAUDA BAGE
USMAN KAYODE OLOMODA (Substituted for Alhaji Senator Ayinla Olomoda by Order of Court on 6/3/2018)
1. MR. OLANIYI MUSTAPHA2. DR. AHMED ALI3. COMMISSIONER FOR LANDS & HOUSING KWARA STATE 4. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, PLATEAU STATE
ORIGINATING SUMMONS- When is it appropriate to commence an action by originating summons
“Originating Summons should only be applicable in circumstances where there is no dispute on questions of fact and should never be a substitute for initiating contentious issues of fact. See: Oba Adegboyega Osunbade & Ors v. Oba Jimoh Oladunni Oyewunmi & Ors (2007) 4-5 SC 98.”
LAND USE ACT- What is the aim of the Land Use Act
(DELIVERED BY: KUMAI BAYANG AKA’AHS, J.S.C.)
Alhaji Senator Ayinla Olomada (now deceased) was the original claimant in Suit No. KWS/134/2007. He was granted a parcel of land measuring 3636.16 sq. meters at No. 38 Station Road, llorin by the Kwara State Government for residential purposes. The grant which was for a period of 99 years was covered by Certificate of Occupancy No. KW 4104 dated 16 June, 1981. The Certificate of Occupancy contained some special terms and conditions. Clause 1(4) of the terms and conditions provided as follows: –
“Within three years from the date of commencement of this right of occupancy to erect and complete on the said land, the buildings or other works specified in detailed plans approved or to be approved by the Town Planning Authority or other officer appointed by the Governor, such buildings or other works to be of the value of not less than N30, 000. 00 (Thirty Thousand Naira) only and to be erected and completed in accordance with such plans and to the satisfaction of the said Town Planning Authority or other officer appointed by the Governor”. After taking possession of the land, the appellant fenced it and built a gatehouse at the entrance to the land. He subsequently built a two-bedroom bungalow and was farming on the remaining portion of the land. On 20 February, 2007 the Commissioner of Lands and Housing, Kwara State sent some officials of the Ministry to inspect the land. He was surprised and shocked to see strangers on the land on 12 October, 2007 who forced their way into the land by destroying and removing the gate house and padlock. He reported the trespass to the Police. The Police investigation revealed that the entry into the land had been facilitated by the 3rd Defendant who divided the land and then shared it out to the 1st and 2nd Defendants. In pursuance of the re-allocation of the land; the defendant sent workers into the land to commence construction of a swimming pool on a portion of the land and in the process destroyed the gate house together with the gate door. Crops such as cassava and maize which were being grown on the land were also destroyed to make room for the swimming pool.
The claimant claimed that he was not given a notice of revocation when the 1st defendant entered the land. But the
3rd defendant disproved this by stating that the claimant was served a revocation NOTICE by the 3rd defendant by a letter dated 18 October, 1999 for breach of the terms of the grant and on receipt of the notice of revocation pleaded for its cancellation. The claimant later instituted an action before the Kwara State High Court by way of Originating Summons. He lost at the High Court and appealed to the Court of Appeal but the appeal was dismissed in the Court below, hence the further appeal to this Court.
During the pendency of the appeal, the original appellant died and an application to substitute the deceased appellant was granted by this Court on 6 March, 2018 and the appellant’s brief reflecting the name of the substituted appellant was re-filed on 22 March 2018.
The appellant submitted five issues for determination from 9 grounds contained in the Notice of Appeal: –
1. Whether the terms of the grant ousted the application of Section 50 of the Land Use Act in the determination of the propriety or otherwise of the revocation of the grant (Grounds 1 and 2).
2. Whether clause 1(4) of the terms of the grant made pursuant to Sections 8 and 9 of the Land Use Act are expressly incorporated or formed part of the Land Use Act and therefore cannot be waived (Grounds 3 and 4).
3. Whether the mode and the address to which the revocation Notice Exhibit MOJ3 was set met the requirements of Section 44 of the Land Use Act having regard to Exhibits MOJ 1 and MOJ 2. (Grounds 5 and 6).
4. Was the Court of Appeal right to have failed to make specific decision or finding on whether or not Exhibit MOJ.3 is an instrument and/or evidence of revocation of Appellant’s land as was duly submitted for adjudication (Grounds 7).
5. Whether the Court below made proper use of the evidence before it in arriving at its conclusions on Appellant’s claim for damages (Grounds 8 and 9).
Each of the respondents filed his or its brief of argument and all their briefs were deemed as properly filed on 15/10/2018. While adopting the issues raised by the appellant for determination, the 1st respondent filed a preliminary objection which was argued from pages 2-11 of the brief. The 2nd and 3rd respondents each had four issues for determination but they couched their issues differently.
The 4th respondent donated two issues for the determination of this Court.
Learned counsel for 1st respondent applied to withdraw the preliminary objection which he argued in the brief at pages 2-11 and it was accordingly struck out. I do not intend to reproduce the issues raised by the 1st respondent since they are reproduced verbatim with those of the appellant. The 2nd respondent’s four issues are as follows:
1. Whether the provision of Section 50 of the Land Use Act simpliciter without any other consideration for the special terms and conditions of Exhibit A is relevant in the determination of the propriety or otherwise of the revocation of the appellants grant.
2. Whether clauses 1 (4) and 1 (2) of Exhibit A are made pursuant to the Land Use Act with the attendant statutory flavour and therefore not subject to waiver.
3. Whether the appellant was properly notified and duly served the revocation notice in line with the relevant provision of the Land Use Act; and
4. Whether the appellant placed before the lower Court sufficient evidence to warrant the award of special damages.
In the amended brief of the 3rd respondent deemed filed on 15/10/2018 the following four issues were submitted for determination:
1. Whether the provision of Section 51 of the Land Use Act is relevant in the determination of the revocation of the appellants grant for breach of the special terms of the grant in Exhibit A.
2. Whether Clause 1 (4) of the term of the grant formed part of the Land Use Act and therefore cannot be waived
3. Whether Exhibit MOJ.3 the Notice of revocation constituted an instrument of revocation and was properly served on the appellant in accordance with the provision of the Land Use Act
4. Whether the lower Court was right in dismissing the claim of the appellant for special damages based on the evidence before it.
The two issues contained in the 4th respondent’s amended brief are: –
(i) Whether given the available facts and peculiar circumstances of the case leading to the instant appeal, the Governor of Kwara State acting through the 3rd respondent has not properly exercised the power to revoke the appellants Right of Occupancy or whether the power of revocation of the Appellants
Right of Occupancy by the Governor of Kwara State through the 3rd respondent was improperly, irregularly or wrongly exercised-
(ii) Whether the Court below was wrong to have dismissed the appellant’s appeal on the claim for damages.
On issue No.1 learned counsel for the appellant referred to the preamble to the terms and conditions of the grant and clause 1 (4) which he said is germane to the appeal and submitted that the terms and conditions of the grant are made subject to the provisions of the Land Use Act. He argued that in the determination of the propriety or otherwise of the revocation of the appellant’s title to the land granted, Sections 8 and 9 of the Land Use Act must necessarily be taken into consideration and contended that such terms must not be inconsistent with the provisions of the Act, He argued that Clause 1(12) which the two lower Courts relied on to hold that the appellant was in breach of the terms of the grant is inapplicable having regard to the Notice of Revocation wherein it was stated that the reason for the revocation was due to non-completion of a building on the land. He asserted that the revocation of the Right of
Occupancy must strictly be in accordance with the law otherwise such revocation is null and void. He placed reliance on the following cases. Alhaji Dahiru Saude v. Alhaji Abdullahi(1989) 7 SCNJ 216 at 237; Din v Fed Attorney-General (1988) 4 NWLR (pt.87) 147 AT 184; A.G. Bendel v. Aideyan (1989) SCNJ 80 at 92 and 97-99; Thomas Awaogbo & Ors v. C. Eze (1995) 1 SCNJ 153 at 171- 172. He argued that this Court has consistently held that before any land which has been allocated to one person is taken away and given to another person, the earlier allottee must be served with Notice of Revocation and compensation paid to him; otherwise such revocation is unlawful and unconstitutional. He submitted that had the learned Justices of the Court below taken into consideration the provisions of Section 50 of the Land Use Act, they would not have reached the conclusion that the appellants title was properly revoked for lack of development when there were structures and buildings on the land.
Learned counsel for the appellant argued that the terms and conditions of the grant could be waived and there is nowhere in the Land Use Act it is stated even by implication that the terms and conditions made pursuant to Sections 8 and 9 of the Acthave a statutory status and so cannot be waived by either party. He said that Section 28 (5) (a) and (b) of the Act gives instances when the Governor may revoke a statutory right of occupancy and clause 1 (4) is one of such instances. The section gives the Governor a discretionary power to revoke and it is not mandatory for him to carry out the revocation. He said that the conduct of the parties as stated in the affidavit in support of the Originating Summons together with Exhibits: ‘C’, `E’, MOJ.1 and MOJ.2 are clear demonstrations that the 3rd respondent informally accepted not to insist on the completion of the building on the land within a particular time frame. He submitted that the act of waiver whether express or by conduct is a legal defence and by accepting the payment of tenement rate/fee from the appellant up to 2005 the 3rd respondent waived the 3 years period for the completion of the building.
Learned counsel contended that both the trial and the lower Courts failed to properly evaluate the appellant’s affidavit evidence on his denial of being served Notice
of Revocation and that Exhibit MOJ.1 is not a revocation letter but a pre-revocation warning letter. He argued that sending Exhibit MOJ.3 to the appellant by post through the Ministry of Agriculture and Natural Resources, Ilorin which the 3rd respondent had never used before in communicating with the appellant is contrary to the provisions of Section 44 of the Land Use Act and submitted that both the trial Court and the Court of Appeal were in error to have held that the 3rd respondent complied with Section 44 of the Land Use Act when it served the appellant with Exhibit MOJ.3 through the post. He maintained that failure to notify a holder of Certificate of Occupancy of the revocation of his grant will render the revocation null and void. He cited the following cases in support: Foreign Finance Corp. v. LSDPC (1991) 5 SCNJ 52 at 81; Nigerian Engineering Works v. Denap Ltd (2001) 12 SCNJ 251 at 276; Nitel v. Ogunbiyi (1992) 7 NWLR (Pt. 255) 543. He urged this Court to hold that the Court of Appeal wrongfully relied on inadmissible evidence to find that the appellant was served revocation Notice by a newspaper publication, Exhibit MOJ.4, which was not certified either by the publisher or Registrar of Newspapers. He went on to submit in issue 4 that Section 28(5) (b) and (6) was not complied with since neither the Commissioner for Lands & Housing or Mr. Alaya was authorised to act on the Governor’s behalf in the issuance of Exhibit MOJ.3. He said there must be evidence of due authorisation by the Governor before the Court to establish a valid revocation.
On the claim for damages, learned counsel said these are contingent on the destruction of his fence, gate house and the food crops planted in the premises.
In his response to Issue No.1 learned counsel for 1st respondent cautioned this Court to be wary in intervening with the concurrent findings of the Court below and the trial Court and argued that a fence does not fall within the purview of a building neither were the crops planted on the land specified in the detailed plan approved. He therefore urged the Court not to disturb the findings of the Kwara State High Court which were affirmed by the Court of Appeal.
Learned counsel for the 2nd respondent argued that there is nothing which the appellant placed before the two lower Courts to suggest that the stipulations contained in Clauses 1(4) and 1(12) of Exhibit “A” are inconsistent with the provisions of the Land Use Act. He contended that on the appellant’s own admission, the building on the land was not completed to habitation level as at February, 2007, whereas the express terms subscribed to by the appellant to complete the building envisaged by Section 50 of the Land Use Act is 3 years and the appellant failed to fulfil the terms more than 20 years after the grant made to him since 6th January, 1981. He submitted that the breach of clause 1(4) taken together with the admission of the appellant’s usage of the land for a purpose other than residential, the 3rd respondent was justified to invoke Section 28(5) (a) & (6) of the Land Use Act to revoke the appellants right covered by Exhibit A. Learned counsel for the 3rd respondent argued in the same vein as 2nd respondent and submitted that the revocation of the appellant’s right of occupancy is for breach of the terms as contained in Exhibit “A” and as alleged in Exhibit MOJ3. The 4th respondent’s counsel also aligned himself with the arguments of learned counsel for the 2nd respondent.
On issue 2 learned counsel for 1st respondent submitted that the doctrine of waiver is not applicable in this case. He said that the appellant having breached the statutory provisions of the contract stipulated in the Certificate of Occupancy cannot come to the Court to seek any shelter since he who seeks equity must do equity. He further submitted that Section 28 (5) of the Land Use Act confers on the Governor of the State the prerogative power to revoke any statutory right of occupancy and the Governor having complied with Subsections 6 and 7 of the said Land Use Act to revoke the right of occupancy cannot be queried by anybody.
It was submitted on behalf of the 2nd respondent that the magnanimity exhibited by the 3rd respondent in granting the appellant moratorium or extension of time to develop the plot which he failed to take advantage of should not be construed as waiver of Clause 1(4) of Exhibit A.
The 3rd respondent submitted that Clause 1(4.) of Exhibit A is a statutory provision and forms part of the Land Use Act since it is mentioned in other sections of the Act namely Sections 28(5)(a) and (b), 10 and 8.
He drew the attention of this Court to the fact that the appellant has been in breach since 1983 when the three (3) years within which to erect and complete his building lapsed and the extension of six months which the appellant was given before the right of occupancy was revoked in 2007 cannot amount to a waiver of the provision of Clause 1 (4) of the Appellant’s Certificate of Occupancy. He said that granting an extension of time for a party to perform an act on compassionate ground cannot amount to waiver and relied on Secretary, Iwo Central Local Government and 3 Ors v. Adio (2000) 8 NWLR (Pt. 667) 115 and Udom v. Micheletti (1997) 7 SCNJ 447 at 464 in support of the contention.
The 4th respondent argued that the receipt of tenement rate/s up till 2005 from the appellant by the 3rd respondent does not and cannot amount to waiver. He argued that the 3rd respondent by issuing Exhibit MOJ.1 to the appellant had evinced its intention not to waive its right to revoke the appellant’s title in the event the appellant failed or neglected to take advantage of the period of six months to complete the development on the land.
On the service of the notice of revocation, the learned counsel for the 1st respondent submitted that the learned trial Judge was right to hold that the 3rd respondent did what the law requires to give the claimant notice by putting it in a prepaid post; hence it complied with the provision of Section 44 (c) of the Land Use Act.
The 3rd respondent strongly contended that the notice of revocation was served on the appellant in accordance with Sections 28(7) and 44 (c) of the Land Use Act. He said that the appellant’s address on Exhibit A is Ministry of Agriculture, Fisheries & Natural Resources, Ilorin which was the address used to dispatch Exhibit MOJ3 to him in accordance with Section 44 (c) of the Act. It was also argued that Exhibit MOJ3 constituted a valid instrument of revocation since it was signed under the hand of a public officer, Mr Alaya.
On the award of damages, learned counsel for the respondents in their various submissions maintained that the appellant did not discharge the evidential burden placed on him by law to warrant the grant of any of the claims made by him against any of the respondents especially 1st and 2nd respondents.
They accordingly urged this Court to dismiss the appeal and affirm the judgement of the lower Court.
This action was commenced and maintained through originating summons. Originating Summons should only be applicable in circumstances where there is no dispute on questions of fact and should never be a substitute for initiating contentious issues of fact. See: Oba Adegboyega Osunbade & Ors v. Oba Jimoh Oladunni Oyewunmi & Ors (2007) 4-5 SC 98.
Although this case deals principally with the issue of whether the appellant was served notice of revocation of his plot and whether the revocation is valid, there is also the issue of damages for the fence, guard house, bungalow and food crops which were destroyed in the plot for which he is demanding both special and general damages that cannot be decided through the originating summons procedure.
The Land Use Act 1978 regulates contemporary land tenure in Nigeria. It is aimed among other things, at reducing unequal access to land and resources, a situation that had caused great hardship to the citizenry. The Act is intended to assist the citizenry irrespective of their social status to realize their ambitions or aspirations of owning the place where they and their families will live a secure and peaceful lives.
Section 28 (1) empowers the Governor to revoke a right of occupancy for overriding public interest while Section 5 (2) extinguishes all hitherto existing rights to the use and occupation of land which is the subject of a statutory right of occupancy.
The learned trial Judge analysed Section 28 (1) and (5)(a) and (b) of the Land Use Act and came to the conclusion that the revocation of the appellant’s land was carried out under Section 28 (5)(b) of the Act which is that the revocation was carried out in accordance with the terms of the certificate of occupancy namely that he was in breach of clauses 1 (4) and 1(12) of the Certificate of Occupancy; that is for failure to complete the building within 3 years of the grant coupled with the act of farming on the land.
The lower Court found that the appellant was bound by the terms of the grant and statutorily by the provisions of Sections 8 and 28 (5) (a) and (b) of the Land Use Act and arrived at the same conclusion that since the appellant breached the fundamental terms to complete the buildings on the land within three years and also used the land for other purposes other than residence, the Governor had the discretion to revoke the appellant’s statutory right of occupancy over the land.
Section 28(5)(a) and (b) of the Land Use Act provides: –
28(5) The Governor may revoke a statutory right of occupancy on the ground of-
(a) a breach of any of the provisions which a certificate of occupancy is by Section 10 of this Act deemed to contain;
(b) a breach of any term contained in the certificate of occupancy or in any special contract made under Section 8 of this Act.”
The terms and conditions contained in the Certificate of Occupancy (exhibit ‘A’) allegedly breached by the appellant which led to the revocation of his right of occupancy are contained in Clause 1(4) and (12) which stipulate as follows:-
“1(4) Within three years from the date of the commencement of this right of occupancy to erect and complete on the said land the buildings or other works specified in detailed plans approved or to be approved by the Town Planning Authority or other officer appointed by the Governor, such building or other to be (of the value of not less than N30,000.00 (Thirty thousand naira only} and to be erected and completed in accordance with such plans and to the satisfaction of the said Town Planning Authority or other officer appointed by the Governor;
(12) To use the said land only for the purpose of residence”.
It is a general principle of interpretation of statutes that the use of the word “may” connotes permissive action though in exceptional circumstances it may mean mandatory or compulsory action. See: Nigerian Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56 at 77 per Onnoghen JSC (as he then was).
On the instance where the use of the word ‘may’ becomes mandatory this relates to service of a certificate on the other party before hearing but this is not done within the stipulated period. This Court interpreted the discretion given to the judge to adjourn proceedings as mandatory. Rhodes-Vivour JSC in Ugwanyi v. Federal Republic of Nigeria (2012) 8 NWLR (Pt.1302) 384 interpreting Section 43 (now 57 Evidence Act 2011) where it is provided
“Where any such certificate is intended to be provided by either party to the proceedings, a copy thereof shall be sent to the other party at least ten clear days before the day appointed for the hearing and if it is not so sent the Court may, if it thinks fit, adjourn the hearing on such terms as may seem proper.”
held that if the certificate is not served on the adverse party, ten days before it is used in court, it will become mandatory on the judge to adjourn the case. See: Ifezue v. Mbadugha (1984) 1 SCNLR 427; Amadi v. N.N.P.C (2000) 10 NWLR (Pt. 674) 76; Ogidi v. State (2005) 5 NWLR (Pt. 918)286; Odua inv. Co. Ltd v. Talabi (1997)10 NWLR (pt, 523) 1.
The interpretation to be given to Section 28(5) Land Use Act on the power of the Governor to revoke the Right of Occupancy of the person in breach of a condition or covenant is not a mandatory one but rather permissible. In exercising the Governor’s power of revocation, there must be due compliance with the provisions of the Act, particularly with regard to giving of adequate notice of revocation to the holder whose name and address are well known to the public officer acting on behalf of the Governor. See: Nigerian Telecommunications Ltd V. Chief Ogunbiyi (1992) 7 NWLR (Pt. 255) 543. The purpose of giving notice of revocation of a right of occupancy is to duly inform the holder thereof of the steps being taken to extinguish his right of occupancy. In the absence of 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 ineffectual. 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. When the appellant applied for the land, the address for contact was Ministry of Agriculture, Fisheries and Natural Resources, Ilorin Kwara State and this was the address which was carried on Exhibit “A”.
The 3rd and 4th respondents had averred in their joint counter-affidavit that the notice of revocation was posted to the appellant through the Ministry of Commerce and industries, Ilorin, Kwara State. The appellant claimed that the pre-revocation warning letter exhibit MOJ.1 reached him late and when he replied through exhibit MOJ.2, he gave his postal address as 5, Abugi Close, Adewole Estate, P. O. Box 4749, Ilorin which was his current residential or postal address. Learned Counsel submitted that the
revocation letter, exhibit MOJ.3 did not reach the appellant and since the appellant was not communicated with the revocation letter, this contravenes Section 44 of the Land Use Act and therefore renders the revocation null and void.
It is true that the appellant received exhibit MOJ.1 written on 18 October, 1999 and addressed to him through Ministry of Commerce and Industries, Ilorin. This was one of the Ministries where the appellant worked before his retirement in 1992. He also served in the Ministry of Agriculture and Natural Resources when exhibit “A” was issued to him in 1981. In his reply to exhibit MOJ.1, he wrote exhibit MOJ.2 complaining that he received the letter four months after it had been posted. He then gave a change of address where he could easily be reached namely, No. 5 Abugi Close, Adewole Estate, P.O. Box 4749, Ilorin.
Since the appellant replied exhibit MOJ.1 giving a change of address the revocation notice exhibit MOJ.3 dated 28/2/2007 which was said to have taken effect from 9/2/2007 ought to have been delivered to him in person or forwarded to him through his current address at 5, Abugi Close, Adewole
Estate or to Post Office Box 4749, Ilorin in accordance with Section 44 of the Land Use Act which stipulates that:-
“Any notice required by this Act to be served on any person shall be effectively served on him
(a) by delivering it to the person on whom it is to be served; or
(b) by leaving it at the usual or last known place of abode of that person;
(c) by sending it in a prepaid registered letter addressed to that person at his usual or lost known place of abode; or.
The appellant notified the 3rd respondent of his change of address seven years before the revocation was done. There was no justifiable reason why exhibit MOJ.3 was dispatched to him through the Ministry of Agriculture and Natural Resources. The appellant vehemently protested that he was not served with the notice of revocation and no compensation was paid to him by the 3rd respondent before the land was subdivided and re-allocated to the 1st and 2nd respondents. This same scenario played out in the case of Administrator/Executor of the Estate of General Sani Abacha (Deceased) v. Eke-Spiff (2009) 2 SCNJ 119 this Court held that Section 28 of the Land Use Act and
all the subsections there-under are expropriatory statutes which encroach on a persons proprietory rights which must be construed `Fortissimo Contra Preferentes (i.e. strictly against the acquiring authority but sympathetically in favour of the person whose property rights are being taken away).
Thus the law imposes the duty on the acquiring authority to strictly adhere to the formalities prescribed by the law. See: LSPDC V. Foreign Finance Corporation (1987) 1 NWLR (Pt. 50) 413 and Peenok Investments Ltd v. Hotel Presidential Ltd (1983) 4 NCLR 122. The 3rd and 4th respondents woefully failed to comply with the provisions of Section 28 (2) and (6) of the Land Use Act which enjoin that revocation of land by the Government should be for overriding public interest or where the revocation is done for breach of a condition, it must be served on the person to be affected and where this is not done such revocation shall be declared null and void. In the leading judgement, Aderemi JSC held the action of the revoking authority to be not only unconscionable to take away a piece of land already allocated and now re-allocate same to someone else without serving a notice of revocation on the earlier allotee and not paying that person any compensation, to be unlawful and unconstitutional.
In Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 Obaseki JSC held that: –
“Prudence and the law demand that a Governor revoking a right of occupancy for public purpose or for any purpose should accord all those aggrieved by the revocation fair hearing as provided by Section 33(1) of the 1979 Constitution if the revocation is for breaches of terms of the certificate of occupancy”.
The appellant duly notified the 3rd respondent about his change of address and any notice of revocation should be served or sent to him through the new address; otherwise there will be no valid revocation if the appellant did not get the notice of revocation. The Notice of revocation purportedly carried by the Herald Newspaper which 3rd respondent annexed as exhibit MOJ.4 as notice to the whole world that it had revoked the appellant’s right of occupancy over the disputed land would be admissible if exhibit MOJ.4 was certified by the Publisher of the Herald Newspapers or the Registrar of Newspapers.
Exhibit MOJ.4 therefore cannot be relied upon to hold that the appellant was served with the revocation.
The arguments advanced by learned counsel for 3rd and 4th respondents have become tenuous since it has become clear through exhibit D attached to the originating summons that no compensation was offered to the appellant despite the clear evidence that he had erected a fence, constructed a gate house and had a two bedroom bungalow (even if not completed) before the office of the 3rd and 4th respondents broke into the plot to carry out the subdivision and the re-allocation to 1st and 2nd respondents.
In view of all I have said, I have reached the inevitable conclusion that the so called revocation was carried out in a reckless manner without due regard to the processes that must be followed for a proper revocation. in the circumstances, I have no option but to declare the revocation as invalid, null and void.
I observe that even though the learned trial Judge dismissed the plaintiff’s claims, he still granted an order of interlocutory injunction restraining all the respondents, their agents, servants or privies from entering or carrying on construction on the applicant’s property at No. 38 Station Road G.R.A., Ilorin pending the final determination of the appeal lodged by the applicant against the decision delivered by the trial Court on 27/2/2008. I have gone through the record and did not come across any proceedings in which the order was vacated. The learned trial Judge also made an order that if he had delivered judgement in favour of the claimant, he would have awarded him general damages of N100,000.00 against the 1st and 3rd defendants jointly for trespass because the 1st defendant went into the land and destroyed the claimant’s structures and farm. There is no cross-appeal against that finding in the lower Court. That finding therefore stands.
The respondents have argued that there are concurrent findings of fact made by the two lower Courts. The issues agitated at the two lower Courts have to do with interpretation of statute.
There is concurrent jurisdiction of the trial and appellate Courts in the evaluation or interpretation of documentary evidence and the interpretation of the provisions of Land Use Act since the credibility of witnesses is not in issue.
See: Board of Management Federal Medical Centre, Makurdi v. David Terhemba Abakume (2016) 10 NWLR (Pt.1521) 536. Tukur v. Uba (2013) 4 NWLR (Pt. 1343) 90. The findings of the two lower Courts that the notice of revocation was served on the appellant are perverse and I accordingly have to interfere with the decisions. I find and hold that the appellant was not served with the notice of revocation as stipulated under Section 28 (5) (a) & (b) of the Land Use Act.
Accordingly, I declare the revocation of the appellant’s right of occupancy in respect of No. 38 Station Road G.R.A. Ilorin covered by Certificate of Occupancy No. KW 4104 as invalid, null and void. His interest over the said plot No. 38 Station Road, G.R.A, Ilorin is still valid and subsisting. I award N100,000.00 as damages to the appellant against the 1st and 3rd respondents jointly and severally for trespass. Costs are assessed at N500, 000. 00 in favour of the appellant against the 1st and 3rd respondents.
MUSA DATTIJO MUHAMMAD, J.S.C.: I have read in draft the lead judgment of my learned brother KUMAI BAYANG AKA’AHS JSC just delivered. I adopt same as mine in allowing the appeal. I abide by the consequential orders reflected in the lead judgment.
WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have had the privilege of reading in draft the Lead Judgment of my Learned Brother Hon. Mr. Justice Kumai Bayang Akaahs, JSC, just delivered.
I agree entirely with his reasoning and conclusion that this Appeal is meritorious and should be allowed and order accordingly.
I abide by the consequential orders made in the lead judgment including the order as to costs.
JOHN INYANG OKORO, J.S.C.: I had the advantage of reading in draft the lead judgment of my learned brother, Kumai Bayang Aka’ahs, JSC just delivered for which I am in agreement that this appeal is meritorious and deserves to be allowed. My learned brother has stated the law on the matter before us and I intend to make a few comments in support of the judgment.
Issue of revocation of statutory right of occupancy under Section 28 of the Land Use Act has over the years received the attention of this Court in several decisions and pronouncements. In Mr. A. O. Osho & Anor v Foreign Finance Corporation & Anor (1991) LPELR 2801 (SC) at page 47 paragraphs C – F per Obaseki, JSC (of blessed memory), this Court held as follows: –
“I have in Ereku & Ors v The Military Governor of Midwestern State of Nigeria & Ors (1974) 10 SC 59 at the trial stage years ago emphasized the need to spell out the public purpose in the notice of acquisition. I would now today give the same advice in cases of revocation. The words of Section 28 of the Land Use Act are clear and unambiguous as to what constitutes lawful revocation. Subsection 1 of Section 28 reads: “It shall be lawful for the Military Governor to revoke a right of occupancy for overriding public interest.” Overriding public interest has been defined in Subsection (2) (b) in the case of statutory right of occupancy to include “public purposes” within the state and in Subsection (3) (a) in the case of a cusright of occupancy to include public purpose within the state.”
There is no doubt that the Governor has power to revoke a certificate or Right of Occupancy for a breach of the provision which a certificate of occupancy by Section 10 thereof is deemed to contain and also a breach of any terms
contained in the certificate of occupancy or any special contract made under Section 8 of the Act. See section 28 (5) (a) and (b) Land Use Act 1978.
I need to emphasize that although the Governor has right and/or power to revoke a right of occupancy, such power must be exercised with due compliance with the provisions of the Land Use Act, particularly with regard to the giving adequate notice of revocation to the respondents whose name and address are well known. The reason or purpose of giving notice is to duly inform the holder of a right of occupancy about the steps being taken to extinguish his right. In the absence of adequate service of the notice of revocation of respondents’ right of occupancy the purported revocation of his right of occupancy is null and void.
Section 44 (a), (b) and (c) of the Land Use Act which relates to Service of Notice provides: –
“Any notice required by this Act to be served on any person shall be effectively served on him.
(a) by delivering it to the person or who it is to be served.
(b) by leaving it at the usual or last known place of abode or
(c) by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode.”
In the instant case, none of the above methods of service of Notice was complied with by the 3rd and 4th Respondents. Service of the notice is very crucial. The appellant had given the 3rd and 4th Respondents notice of change of address to No 5 Abaji Close, Adewole Estate, P. O. Box 4749, Ilorin in Exhibit MOJ 1. It follows that any notice of revocation ought to have been sent to that address in any manner under Section 44 of the Act. Having notified the Respondents of the change of address seven years before the revocation, the sending of the purported notice through Ministry of Agriculture and Natural Resources ran foul of Section 44 of the Act. In other words, that service was a none starter. It was null and void.
It is on the above reasons and the fuller ones adumbrated in the lead judgment that I agree that there is merit in this appeal. I also allow this appeal. The purported revocation of appellant’s right of occupancy in respect of No 38 Station Road, GRA, Ilorin of certificate of occupancy No KW 4104 is hereby declared null and void. I set aside the judgments of
the two Courts below. I abide by all consequential orders in the lead judgment, that relating to costs, inclusive.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead judgment of my learned brother Aka’ahs, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal has merit and it is accordingly allowed. I abide by all the orders contained in the lead Judgment.
A. O. MOHAMMED, SAN. with him, J. S. FAGBEMI, Esq. for Appellant(s)|I. B. AYEGBAMI, Esq. with him, S. A. OLUSOSUN, Esq. for 1st Respondent|O. M. LAWAL, Esq. for 2nd Respondent|O A. DADA, Esq. for 3rd Respondent|ADBULWAHAB BAMIDELE, Esq. for 4th Respondent for Respondent(s)|