YA’U v. MINISTRY OF LAND AND PHYSICAL PLANNING KANO & ORS (2022)

YA’U v. MINISTRY OF LAND AND PHYSICAL PLANNING KANO & ORS

(2022)LCN/16623(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, October 21, 2022

CA/K/337/2018

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

ABDULRAHIM YA’U APPELANT(S)

And

1. MINISTRY OF LAND AND PHYSICAL PLANNING KANO 2. KANO STATE URBAN PLANNING & DEVELOPMENT AUTHORITY 3. ATTORNEY GENERAL OF KANO STATE 4. MINISTRY OF EDUCATION KANO STATE RESPONDENT(S)

RATIO

THE PURPOSE OF THE FRONTLOADING SYSTEM IN TRIAL OF CIVIL CASES

The frontloading system in trial of civil causes and matters was meant to speed up trials, and to furnish the parties with facts and evidence to be led at the trial, ahead of time, so that no party can be taken, unawares, or misled, in anyway. The system came to enhance and improve trial by pleadings, as the facts averred in the pleadings are also reduced into evidence (more or less) by way of affidavit evidence, which is built on the said facts, in what has come to be known as “Witness Statement(s) on Oath.” See Order 3 Rule (2) (8) of the Kano State High Court Civil Procedure Rules, which provides for the filing of writ of summons and statement of claim and same to be accompanied by written statement on oath of witnesses (affidavit) setting out the facts relied upon, and all the exhibits, etc. Of course, the statement on oath of the witness(es) must comply with the relevant laws relating to the taking of affidavit evidence, including Sections 109 and 112 of the Evidence Act, 2011.
By Section 109 of the Evidence Act:
“An affidavit sworn before any Judge, officer or other person duly authorised to take affidavits in Nigeria may be used in the Court in all cases where affidavits are admissible.”
And Section 112 of the same Act (Evidence Act) says:
“An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner or before a partner or clerk of his legal practitioner…” PER MBABA, J.C.A.

THE POSITION OF LAW ON WHEN A DOCUMENT IS SIGNED BEFORE BEING PRESENTED TO THE COMMISSIONER FOR OATHS
Where a document is signed, before being presented to the Commissioner for Oaths, for endorsement, it amounts to deceit and, in fact, perjury, in my view, as the Commissioner for Oaths does not even know and cannot identity the deponent. He also compromised his office, by so doing, making nonsense of the entire process. Sections 5, and 10 of the Oaths Act, Laws of the FRN 2004, and the Evidence Act, 2011, Section 112, made clear provisions on how to depose to affidavit before a Commissioner for Oaths or a Notary Public, and the procedures are meant to be followed, religiously.
By Section 112 of the Evidence Act, 2011:
An affidavit shall not be admitted, which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner.
See also the case of Buhari Vs INEC (2008) 12 SCNJ 1 at 91, where the Supreme Court struck out the depositions of Appellant’s witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was in violation of Section 19 of the Notary Public Act and Section 112 of the Evidence Act, 2011. See also the recent text Book on The Law of Affidavit Evidence by Ike Njoku, Five Clands Publishing Co. Ltd, Page xi (Foreword), 2022.
See also the case of Erokwu Vs Erokwu & Anor (2016) LPELR-41515 CA, where my Lord Ogunwumiju, JCA (as she then was, now JSC) held:
The deponent afterwards, signs in the presence of the Commissioner for Oaths, who witnesses that the Affidavit was sworn to in his presence. This explains the phrase. Before me, usually signed by the Commissioner for oaths. Any arrangement other than the above amounts to a nullity… When a deponent swears to an oath, he signs in the presence of the Commissioner for oaths, who endorses the document, authenticating the signature of the deponent. Signatures signed outside the presence of the commissioner for oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner of Oaths is not legally acceptable in Court. See also Chidubem Vs Ekenna & 12 Ors (2008) LPER -3913; (2009) ALL FWLR (Pt.455) 1692. PER MBABA, J.C.A.

WHETHER OR NOT THE GOVERNOR OF A STATE CAN REVOKE A RIGHT OF OCCUPANCY GRANTED TO AN OCCUPIER OF LAND

By law, the government, through the Governor of a State, can revoke a right of occupancy granted to an occupier of land, but that can only be done in strict compliance with the relevant laws, not arbitrarily, in show of power and authority. The reason for such compliance with the laws, is obvious, as arbitrary exercise of the powers can result in incalculable damages to the victim, and cause insecurity to business and residency in the society. And any such revocation of right of occupancy can only be justified on the grounds of overriding public interest. And the victim must be served with due Notice of the revocation, and paid compensation, where necessary.
Section 43 of our National (1999) Constitution, allows every citizen the right to acquire and own immovable property, anywhere in Nigeria, and by Section 44(1) of the Constitution:
“No movable property or any interest in an immovable property shall be taken possession of compulsory and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria, except in the manner and for the purpose prescribed by a law that, among other things:

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of the High Court of Kano State in Suit No. K/381/2014, delivered on 31st January, 2015 by Hon. Justice Aisha Ya’u, whereof the Learned trial Judge dismissed the claims of the Plaintiff (now Appellant), “for his inability to discharge the burden placed on him”.

At the trial Court, the Plaintiff, Alhaji Ya’u Mohammed (now deceased and substituted by his son, Abdulrahim Ya’u) had sought the following reliefs:
(a) A declaration that the purported revocation of the plaintiff’s certificate of occupancy NO. LKN/RES/89/4269 vide the 1st Defendant’s notice of revocation dated the 3rd day of September, 2014 together with the subsequent purported withdrawal, by the 2nd defendant of the building plan approval dated the 26th day of April, 1996 is null and void and of no effect whatsoever having been done contrary to the land use Act and the laws of the land.
(b) An order setting aside the purported revocation of the plaintiff’s land covered by certificate of occupancy No. LKN/RES/89/4269 vide the 1st defendant’s notice of revocation dated the 3rd day of September, 2014 together with the subsequent purported withdrawal, by the 2nd defendant of the building plan approval thereof dated the 26th of April, 1996.
(c) A declaration that the demolition of the buildings of the plaintiff on his land covered by certificate of occupancy NO. LKN/RES/89/4269 on the 6th of September, 2014 less than the 24 hour ultimatum given to the Plaintiff is illegal null and void and of no effect whatsoever.
(d) An order setting aside the demolition of the buildings of the plaintiff on land covered by certificate of occupancy No. LKN/RES/89/4269 on 6th of September, 2014 by the agents of the defendants and upon directive of the defendants.
(e) A declaration that the re-allocation of the land covered by certificate of occupancy No. LKN/RES/89/4269 by the 1st defendant to the 4th is null and void of no effect whatsoever.
(f) An Order setting aside the re-allocation or the land covered by certificate of occupancy No. LKN/RES/89/4269 by the 1st defendant to the 4th defendant.
(g) A declaration that the buildings plan approval given to the 4th defendant by the 2nd defendant over the land covered by certificate of occupancy No. LKN/RES/89/4269 (sic).
(h) An order setting aside the said building plan approval given to the 4th defendant by the 2nd defendant over the land covered by certificate of occupancy No. LKN/RES/89/4269.
(i) An order restraining the Defendants/Respondents by themselves, their officers, agents privies, or any person deriving authority, or power from them, from continuing further development and/or improvement on the structures on the land in dispute covered by certificate of occupancy No. LKN/RES/8914269.
(j) A declaration that the plaintiff was not given fair hearing by the defendants before the purported revocation of the plaintiff’s right of occupancy covered by certificate of occupancy No. LKN/RES/89/4269 and the subsequent demolition of the plaintiff’s property.
(k) An order directing the defendants re-build the Plaintiff’s structure on the plaintiff’s land covered by certificate of occupancy No LKN/RES/89/4269 and put it in “the state it was as at 6th day of September, 2014 at 7.49 am, when the defendants demolished the Plaintiffs property.
(l) An order directing the defendants to pay the Plaintiff the sum of N340,000:00 (three hundred and forty thousand Naira) per annum representing yearly rent from 2014 to the date of judgment.
(m) An injunction restraining the 4th defendants (sic) from revoking the right of occupancy NO. LKN/RES/139/4269 and the building plan approval thereof dated 20th April, 1996 except as provided by the land use Act.
(n) A perpetual injunction restraining the 4th defendant from continuing the construction on the land in dispute covered by certificate of occupancy No. LKN/RES/89/4269.
IN THE ALTERNATIVE
(o) The sum of N35 million as cost of re-building the destroyed structures.
(p) Damages in the sum of N150 million for embarrassment, emotional trauma and loss of earnings.
(q) The cost of this action.

The parties had exchanged pleadings, as the Respondents (as Defendants) had filed a joint Amended Statement of defence on 9/1/2017. After hearing the case and considering the addresses of Counsel, the trial Judge had held against the Plaintiff (Appellant) and said:
“It is the argument of the Plaintiff’s Counsel, that the structures in the disputed land were demolished before the expiration of the 24 hours given to the Plaintiff. While the DW1 contended that as at 3rd September, 2014 when the certificate of occupancy was revoked, the Plaintiff was served with the notice of revocation by the 2nd Defendant in the morning of 04/9/2014, for the purpose of informing his tenants to remove their belongings. That the Defendants allowed the remaining tenants who did not vacate and remove their belongings the grace of up to 06/09/2014 before demolishing the structures…
It should be noted that the burden of proofing (sic) that the structures have been demolished before the expiration of 24 hours is on the Plaintiff. It is trite law that he who asserts must prove. Since according to the Plaintiff, when the Officers of the 2nd Defendant went to demolish the said structures, his tenants called and informed him of what was happening at the site over the phone. It would have been appropriate if he had called some of the tenants in whose presence the incident happened in order to give account or testify at least on the precise time the demolition was carried out. This having not been done, I hold that the said 24 hours has been accorded to the Plaintiff…
It has been argued that the Plaintiff has not been accorded fair hearing before the demolition of the structures.
While the DW1… contended that the present Defendants did not receive any recent petition or complaints from the T/Wada Patriots on the disputed land immediately before the revocation to warrant calling the Plaintiff to put up fresh defence. Furthermore, the DW1 contended that the Plaintiff is not entitled to further notice after collecting the notice of revocation before the demolition. That the notice of revocation gives rights of forfeiture over the structure and the land under the conditions contained in the certificate of occupancy.
I hold the view that once the Plaintiff has been served with a revocation notice prior to the demolition, he need not be served with a further notice as pointed out by the DW1…
Revocation of a right of occupancy for public purpose or in public interest does not include the revocation of the right of a guarantee for the purpose of vesting it in another. For revocation of right of occupancy therefore to be valid in Nigeria, it must be made strictly in compliance with Section 28 of the Land Use Act.
I have carefully cross-checked all the exhibits tendered before this Court. The only petition or complaint from the T/Wada patriots is that of 3rd October, 2009, which was addressed to the 2nd Defendant. I also observed that the said revocation notice is dated 3rd September, 2014 i.e. 5 years in between the complaint of T/Wada Patriots and the issuance of the revocation notice to the Plaintiff.
Thus, having not seen any recent Petition or complaint I hold that there has never been a new complaint from the T/Wada patriots which would have warranted the Defendants to call upon the Plaintiff to put in fresh defence.
Also since the requirements of Section 28 of the Land Use Act as contain (sic) in the case of Ibrahim Vs Mohamad (supra) has been fulfilled by the Defendants, the Plaintiff has been accorded fair hearing. It is my findings therefore that the Plaintiff has failed to discharge the burden placed on him. Consequently, the prayers sought are hereby refused.” (See Pages 378 to 380 of the Records of Appeal).

That is the judgment the Appellant appealed against, being aggrieved, as per the Amended Notice of Appeal, filed on 6/02/2020, which disclosed 6 grounds of Appeal, Appellant filed his Amended Brief of Arguments on 6/02/2020 and donated two Issues for the determination of the appeal, as follows:
(1) Whether the learned trial Judge is right by holding that the witness statement on oath of the defendants though not signed before the Commissioner for Oaths or any person authorized by law is valid and admissible. (Grounds 1 and 2).
(2) Whether the learned trial Judge is right by dismissing the case on the ground that the notice of revocation of the right of occupancy is adequate and so the Appellant was given fair hearing, notwithstanding the non-payment of compensation. (Grounds 3, 4, 5 and 6).

The Respondents filed no brief, and on 15/2/2022, Appellant was granted leave to argue the appeal, and for it to be heard on his brief alone. The Respondents have therefore not shown interest to defend the appeal.

Arguing the appeal, Appellant’s Counsel, S.J. Gani, Esq, on Issue 1, said that civil claims are won or lost by pleadings and on the preponderance of admissible, relevant and credible evidence; that by the rules of Court, a witness gives evidence through his statement on oath, attached to his statement of claim or statement of defence, and that the law requires such statement on oath to be properly sworn, as depositions or evidence on oath (Affidavit). He relied on the case of Buhari Vs INEC (2008) SCNJ 12 (Pt.1) 1.

Counsel called our attention to the evidence (statement on oath) of Respondents’ witness and submitted that the same was not valid, as same was not sworn before a Commissioner for Oath. Counsel referred us to the evidence of DW1, under cross-examination (Page 112 of the Records), where he (DW1) said:
“Yes, my statement on oath is based on the facts I give to my lawyer which reduced into writing. Yes I signed same in my office…”

Counsel submitted that that means the DW1’s witness statement on oath was depose to “before his legal practitioner”, before it was taken to the person authorized to administer oaths; that DW1 signed his deposition before his lawyer, who is not the officer duly authorized to take oath or affidavits in Nigeria. Thus, the statement on oath by DW1 offended the Section 112 of the Evidence Act, 2011.

Counsel referred us to Sections 109 and 112 of the Evidence Act, 2011 to the effect that “An Affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered or before his legal practitioner, or before a partner or clerk of his legal practitioner.”

Counsel said that the act of swearing to the depositions before his Counsel (in the office of the DW1) violated the provisions of Sections 109 and 112 of the Evidence Act, and so the said deposition (evidence) became invalid and inadmissible. He relied on the case of Chidubem Vs Ekenna (2009) ALL FWLR (Pt.455) 1692 at 1706 (which also founded on the case of Buhari Vs INEC (2008) 4 NWLR (Pt.1078) 546 at 608). He added that the said deposition was inadmissible, going by the confession of the DW1, and so this Court should expunge same; and that done, no evidence or defence was available for the Defendants (Respondents herein). Thus, Appellant’s case was not challenged, as Defendant’s pleadings remained abandoned. He relied on Geneva Vs Afribank (2013) 5 SCNJ (Pt. 479 at 521 and Help Vs Silver Anchor (2006) 2 SCNJ 178 at 186.

Counsel urged us to rely on Exhibits A1 to A12 which he said supported the case of Appellant.

On Issue 2, Counsel said the parties had agreed that the statutory right of occupancy No. LKN/RES/89/4269 belonged to Appellant; that the main issue to be resolved was the purported revocation of the said right of occupancy and the subsequent re-allocation of same to the 4th Respondent.

Counsel said that by Sections 43 and 44 of the Constitution, Appellant was entitled to own both moveable and immoveable properties and that his said property cannot be divested from him, without prompt payment of compensation. Counsel submitted that any law that takes away Appellant’s property without prompt payment of compensation on it is contrary to Constitutional provision and so illegal, null and void and can be set aside by the Court.

Counsel admitted that under Section 28 of the Land Use Act, the Governor possesses the power to revoke a right of occupancy after a grant, but that the exercise of that power has to be in compliance with the law. He relied on the case of Adole Vs Gwar (2008) 4 SCNJ 1 at 16; CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in River State (2006) 4 SCNJ 310 at 322; Ononuju Vs A.G. Anambra (2009) SCNJ 31 at 51.

Counsel relied on Section 28(2) and (3) of the Town and Country Planning Law, CAP145 Laws of Kano State, to say that the 2nd Respondent was enjoined to serve a notice of not less than 3 months, on the owner of the land, and not less than 1 month on the occupier of any building or land in respect of which any action is proposed to be taken by the Defendants; that that provision is mandatory; that Appellant, being the owner of the house covered by the Certificate of Occupancy – No. LKN/RES/89/4269 – was entitled to a notice from 2nd Respondent which would not be less than 3 months; that in this case, the 2nd Respondent gave Appellant only 24 hours to remove his building and clear the site of the debris. Counsel referred us to Page 324 of the Records of Appeal, and to the Notice of revocation on Page 328 of the Records.

Counsel submitted that the said purported revocation of Appellant’s right of occupancy and the demolition of his property did not comply with the law. He relied on the case of Provost Lagos State College of Education Vs Kolawole Edun (2004) 2 SCNJ 156 at 177. He said that the matter is made worse by non-payment of compensation by the Respondents. He relied on Olohunde Vs Adeyoju (2000) 6 SNCJ 470 at 505; Administrators Vs Eke-Spiff (2009) 2 SCNJ 119 at 140, where the Supreme Court held:
“… it is not only unconscionable to take away a piece of land already allocated and then re-allocate same to someone else without serving a notice on the earlier allottee, without paying that person compensation. It is also very unlawful and unconstitutional.”

On the need for service of Notice (including pre-revocation notice), Counsel relied on authorities to say that where such notice is not given before the revocation, such action is null and void. He relied on Nigeria Engineering Works Ltd Vs Denap Ltd (2001) 12 SCNJ 251 at 275; Foreign Finance Vs L.S.D.P.C (1991) 5 SCNJ 52 at 71.

Counsel said the Appellant was served with notice of revocation of his statutory right of occupancy as per Exhibit A6 (dated 3/9/2014), without advance notice to enable him make representation and without mention of any compensation; that the very next day, 2nd Respondent served Appellant with Exhibit A2 (dated 4/9/14) (Notice to withdraw structures, and giving him 24 hours to do so), and thereafter, they swooped on his property and demolished the same. Counsel said that the Respondents, by so doing, violated the provisions of the Land Use Act and the Town and Country Planning Law of Kano State. The Respondents also violated the judgment of Kano State High Court (Exhibit 8) (which earlier recognized and affirmed the Appellant’s title to the said land, as per the said statutory right of occupancy, as against the 5 Defendants therein; the judgment delivered on 2/6/04 in K/187/2000) – See Pages 331 – 340 of the Records of Appeal.

Counsel added that the 1st and 2nd Respondents also acted in violation of Section 44 of the 1999 Constitution, and so the whole exercise was unlawful, null and void, as the Appellant was not given fair hearing. He relied again on Nigeria Engineering Works Ltd Vs Denap Ltd (supra).

Counsel further submitted that the Respondents demolished Appellant’s property, less than the 24 hours stated in the notice served on him – See Paragraphs 33 – 35 of the Appellant’s Statement on Oath (Page 236 of the Records of Appeal); Counsel said that that evidence was not debunked by the Respondents; rather the DW1 under cross-examination, admitted that demolition done before the expiration of the 24 hours was wrongful – Page 112 of the Records.

Counsel urged us to hold that that was an admission against interest, and relied on Iyere Vs Bendel Feed (2008) 12 SCNJ (Pt.2) 414 at 445. Counsel said that the Respondents’ case supported the case of Appellant, and urged us to so hold, as per the case of Odukwe Vs Ogunbiyi (1998) 6 SCNJ 102 at 118.

Counsel added that since Appellant was not given adequate notice of the revocation, and before the demolition of his property, the Learned trial Judge was not justified to dismiss Appellant’s case; he said that Appellant was not given fair hearing. He founded on Paragraph 38 of his Amended Statement of claim and Paragraphs 40 and 41 of his Statement on Oath (Pages 229 and 237 of the Records of Appeal, respectively). Counsel referred us to Page 290 of the Records, where he said Respondents, in their pleadings, did not deny the above averments of Appellant, but rather asserted that the demolition was done in the interest of the general public!

Counsel referred us to Section 29(1) of the Land Use Act, which provides for payment of compensation, and to Section 38 of the Town and Country Planning Law for the same purpose. He also relied on Section 40(3) of the said Town and Country Planning Law. He re-asserted the case of Olohunde Vs Adeyoju (supra); Administrators Vs Eke-Spiff (supra) to say that the act of the Respondents violated Section 44(1)(a) of the 1999 Constitution, as amended, and was therefore null and void.

Counsel urged us to resolve the Issues for the Appellant and to allow the appeal, especially as Respondents were deemed to have admitted the claims of the Appellant, with the abandonment of their invalid statement on oath. Counsel relied on the case of Nwokoro Vs Onuma (1999) 9 SCNJ 63 at 79 and Salzgitter Vs Dosunmu (2010) 4 SCNJ 186 at 204, on the failure to lead evidence on pleadings, and admission of Plaintiff’s case.

RESOLUTION OF ISSUES
I shall consider this appeal on the two Issues donated by the Appellant and shall take them, together.
Did the Respondent adduce any valid evidence in defence of the suit, as per the statement on oath of the DW1, and was the trial Court justified to refuse to accede to Appellant’s claims at the trial in the circumstances of the case?

The frontloading system in trial of civil causes and matters was meant to speed up trials, and to furnish the parties with facts and evidence to be led at the trial, ahead of time, so that no party can be taken, unawares, or misled, in anyway. The system came to enhance and improve trial by pleadings, as the facts averred in the pleadings are also reduced into evidence (more or less) by way of affidavit evidence, which is built on the said facts, in what has come to be known as “Witness Statement(s) on Oath.” See Order 3 Rule (2) (8) of the Kano State High Court Civil Procedure Rules, which provides for the filing of writ of summons and statement of claim and same to be accompanied by written statement on oath of witnesses (affidavit) setting out the facts relied upon, and all the exhibits, etc. Of course, the statement on oath of the witness(es) must comply with the relevant laws relating to the taking of affidavit evidence, including Sections 109 and 112 of the Evidence Act, 2011.
By Section 109 of the Evidence Act:
“An affidavit sworn before any Judge, officer or other person duly authorised to take affidavits in Nigeria may be used in the Court in all cases where affidavits are admissible.”
And Section 112 of the same Act (Evidence Act) says:
“An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner or before a partner or clerk of his legal practitioner…”

The Respondents’ witness statement on oath in this case, as seen on Pages 292 to 297 of the Records of Appeal, alleged that the same was deposed to by one Junaidu Abdullahi (DW1) on 09/1/2017 and sworn to before a commissioner for oath who also endorsed the same on 9/1/2017 (See Page 297 of the Records).
That would have been taken to be regular, and in compliance with the rules of Court, but for the confession of the DW1 at the trial, who said under cross-examination:
“… As far as I am concerned, I am not aware of any standing structure on the fenced land. Yes, my statement on oath is based on the facts I give to my lawyer which (sic) reduced into writing. Yes, I signed same in my office. Yes, I will agree with you that several buildings have shops attached to them with residential houses…” (See Page 112 of the Records of Appeal)
The above confession simply busted the presumption of regularity, as it revealed that the DW1 was presented with the statement of facts, which his Counsel had reduced into writing, and after reading them in his office, he (DW1) signed it in his office (perhaps in the presence of his said lawyer); thereafter, the signed statement was taken, along with the other processes (the Defendants’ Amended Statement of Defence) for filing, by which time, the Commissioner for Oath endorsed the processes. (See Pages 286 to 297 of the Records)
As earlier stated, there would have been no problem about that procedure, if not for the unsolicited confession of the DW1, who boasted that he signed the statement on oath in his (DW1) office! That honest confession, however, dealt a devastating blow on the entire evidence of the Respondents, who had relied on that single witness statement, purported to be on oath, as it became invalid by reason of non-compliance with the rules governing affidavit evidence (not having been duly sworn to before a Commissioner for Oath, authorised to superintend over the oath taking). See the case of Nwakolobi Vs Ejemeli & Anor (2020) LPELR – 51357 CA, where we held:
On the issue of reliance on witness depositions (statements on oath) said to have been sworn to or signed at Counsel’s office, the DW1 and DW2 had actually under cross-examination, strangely, confessed that they did not sign the processes before the Commissioner for Oath, as required by law. DW1 said on page 155 of the Records: The deposition I made was signed by me I signed the deposition in my lawyer’s office. DW2 also said:
I thumb-printed my deposition. I thumb printed the said deposition in my lawyer’s office. (See page 157 of the Records of Appeal).
I think those confessions were fatal. They put a lie to the witness depositions, which had claimed to have been sworn to, before the appropriate authority (the Commissioner for Oaths). It means, the documents had been signed/endorsed by the witnesses before their Counsel in the lawyer’s office, before they were taken to the Registrar of the Court (Commissioner for Oath) for stamping and formalities by the Registrar.
That was a clear violation of the law and rules, which require such documents to be signed/endorsed before the Commissioner for Oath, as a mark of consent and evidence of actual submission to the Oath or affirmation, which the whole exercise purports to portray.
Where a document is signed, before being presented to the Commissioner for Oaths, for endorsement, it amounts to deceit and, in fact, perjury, in my view, as the Commissioner for Oaths does not even know and cannot identity the deponent. He also compromised his office, by so doing, making nonsense of the entire process. Sections 5, and 10 of the Oaths Act, Laws of the FRN 2004, and the Evidence Act, 2011, Section 112, made clear provisions on how to depose to affidavit before a Commissioner for Oaths or a Notary Public, and the procedures are meant to be followed, religiously.
By Section 112 of the Evidence Act, 2011:
An affidavit shall not be admitted, which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner.
See also the case of Buhari Vs INEC (2008) 12 SCNJ 1 at 91, where the Supreme Court struck out the depositions of Appellant’s witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was in violation of Section 19 of the Notary Public Act and Section 112 of the Evidence Act, 2011. See also the recent text Book on The Law of Affidavit Evidence by Ike Njoku, Five Clands Publishing Co. Ltd, Page xi (Foreword), 2022.
See also the case of Erokwu Vs Erokwu & Anor (2016) LPELR-41515 CA, where my Lord Ogunwumiju, JCA (as she then was, now JSC) held:
The deponent afterwards, signs in the presence of the Commissioner for Oaths, who witnesses that the Affidavit was sworn to in his presence. This explains the phrase. Before me, usually signed by the Commissioner for oaths. Any arrangement other than the above amounts to a nullity… When a deponent swears to an oath, he signs in the presence of the Commissioner for oaths, who endorses the document, authenticating the signature of the deponent. Signatures signed outside the presence of the commissioner for oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner of Oaths is not legally acceptable in Court. See also Chidubem Vs Ekenna & 12 Ors (2008) LPER -3913; (2009) ALL FWLR (Pt.455) 1692.
With such clear position of the law, it means the evidence led by the Respondents at the trial amounted to nothing, as same was invalidated by reason of non-compliance with the rules of affidavit evidence. The Respondents therefore had no credible evidence to support their pleadings in the case, and/or to contest the claims of the Appellant at the trial. The Respondents’ pleadings were therefore, deemed, abandoned, by reason of that tactical error of compromise in the making of the Respondents’ statement on oath, as confessed by DW1.

The law is trite that, a pleading from which no evidence is led or no credible evidence is adduced, is deemed abandoned. See the case of Geneva Vs Afribank (2013) 5 SCNJ (Pt.11) 479 at 522, where it was held: “… Only evidence led in respect of pleaded facts count as the Court, by the very principle are only empowered to consider cases consequent upon parties’ pleadings. Again, the principle is that pleaded facts in respect of which evidence is not led by a party is deemed abandoned…”
See also Help Vs Silver Anchor (2006) 2 SCNJ 178 at 186, which held:
“… If a party to an action fails to or does not lead evidence in support of the averments in his pleading, the averments would be taken as having been abandoned.”
That was the fate of Respondents’ pleading in this case, unfortunately.

Did the evidence led by Appellant not establish his claim, especially in the absence of any credible defence by the Respondents in rebuttal of the evidence of plaintiff?

Appellant’s claim, at the lower Court, as per the Amended Statement of claim, was that his certificate of occupancy No. LKN/RES/89/4269, issued to him by the government on 21/2/1996, was unlawfully revoked by the 1st and 2nd Respondents on 3/9/2014 and his property on the land, demolished, without due notice and without compensation paid to him, and the land was allocated to another person – 4th Respondent. He sought a declaration that such were wrongful acts, and for restoration of his said land, and for rebuilding of his demolished property, annual yearly rental on the property at ₦340,000.00 per year, from 2014 to date of judgment. In the alternative, he claimed:
(1) The sum of ₦35 million as cost of rebuilding the demolished property.
(2) ₦150 million damages for the embarrassment, emotional trauma and loss of earnings.
(3) Cost of this action. (See pages 230 to 232 of the Records of Appeal).

I think the Appellant had led credible evidence at the trial to show that he was the holder of the said certificate of occupancy, No. LKN/RES/89/4269, properly issued to him in 1996; that even when there was a challenge of his said title, earlier, which led to issuance of revocation letter to him on the land, sometime in 2000, he challenged the said revocation in Court, in Suit No. K/287/2000 and got judgment against the intruders, including some of the Respondents herein; Exhibit A8 represented the judgment of the Court in Suit K/287/2000, which affirmed his right over the land and right to the certificate of occupancy No. LKN/RES/89/4269, delivered on 20/5/2004. (See pages 331 to 340 of the Records of Appeal).

Appellant further led evidence to show that, on 3/9/2014 the 1st Respondent issued a notice of revocation of the said certificate of occupancy No. LKN/RES/89/4269; and another letter on 4/9/14 – a subsequent withdrawal of approval of building plan, given to him Appellant to build on the land, which building plan approval was issued since April 26th, 1996. Appellant said the said revocation letter was served on him on 4/9/14. The revocation letter was dated 3/9/2014 and the demolition letter dated 4/9/2014, Respondents demolished Appellant’s property before the expiration of the 24 hours, threatened.

The learned trial Court held that the Revocation Notice and the demolition of Appellant’s property were in order, when she said:
“In the course of cross-examination, DW1 said exhibit A3 is dated 8th September, 2014. While exhibits (sic) A2 is dated 4th September, 2014. That from these two exhibits the time of the Notice of revocation and the demolition of the structures is 24 hours.

It should be noted that the burden of proofing (sic) that the structures have been demolished before the expiration of 24 hours is on the plaintiff. It is trite law that he who asserts must prove. Since according to the plaintiff, when the officer of the 2nd Defendant went to demolish the said structures his tenants called and informed him of what was happening at the site over the phone. It would have been appropriate if he had called some of the tenants in whose presence the incident happened in order to give account or testify at least on the precise time the demolition was carried out. This having not been done, I hold that the said 24 hours has been accorded the plaintiff.” (See page 378 of the Records of Appeal)

With due respect to the learned trial Judge, I think she was wrong to consider whether or not the 24 hours window, given by the 2nd Respondent had been exhausted before the demolition exercise was carried out. The law does not stipulate 24 hours. There was no doubt that the demolition was carried out without due notice, or at short notice. Was it done in compliance with the law, and was the revocation order (Notice) properly issued and served?

By law, the government, through the Governor of a State, can revoke a right of occupancy granted to an occupier of land, but that can only be done in strict compliance with the relevant laws, not arbitrarily, in show of power and authority. The reason for such compliance with the laws, is obvious, as arbitrary exercise of the powers can result in incalculable damages to the victim, and cause insecurity to business and residency in the society. And any such revocation of right of occupancy can only be justified on the grounds of overriding public interest. And the victim must be served with due Notice of the revocation, and paid compensation, where necessary.
Section 43 of our National (1999) Constitution, allows every citizen the right to acquire and own immovable property, anywhere in Nigeria, and by Section 44(1) of the Constitution:
“No movable property or any interest in an immovable property shall be taken possession of compulsory and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria, except in the manner and for the purpose prescribed by a law that, among other things:

(a) requires the prompt payment of compensation therefor; and
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or Tribunal or body having jurisdiction in that part of Nigeria.”
The above law forms part of the fundamental human rights of every citizen. The Land Use Act 1978 is a well-known basic law that provides the manner in which ones interest or right in an immovable property may be acquired, compulsorily. See Section 28(1)(2) of the Land Use Act, which states:
(1) it shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a statutory right of occupancy means: –
a) the alienation by the occupier by assignment, mortgage, transfer of possession, sublease or otherwise of any right of occupancy or part thereof contrary to the provisions of the Act or of any regulations made thereunder;
b) the requirements of the land by government of the state or by a Local Government of the state, in either case for public purposes within the state, or the requirement of the land by the Government of the Federation for public Purposes of the Federation;
c) the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
Subsection 3, makes similar provisions for revocation of customary right of occupancy, while Subsection 4 specifies the grounds for such revocation of rights of occupancy. And by Section 29(1) of the Land Use Act, the owner of the revoked right shall be entitled to compensation over the property as at the date of revocation in respect of the unexhausted improvements on the land.
By Section 28(2) and (3) of the Town and Country Planning Law of Kano State, Cap 145, provisions are made as to the time frame for issuance of such notices of action against the owner or an occupier of property before action can be taken against him. Section 28(2) (3) states:
(2) “Before taking any action under this section, the Authority shall serve a notice on the owner and on the occupier of the building or land in respect of which the action is proposed to be taken and on any other person who, in its opinion, may be affected thereby, specifying the nature of and to take such action.
(3) The date stated in a notice served under this section as the date on or after which the intended exercise of power therein mentioned is intended to be begun shall be not less than three months when building is affected, and in any other case not less than one month after the date of service of such notice, and the Authority shall not do any act thing in exercise of such power in relation to the building or land mentioned in the notice before such date”
In the case of Adole Vs Gwar (20080 4 SCNJ 1 at 16, the Supreme Court acknowledged the power of the Governor to revoke a right of occupancy, but said that in exercising such power, the reasons listed in Section 28 of the Land Use Act and the laid down procedure therefore must be followed. It held:
“The right will be properly revoked if and only if the revocation is done under Section 28 of the Land Use Act, for any of the reasons stated therein. For whatever reason the right is being revoked, the revocation shall be signified by notice, duly issued and shall become valid when received by the person with such vested right. See Section 28(6) & (7) of the Land Use Act.”
In the case of Adole Vs Gwar (supra), my Lord Ogbuagu, JSC said:
“I am obliged to refer to or state the attitude of the Courts in interpreting or in the construction of expropriatory statutes including the Land Use Act, which was thoroughly dealt with by this Court, in the case of Abioye & 4 Ors. v. Yakubu & 5 Ors. (l991) 15 NWLR (pt.190) 130 AT 205, 206, – per Bello, C.J.N.; 222 – 223, – per Obaseki, J.S.C.; 231 – per Karibi- Whyte, J.S.C. and 251 – per Nnaemeka-Agu, J.S.C.; (it is also reported in (1991) 6 SCNJ. 69). Nnaemeka-Agu, J.S.C. stated inter alia, as follows: ” ……For it is settled that any law which has the effect of depriving a citizen of any right to his property must be construed, in the absence of clear words to the contrary, in such a manner as to preserve the citizen’s rights to the property. For this, see Din. v. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147 at page 184; (it is also reported in (l988) 9 SCNJ. 14): Walsh v. Secretary of State for India (1863) 10 H.L.C. 367; Belfast Corporation v. O.D. Cars Ltd. (1960) A.C. 490.”

And in the case of CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 4 SCNJ 310 at 332, the Supreme Court held:
“If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance… Therefore, since the revocation of the grant involves the deprivation of the proprietary rights and obligations led down by the Act must be strictly adhered to and complied with. And so, for a revocation of a right of occupancy to be valid it must be made strictly in compliance with Section 28 of the Land Use Act”
See also Ononuju Vs AG Anambra State(2009) 5 SCNJ 31 and Donli Vs Abdullahi & Ors (2022) LPELR – 58570 CA, where it was held:
Arguments have been made on the procedure for the revocation of a certificate or right of occupancy under the Land Use Act, circumscribed under Sections 28 (6) and (7) of the same Act. For ease of argument, the two sections are reproduced as follows: 28 (6) the revocation of a right of Occupancy shall be signified under the hand of a public servant duly authorized in that behalf by the Governor and notice thereof shall be given to the holder. 28 (7) the title of the holder of a right of Occupancy shall be extinguished on receipt by him of a notice given under Subsection (6) of this Section or on such later date as may be stated in the notice. The Court rightly in my view understood the fact that even where the holder of a right of occupancy is in breach of the terms of the grant, his right over the property remains valid until properly revoked pursuant to the law prescribed under Sections 28 (6) and (7) of the Act. In fact, the law is quite established in that where there is a subsisting right of occupancy over any plot of identifiable land, such right stands good against any other right, and the grant of another right of occupancy over the same piece of land will be invalid as the earlier grant subsists unless lawfully revoked. See Abdullahi vs. Bani (2014) 17 NWLR (pt. 1435) 1, and Ilona vs. Idakwo (2003) 11 NWLR (pt. 830) 53. It flows therefrom that the right of an existing holder or occupier of land is not automatically extinguished by the mere issuance of a certificate of occupancy to another person over the same piece of land, unless properly revoked or nullified before another one can be issued in its stead. The cases of Muazu vs. Unity Bank Plc (2014) 3 NWLR (pt. 1395) 512, Adole vs. Gwar (2008) 11 NWLR (pt. 1099) and The Registered Trustees of the Apostolic Church vs. Olowoleni (1990) 6 NWLR (pt. 158) 514 are all apposite. The consequence of a statutory right of occupancy issued, when a deemed right exists, and has not been revoked, is a grant in futility, as a grant over a piece of land where there exists a grant is not a possibility. See, CSS Bookshops Ltd vs. RTMCRS (2006) 11NWLR (pt. 992) 530, Omiyale vs. Macaulay (2009) 7 NWLR (pt. 1141) 597 and Dantsoho vs. Mohammed (2003) 6 NWLR (pt. 817) 457. Mr. Ajunwa, the learned counsel for the 1st respondent is therefore right in asserting that for a valid and subsisting right of occupancy to be revoked, the notice of such revocation shall be served on the holder of the right of occupancy in strict compliance with the provisions of Section 28 and 44 of the Land Use Act, and the case of Osho vs. Foreign Finance Corporation (1991) 4 NWLR (pt. 184) 157 amply supports that legal position. Thus in Orianzi vs. AG Rivers State (2017) 6NWLR (pt. 1561) 224, the Apex Court held that: “The terms of revocation as provided under Section 28 and 44 of the Land Use Act, must be strictly complied with and strict construction of the provision made. It is not the intendment or the intention of the Land Use Act that the Governor shall use his powers to grant land arbitrarily without regard to the existing ownership or holdings granted before the operation of the Act. The act provides checks and balances which must be observed before making any grant, the conditions under which such grants can be revoked and what follows after such revocation. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance… Therefore, for a revocation of a right of occupancy to be valid, it must be made strictly in compliance with Section 28 of the Land Use Act”. Also, in Lateju vs. Fabayo (supra) and Jegede vs. Citicon (Nig) Ltd (2001) 4 NWLR 112, the Court held that there cannot be a valid revocation of a right of occupancy where the holder of the land has not been served with the notice of revocation duly issued under Section 28 of the Land Use Act.” Per BARKA, JCA.

The Exhibit A6 was issued by Respondents on 3rd September, 2014 and served on the Appellant on 4/9/2014 – said to be Notice of Revocation of Statutory Right of Occupancy No. LKN/RES/89/4269. In the letter, the writer (Alhaji Yusuf Bello Dambatta Honourable Commissioner) said:
“By virtue of the powers conferred upon the Government of Kano State by Section 28 of the Land Use Act, Cap 15 LFN 2004, which powers were delegated to me vide instrument of Appointment DATED 14TH May, 2014, I Alhaji Yusuf Dambatta, Honourable commissioner Ministry of Lands and Physical Planning do hereby:
Notify you that the statutory right of occupancy No. LKN/RES/89/4269 hitherto granted to you over a piece of land at Tudun Wada Quarters is hereby revoked in view of the fact that:-
The site will be used by the Government for establishment of a school which will accommodate wider public interest as per the provisions of the Land Use Act, 1978.” (See Page 328 of the Records of Appeal).
The Respondents followed up the above letter with another letter, dated 4/9/2014 – Withdrawal of Building Plan Approval and Notice to remove structures. The letter stated (in part): “I am directed to inform you that this authority has received from the Hon. Commissioner… a notice of revocation of your statutory right of occupancy LKN/RES/89/4269… The revocation which was addressed to you and copied to us… dated 3rd September, 2014.
In view therefore, we have withdrawn the building approval No. KASEPPA/BP/96/160/6 dated 26th April, 1996. You are therefore requested to remove your structure and clear the site of all debris within 24 hours.”
On the face of the said letter (on Page 324 of the Records), there is a stamp that it was dispatched and endorsed on 5/9/14. But by the morning of 6/9/14, Appellant’s building and structures on the land were demolished!
None of the two letters said anything about compensation to the Appellant, and none explained the reason for such a hurry to demolish Appellant’s property, which Respondents acknowledged had been approved since April 1996!
Such show of power by the Respondents was extremely insensitive and callous, and was a clear abuse of office, in my view, especially as the rules governing such application of powers, as stated in Section 28 of the Land Use Act and Section 28(2) (3) of the Town and Country Planning Law of Kano State were grossly violated.
I am surprised that the learned trial Judge saw nothing wrong with such arrogant display of crude and brute force by the Respondents, in the name of doing official act. The Respondents were in flagrant breach of the law and the fundamental rights of the Appellant.
That the Respondents needed the land to build a School, which may be accepted to be in the overriding public interest, cannot be sufficient excuse to trample on the existing rights of Appellant, callously, as the Respondents did, without due notice. They maliciously demolished his building, for which approval had been granted, since 1996 (18 years) back, without payment of compensation, or even mention of need to do so.
In the case of The Administrators & Executors of Estate of Abacha Vs Eke-Spiff (2009) LPELR – 3152 (SC); (2009) 2 SCNJ 119, it was held:
“… it is not only unconscionable to take away a piece of land already allocated and then re-allocate same to someone else without serving a notice on the earlier allottee without paying that person compensation. It is also very unlawful and unconstitutional.”
And in the case of Registered Trustees of United Church of Nigeria (UCCN) HEKAN Vs Rogo Local Govt. & Anor (2021) LPELR – 56571 (CA), where the Respondents also displayed great insensitivity in acquiring the Appellant’s land, without paying compensation, we held:
“the Government must act, properly, complying with its laws for any acquisition of land to receive the blessing of the law/Court. Such compliance includes service of relevant notices of acquisition and/or revocation of existing rights of the landowners/occupiers and payment of adequate compensation for the unexhausted developments on the land to the holders/occupiers. See Makun & Ors Vs Fed University of Technology Minna & Ors (2011) LPELR-15514(SC) and; Provost Lagos State College of Education & Ors Vs Edun & Ors (2004) LPELR-2929 SC, where my Lord Niki Tobi, held: In Attorney-General of Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646, this Court held that by the provisions of Sections 5 and 9 of the Bendel State Public Land Acquisition Law before someone’s property, could be acquired compulsorily for public purpose: (a) notice of intention so to do must have been served upon him or the occupier or a person interested or upon such persons as were entitled to sell or convey the land; failing both, affixed conspicuously on the property; (b) the notice must be by personal service or by being left at his last known place of abode or business; (c) the notice served on him must be published once in the Bendel State Gazette, and at least two national daily newspapers circulating in Bendel State. It must be said that Sections 5 and 9 of the Bendel State Law is similarly worded as Sections 5 and 9 of the Lagos State law.” Per TOBI, JSC. See also Ogunleye Vs Oni (1990) LPELR 2342 SC, where it was held: “Unless the land is acquired compulsorily in accordance with the provisions of the Act e.g. for overriding public interest, or for public purpose by the Local Government or State Government. See S.28(1), (2) (3), and (4) whereby compensation must be paid, nobody shall be deprived of his land. The state has no right to dispossess a person of his property lawfully acquired without reason and that reason shall be in the public interest with adequate provisions made in the enabling statute to pay compensation that is just. So has the Land Use Act done.”

I see merit in this appeal, and so resolve the two Issues for the Appellant and allow the appeal.

I shall, however, consider the Appellant’s alternative prayers, in the circumstance that the 4th Respondent, Ministry of Education, Kano State, has already been allocated the Plaintiff’s property, ostensibly for overriding public interest. But for unlawfully revoking the certificate of occupancy of the Appellant and demolishing his property on the land, without compensation, I think Appellant is entitled to compensation, and damages.

I therefore award the sum of N50,000,000.00 (Fifty Million Naira) to the Appellant, as general damages for the wrongful revocation of his said statutory rights of occupancy and demolition of his property on the land, in the circumstances of this case. That, in my opinion, is what I think Appellant was entitled to, at the lower Court, as I hold that his case succeeded, as per the reliefs (a), (b), (c) and (d) sought, but damages grantable as per the alternative prayers.

I believe by the Alternative prayer, Appellant had opted to forgo the recovery of the land and the property, as per the Certificate of Occupancy No. LKN/RES/89/4269.

The Respondents shall pay the cost of this appeal assessed at Two Hundred Thousand Naira (N200,000.00) only to the Appellant.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft, the judgment of my learned brother ITA. G. MBABA, J. C. A. and I am in complete agreement with his reasoning and conclusion. A witness statement not made before one authorised to take Oaths, as DW1 admitted his statement was, is not oath to be countenanced. See CHIDUBEM VS EKENNA (2008) LPELR- 3913(CA).
In ASHIRU VS INEC & ORS (2020) 16 NWLR (PT. 1751) 416 AT 441, it was said by Eko, J.S.C. that:
“The law is that the depositions on oath must be signed by the deponent in the presence of the person authorised to administer Oaths, failing which the deposition on oath must be discountenanced.”

That is the lot of DW1’s purported Oath. Without the Oath of DW1, Respondents had nothing to counter the evidence of the Appellant.

It is for these and the fuller reasons set out in the leading judgment, which I adopt as mine, that I also allow the appeal and set aside the judgment of the lower Court.

I abide by all the consequential orders including that as to costs contained in the leading judgment.

ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother ITA GEORGE MBABA, JCA and I am in complete agreement with the reasoning and conclusion reached that the appeal is meritorious. I too allow the appeal and set aside the decision of the trial Court and abide by all other consequential orders as contained in the lead judgment.