Legalpedia Citation: (2014) Legalpedia (CA) 11208
In the Court of Appeal
Thu Feb 27, 2014
Suit Number: CA/IL/53/2010
CORAM
PARTIES
1. GOVERNMENT OF KWARA STATE
2. ATTORNEY GENERAL OF KWARA STATE
3. PERMANENT SECRETARY, MINISTRY OF LANDS AND HOUSING
APPELLANTS
1. IREPODUN BLOCK MANUFACTURING LIMITED
2. ALHAJI JIMOH ADIGUN
3. ALHAJI TOYIN OTTAN
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Claimants/Respondents filed an action against the Defendants/Appellants seeking a declaration that the 1st Claimant/Respondent was the bona-fide holder of Certificate of Occupancy No. KWS 4807 issued by the 1st Defendant/Appellant in 1991 and for an order of the trial Court setting aside the purported revocation of the subject-matter of the suit which was done by the Defendants/Appellants without properly serving notice of same on the Respondents. The case of the Appellants was that the Respondents breached the terms of the grant of the land in dispute having failed to put the disputed plot of land into use for a period of three years. The trial Court entered judgment for the Claimants/Respondents. Dissatisfied with the trial Court’s judgment, the Defendants/Appellants appealed to this Court.
HELD
Appeal partially succeeds
ISSUES
1. Whether the learned trial Judge was right when his Lordship held that the Respondents did not breach the terms and conditions contained in the Certificate of Occupancy No. KW 4807 as to warrant its revocation by the Appellants?
2. Whether the learned trial Judge was right when his Lordship held that there was no proper service of the notice of revocation on the Respondents?
3. Whether the trial Judge was right to have restrained the Appellants perpetually from performing their statutory dutyWhether on the weight of evidence before the trial Court the Respondents’ claims can be granted by the trial Judge.?
RATIONES DECIDENDI
EXERCISE OF THE POWERS OF A GOVERNOR-WHETHER CAN BE RESTRAINED
“Once the Governor acts within the confines of the provisions of the Act and for the purposes of this case Sections 28 and 44 of the Land Use Act, no Court can restrain the exercise of his powers”. PER ONYEMENAM, JCA
REVOCATION OF RIGHT OF OCCUPANCY- POWERS OF THE GOVENOR THERETO-HOW EXERCISED
“The exercise of the power of the Governor to revoke any right of occupancy under Section 28 of the Land Use Act, must be for the overriding interest of the Public and the holder of the right of occupancy being revoked must be given an advance Notice of the revocation”. PER ONYEMENAM, JCA
NOTICE OF REVOCATION-SERVICE OF -WHETHER PRESUMPTION OF RECEIPT OF A REGISTERED MAIL UPON POSTAGE IS APPLICABLE TO SERVICE OF NOTICE OF REVOCATION
“The general rule of presumption of receipt of a registered mail upon postage does not apply to service of Notice of Revocation where actual receipt is mandatory for a valid revocation of title”. PER ONYEMENAM, JCA
STATUTORY RIGHT OF OCCUPANCY-GRANT OF BY THE GOVERNOR-WHETHER EXTINGUISHES EXISTING RIGHTS ON THE LAND
“The general and quick impressive understanding of the power of the Governor over land under Section 5 (2) of the Land Use Act CAP 202 Laws of the Federation of Nigeria 1990 is that a grant of statutory right of occupancy by the Governor extinguishes all rights existing on the land, the subject of the right of occupancy at the time of the grant “.PER ONYEMENAM, JCA
CERTIFICATE OF OCCUPANCY- EXCEPTION TO SITUATIONS WHERE THE GRANT OF A CERTIFICATE OF OCCUPANCY DO NOT EXTINGUISH AN EXISTING GRANT
“It is particularly so, where there was an existing earlier grant. In such circumstance, any subsequent grant in consequence of the exercise of the revocation power of the Governor under Section 28 of the Land Use Act, must be done in strict compliance with the provisions of the Act”. PER ONYEMENAM, JCA
REVOCATION OF RIGHT OF OCCUPANCY- EFFECTIVE DATE THEREOF- SECTION 28 (7) OF THE LAND USE ACT
“By Section 44 of the Act, both personal and substituted services are provided for. However, by either mode of service, revocation only takes effect upon receipt of the Revocation Notice by the holder of the title sought to be revoked”. PER ONYEMENAM, JCA
NOTICE OF REVOCATION-IMPORTANCE AND PURPOSE OF
“The service of the Notice is of optimum importance and as such it will not be enough that there was a Notice of Revocation, but that; the person whose right is to be revoked was actually notified or informed of the process or steps being taken to extinct his title to the land”. PER ONYEMENAM, JCA
REVOCATION OF RIGHT OF OCCUPANCY-NATURE OF NOTICE GIVEN TO THE HOLDER
“The notice given to the holder must state the reason or reasons for the revocation so as to give the holder an ample opportunity to be heard on the intended deprivation of his proprietary rights by making any form of representation to the appropriate authorities”. PER ONYEMENAM, JCA
CERTIFICATE OF OCCUPANCY-REVOCATION OF-PURPOSE OF STATING REASON(S) FOR REVOCATION OF
“The purpose of stating the reason or reasons for revocation of a Certificate of Occupancy is to furnish the grantee with the reason or reasons why his right to the land shall be extinguished. While the combined effect of the requirements that the grantee shall be given an advance notice and that the notice shall state the reason or reasons for the revocation is to allow the holder of the right of occupancy to challenge, petition, protest or make any form of representation about the intended revocation. Its effect on the grantor is that, in a subsequent suit following a revocation of Certificate of Occupancy, the grantor cannot rely on reason or reasons not stated in the Notice of revocation to establish the validity or otherwise of the revocation. If this is permitted, the purpose of giving an advance notice and stating reasons for the intended revocation will be defeated as the grantee would have been shut out from making any representation on the reasons that were not brought to his knowledge”. PER ONYEMENAM, JCA
CASES CITED
A.G Bendel State V Aideyan (1989) 4 NWLR (PT.118) 646C.S.S Bookshops Ltd V. The Registered Trustees of Muslim Community in Rivers State (2006) 4 SC (PT 11) 142Dabup V. Kolo (1993) 9 NWLR (FT. 317) 25 at 279,Nigeria Engineering Works Ltd V Denap Ltd (1997) 10 NWLR (PT.525) 481Saude V. Abdulahi (1989) 4 NWLR (PT.16) 387 at 416
STATUTES REFERRED TO
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