CORAM
B.F.M. NYAKO FHC
PARTIES
USMAN KAYODE OLOMODA (Substituted for Alhaji Senator Ayinla Olomoda by Order of Court on 6/3/2018) APPELLANTS
1. MR. OLANIYI MUSTAPHA
2. DR. AHMED ALI
3. COMMISSIONER FOR LANDS & HOUSING KWARA STATE
4. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, PLATEAU STATE
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
Alhaji Senator Ayinla Olomoda (now deceased) was the original Claimant in the trial court. He was granted a parcel of land at No. 38 station, Road, Ilorin by the Kwara State Government for residential purpose, for a period of 99 years. The Certificate of Occupancy contained some special terms and condition, one which is for the Claimant to erect and complete on the said land, the buildings or other works specified in the detailed plans approved or to be approved by the Town Planning Authority or other officer appointed by the Governor, within a period of three years. After taking possession of the land, the Claimant fenced it and built a gatehouse at the entrance to the land. He therafter built a two bedroom bungalow and was farming on the remaining portion of the land. Subsequently, the said land was re-allocated to the 1st and 2nd Defendants/Respondents by the 3rd Defendant/Respondent and demolition and re-construction began on it. The Claimant claimed that he was not notified of the revocation, which the Respondents denied, and claimed a notice of revocation had in fact been sent to the Claimant by the 3rd Respondent on grounds of failure to fulfill the terms of the allocation. Consequently, the Claimant instituted an action at the High Court by way of Originating Summons but lost. Aggrieved by the decision, the Claimant appealed to the Court of Appeal, which dismissed his appeal. Further aggrieved, the Appellant (who was substituted with the deceased Appellant) has appealed to this court.
HELD
Appeal Allowed
ISSUES
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).
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). Whether the mode and the address to which the revocation Notice – Exhibit M0J3 was set met the requirements of section 44 of the Land Use Act having regard to Exhibits MOJ.l and MOJ 2. (Grounds 5 and 6).
Was the Court of Appeal right to have failed to make specific decision or finding on whether or not Exhibit M0J.3 is on instrument and/or evidence of revocation of Appellant’s land as was duly submitted for adjudication (Grounds 7).
Whether the Court below made proper use of the evidence before it in arriving at its conclusions on Appellants claim for damages.
RATIONES DECIDENDI
ORIGINATING SUMMONS – APPROPRIATE INSTANCE 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- PURPOSE OF THE LAND USE ACT, 1978
“The Land Use Act 1978 regulates contemporary land tenure In Nigeria. It is aimed among other things, at reducing unequal access to land and land 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.”
REVOCATION OF A RIGHT OF OCCUPANCY – POWER OF A GOVERNOR TO REVOKE A RIGHT OF OCCUPANCY
“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.”
INTERPRETATION OF WORDS IN A STATUTE- INTERPRETATION OF THE WORD “MAY” IN A STATUTE
“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: Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56 at 77 per Onnoghen JSC (as he then was).”
STATUTORY RIGHT OF OCCUPANCY- GROUNDS ON WHICH A GOVERNOR MAY REVOKE A STATUTORY RIGHT OF OCCUPANCY
“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 breach of any of the provisions which a certificate of occupancy is by section 10 of this Act deemed to contain;
a breach of any term contained in the certificate of occupancy or in any special contract made under section 8 of this Act.” –
“MAY”- INSTANCES WHERE THE USE OF THE WORD “MAY” SIGNIFIES MANDATORINESS
“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 Ugwuanyi 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 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 SC1MLR 427: Amadi v. N.N.P.C (2000) 10 NWLR (Pt. 674) 76: Ogidi v state 2005) 5 NWLR (Pt.918) 286; Odu’a Inv. Co. Ltd v.Talabi (1997) 10 NWLR (Pt. 523)1.”
REVOCATION OF A RIGHT OF OCCUPANCY – PREREQUISITE FOR THE EXERCISE OF THE POWER OF THE GOVERNOR IN THE REVOCATION OF A RIGHT OF OCCUPANCY
“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.”
NOTICE OF REVOCATION- PURPOSE OF GIVING A NOTICE OF REVOCATION OF A RIGHT OF OCCUPANCY TO THE AFFECTED PARTY
“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) 646: Nigeria Engineering Works Ltd v. Denap Limited (1997) 10 NWLR (Pt, 525) 481.”
SERVICE OF A NOTICE OF REVOCATION – WAYS OF EFFECTIVELY SERVING A NOTICE OF REVOCATION
“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, llorin 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 o prepaid registered letter addressed to that personat his usual or last known place of abode; or….”
CONCURRENT JURISDICTION OF COURTS – CONCURRENT JURISDICTION OF THE TRIAL AND APPELLATE COURTS IN THE EVALUATION OR INTERPRETATION OF DOCUMENTARY EVIDENCE
“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.”
RIGHT OF OCCUPANCY – POWER OF THE GOVERNOR TO REVOKE A RIGHT OF OCCUPANCY
“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 23 [5) (a) and (b) Land Use Act 1978”.
RIGHT OF OCCUPANCY – NEED TO ENSURE DUE COMPLIANCE WITH THE PROVISIONS OF THE LAND USE ACT IN THE EXERCISE OF THE POWER OF THE GOVERNOR TO REVOKE A RIGHT OF OCCUPANCY
“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.
CASES CITED
None
STATUTES REFERRED TO