Civil Cases Land Cases

SUIT NO: HOW/723/2013 – MRS VALERIE ANN FRANCES IREGBULEM, SOREM LAWRENCE IREGBULEM, KELEM ASHLEY IREGBULEM, AMANZE ELLIOT IREGBULEM, MRS SAMANTHA IREGBULEM QUINN (SUING AS THE BENEFICIARIES OF THE ESTATE OF DR LAWRENCE M. IREBGULEM (DECEASED) VS SLY EMMANUEL EZENWUKWE, THE GOVERNOR OF IMO STATE IMO STATE COMMISSIONER FOR LAND SURVEY & URBAN PLANNING, OWERRI CAPITAL DEVELOPMENT AUTHORITY, ATTORNEY GENERAL OF IMO STATE BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THE 7TH DAY OF DECEMBER 2021- Revocation of Certificate of Occupancy- Procedure of Revocation- Ambiguity in Revocation Notice- Timeliness of the Defense – Grounds for Revocation – Compensation and Fair Hearing – Compliance with Section 44 of the Land Use Act- Subsistence of Certificate of Occupancy.

Admin Editor

IN THE HIGH COURT OF IMO STATE

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

ON THE  7TH DAY OF DECEMBER 2021

                                                                   SUIT NO: HOW/723/2013

BETWEEN

  1. MRS VALERIE ANN FRANCES IREGBULEM
  2. SOREM LAWRENCE IREGBULEM
  3. KELEM ASHLEY IREGBULEM
  4. AMANZE ELLIOT IREGBULEM        PLAINTIFFS
  5. MRS SAMANTHA IREGBULEM QUINN

(SUING AS THE BENEFICIARIES OF THE

ESTATE OF DR LAWRENCE M. IREBGULEM (DECEASED))

                AND

  1. SLY EMMANUEL EZENWUKWE
  2. THE GOVERNOR OF IMO STATE
  3. IMO STATE COMMISSIONER FOR LAND

          SURVEY & URBAN PLANNING-       DEFENDANTS

  1. OWERRI CAPITAL DEVELOPMENT AUTHORITY
  2. ATTORNEY GENERAL OF IMO STATE

JUDGMENT

The Plaintiffs in their Amended Statement of Claim of 26-02-2019 claimed as follows:

  1. A declaration that the Plaintiffs, being the beneficiaries of the estate of the late Dr Lawrence M. Iregbulem, are entitled to the right of occupancy in and over the parcel of land known as, situate at and called Plot Number 44 in Housing Area 181 in New Owerri Layout, Owerri, Imo State, Nigeria and covered by a Statutory Certificate of Occupancy registered as Number 90 at Page 90 in Volume 19 of the Lands Registry in the office at Owerri.
  2. A declaration that the plaintiffs have exclusive rights to the use and occupation and possession of the said Plot Number 44 in Housing Area ‘B’ in New Owerri Layout, Owerri.
  3. A declaration that any purported lease, license or allocation of the said Plot Number 44 in Housing Area 18′ in New Owerri Layout, Owerri made by the 2nd – 5th Defendants or any of them or by any person under their direction to the 1st Defendant is null and void and of no effect whatsoever.
  4. An Order of perpetual injunction restraining the 1st Defendant either acting by himself or through his agents, servants, workmen or privies, from trespassing or further trespassing on the said Plot Number 44 in Housing Area ‘B’ in New Owerri Layout, Owerri or doing anything thereon inconsistent with the rights of the Plaintiffs or in any manner whatsoever or howsoever interfering with the rights of the Plaintiffs over the said parcel of land.
  5. An Order of perpetual injunction restraining the 2nd – 5th Defendants either acting by themselves or through their agents, servants, officers, workmen or privies, from doing anything on or with the said Plot Number 44 in Housing Area ‘B’ in New Owerri Layout, Owerri inconsistent with the rights of the Plaintiffs or in any manner whatsoever or howsoever interfering with the rights of the Plaintiffs over the said parcel of land without due process of law.
  6. N100,000,000 (One Hundred Million Naira) general damages against the 1st defendant only.

To prove their claim, the Plaintiffs called two witnesses.

The PW1 Linus Egereonu Iregbulam adopted his statements made on 30-9-13 and 24-2-2014 and 26 -7-19. Through him the plaintiff tendered

  1. Certificate of death of Iroegulem – Exhibit A
  2. Statutory certificate of occupancy affecting the land in dispute – Exhibit B
  3. Receipt No: 0013394 being payment they made to OCDA as registration fees for fencing of land in dispute- Exhibit C
  4. Receipt No 0013395 obtained from OCDA as fencing services -Exhibit D.
  5. Receipt No: 467375 which was a deposit paid to Imo State Government- Exhibit E
  6. Receipts from Imo State Government being payment for Survival Levy -Receipt 1330641 is marked exhibit F
  7. Development Levy paid and receipt – Receipt dated 30-9-94 is marked Exhibit G
  8. Ground rate 1980 – 1984 receipt-Receipt dated 1-9-94- Exhibit H
  9. Ground rate for 1980 – 1990 and 1991- 1991 -Receipts No: 558821 – Exhibit J
  10. N180 ground receipt- Receipt No: 558822 exhibit K
  11. Development levy- Receipt No: 001615 – Exhibit L
  12. N1800 as penalty for late payment of ground rate-Receipt No: 707389 – Exhibit M
  13. 00 as ground rate – Receipt No: 7-8388 – Exhibit N
  14. 00 as ground rate – Receipt No: 707337- marked Exhibit O
  15. Rent paid and penalties- Receipts Nos: 0380870, 391317, 067765, 067763, 0677640,380869 0380868 are marked exhibits P1 – P7.
  16. Demand notice from government of Imo State for 2005 – 2015- Demand notice No: 06407 -Exhibit Q
  17. Diamond Bank Teller No: 38637912 and official receipt No. 00157 – marked Exhibit R and R1.
  18. Recertification of Statutory Right of Occupancy of N20,000 receipt – Diamond Deposit Slip No: 38787486 -Exhibit S.
  19. Protest letter- dated 28-12-2012 -Exhibit T
  20. A letter written by Government to the 1st Defendant dated 20-2-2012 and A letter dated 28-1-2013 written to the DPO by officers of the 3rd – Exhibits U and V
  21. Pre-action Notice dated 9-802013 is admitted and marked exhibit W

Under cross examination he said: I said am one of the caretakers. Yes, I stood in and I am still standing as a care taker. This suit was commenced in 2013. I participated in this suit when it was in the other court. I testified as a witness before the transfer to this court. It is correct to say that late Dr. Lawrence Iregbulem participated also in the suit through me. It is also correct to say that at the point of his participation he was fit and proper as a medical doctor. Throughout the proceeding at the previous court, I mentioned or referred to document exhibited in paragraphs 8A, 8B, and 8C of the amended statement of claim

PW2 – Chief Livinus Ukaegbu testified and adopted his written deposition of 30th day of September 2013I deposed to a written deposition.

He was cross examineded and he said: It is not allocated to anybody. It was not reallocated to anybody. I do not know when it was allocated to the Plaintiff. I am not aware that the land was allocated to the plaintiff by the 3rd defendant.

DEFENCE’ CASE

The 2nd – 5th Defendants in disproving of the Plaintiff’s called one witness:

DW1 – Osuoha Loretta testified and adopted his written deposition made on 13th day of February 2014 through her the 2nd – 5th Defendant tendered:

  1. a document dated 20—2 2012 – exhibit X
  2. Revocation notice dated 2021 is marked exhibit Y
  3. Allocation of plot dated 23-5-2013 is marked exhibit Z
  4. A document dated 12-12-2011 is marked exhibit AA
  5. A Receipt dated 20-2-2012 – Exhibit BB

She was cross examined and he said: I have worked with the Ministry for 16 years. I am an experienced person. In the ministry if a plot of land is revoked the file in respect of the plot is marked revoked. And when it is so marked, it is further marked PA i.e., put away the file. If it is so marked and the file put away the owner of such a file, no further demands notice will be sent to the owner of that plot. I won’t be surprised to hear that after you claimed that the land in issue was revoked and given to another person, the ministry still sent demand notices because during the administration then, demand notices were been sent in bulk trough the lands and Land Imo Geographical Information Agency. All the ministries were not working in cross purposes to each other. I have visited the land in dispute. That was in 2014-2015 I cannot be really sure. I was not among the team that went for inspection of fallow lands. I am not aware the land in dispute was never fallow because something was built on it. I was not aware that a structure was in land.  Those visiting never told me. The Owerri Capital Development Authority is in charge of all development in Owerri Municipal. I do not agree that OCDA are in the best position to know if the land has a development or not. I am not aware that the OCDA has never queried the plaintiff in respect of all the devolvement he has carried out in the land in dispute. It has been revoked the evidence in the court. Revocation order has been served on the plaintiff then. The person in charged served it. I was not the one who served. Before the purported revocation order was made on 2-10-2012 the 1st Defendant had not trespassed in the land in dispute. I am not aware of that. I am not aware the order of revocation was never gazette by 30-9-2013, the day this suit was filed. I am not aware up to the present moment; the purported order of revocation has not been gazette. The registrar of deed is an officer in ministry of land. I am not aware that up to 28-1-2013 revocation order made on 22-10-2012 has not been communicated to an officer in the same building with him. I do not know one Akolam Onyekuru. I work in the ministry of land and not OCDA. I have come to this court to give evidence on behalf of the 2nd – 5th Defendants. I never said that there was no development on the land. But I was not the part of the team that went for the inspection. Paragraph 7 of my deposition was based on the report gotten from on the team. I am not aware Akolam Onyekuru filed a deposition before I came in on 12-2-2014 and claimed that the plaintiff developed illegal structure, but I claimed that the plaintiff made no development. Yes, I am a busy officer. I signed my deposition, in the High Court registry.

Plaintiff’s written address:

At the close of trial, the counsel in the matter filed and exchange final written addresses. The plaintiff formulated the following issues for determination:

  • Whether the revocation by the 2nd Defendant of the statutory right of occupancy that he granted to Dr. Lawrence Iregbulem over the land in dispute is in accordance with the provisions of the Land Use Act.
  • Whether the subsequent grant of the land in dispute by the 2nd defendant to the 1st defendant is valid.
  • Whether the plaintiffs are entitled to the reliefs that they are seeking.

On Issue (1), the Plaintiffs’ counsel reproduced Section 28(2) (4) (5) of the Land Use Act. According to the counsel, the 2nd to 5th Defendants tendered Exhibit Y, which is a public notice dated 2/10/2012 and embodying the revocation of rights of occupancy affecting the land in dispute. In Exhibit Y, the Governor anchored the revocation of the right of occupancy of Dr Iregbulem thus:

“All that parcel/plots of land described in the Schedule hereto are required generally for Public interest and particularly for the contravention/default of development clause/covenant of the Statutory Certificate of Occupancy are now revoked.”

The Schedule included Plot 44, Housing Area ‘B’, New Owerri (the land in dispute).

The counsel submitted that the notice contained in Exhibit Y suffers from fundamental flaws. First, the revocation is not for overriding public interest as required by subsection (2) of section 28 of the Land Use Act, but for public interest simplicita. Second, the Notice failed on its face to disclose the nature of the public interest as enumerated in the self-same subsection (2). Third, the Notice failed to disclose and particularizes precisely the nature of the contravention/default of development clause/covenant so as to enable the holder of a right of occupancy know exactly what he is being accused of doing wrong or not doing. According to the counsel, Section 50 of the Land Use Act defines “public purposes”

It is submitted that the public purpose for which a right of occupancy is revoked must be disclosed on the face of the notice of revocation referred to section MR A.O. OSHO & ANOR. V. FOREIGN FINANCE CORPORATION & ANOR (1991) 4 NWLR (part 184) 157

The court is urged to find and hold that Exhibit Y, having failed to disclose the public purpose for which the grant made to Dr. Iregbulem was revoked, did not comply with the letters and the spirit of the provisions of the Land Use Act related to revocation of right occupancy.

It is submitted that although Exhibit Y did not specify the exact provision{s) of the Statutory Certificate of Occupancy (Exhibit B) that the holder violated, which omission is fatal to the case of the 2nd to 5th Defendants, the 2nd to 5th Defendants harped on the alleged failure of Dr. Iregbulem to develop the land in dispute, the Address of the learned Counsel to the 2nd to 5th Defendants cannot override the contents of Exhibit Y.

It is submitted that the 2nd to 5th Defendants have not been consistent in their allegation that Dr. Iregbulem failed to develop the land in dispute. The counsel made reference to paragraph 6 of the 2nd to 5th Defendants’ Statement of Defence dated 10/5/2014, prepared by N.N. Ekedebe (Mrs.) and filed on 17/2/214, to the effect that the claimant developed illegal structure without any approval and permit from the 4th defendant and Paragraphs 6 and 7 of Mrs. Loretta Osuoha written statement on oath filed on 13/2/2014 of her deposition stating emphatically that the land in dispute was not developed.

It is submitted that the inconsistency of the 2nd to 5th Defendants, as it affects whether or not Dr. Iregbulem developed the land in dispute, makes their defence unbelievable. A plot of land which was stated to have “illegal structure” on it cannot be a “fallow space” at the same time. Accordingly, the court is urged to dismiss the evidence of DW1 (Loretta Nwosu), even as she testified under cross-examination that she visited the land in dispute only in 2015, long after the filing of this suit. No other witness came forward to testify positively that the land in dispute was left fallow and bushy. She testified that “I was not among the team that went for the inspection of fallow land.” Accordingly, her evidence was a mere hearsay.

It is submitted that a document filed in Court remains relevant, even if it is withdrawn, for the purpose of assessing whether a party has been consistent with his case. In that circumstance, the Court can take judicial notice of its proceedings, including documents filed by the parties in a suit. See NWOKORO V. ONUMA (1999) 9 SC 59 @ 64, 66; AGBAHOMOVO V. EDUYEGBE (1999)3 NWLR (part 594) 170 @ 179ff; (1999) 2 SC 79.

It is submitted that on the other hand, the plaintiffs have been consistent in their assertion that the land was developed by Dr. Iregbulem. Referred to paragraphs 7 and 9 of the Amended Statement of Claim and the written depositions of PW1 and PW2. The 2nd to 5th Defendants did not challenge the averments relative to the development of the land in dispute contained in the Amended Statement of Claim and the several depositions and oral testimonies of the PW1 and PW2. Referred to PROVOST, LAGOS STATE COLLEGE OF EDUCATION & ORS. V. DR. KOLA WALE EDUN & ORS. (2004) 2 SC (part II) 17 @ 29 – 30,

It is submitted that, the developments that Dr. Iregbulem made on the land in dispute, including perimeter fencing and erection of a gate, were improvements as defined by section 50 of the Land Use Act.

It is submitted that service of the Notice of Revocation on the holder of a right of occupancy, like Dr. Lawrence Iregbulem, is imperative. The earlier Statement of Defence filed by the 2nd to 5th Defendants on 17/2/2014 never raised the issue of revocation and service of the notice of revocation. It is the latter Statement of Defence filed by the 2nd to the 5th Defendants that raised the issue of revocation and service of the notice of revocation in its paragraphs 7, 14 and 17(d). (Again, showing inconsistency in their defence.) That prompted the Plaintiffs to file a Reply dated 21/2/2014 and filed on 24/2/2014, together with a Further Statement on Oath made by Linus Egereonu Iregbulem (PW1): see paragraphs 2, 5 and 6 of the Reply and paragraphs 6, 7, 9 and 10 of the Further Statement on Oath made by Linus Egereonu Iregbulem (PW1). Having joined issues on the service of the notice of the revocation, the onus was on the 2nd to the 5th Defendants to prove that notice of the revocation was valid and that it was served on Dr. Iregbulem. The 2nd to 5th Defendants failed woefully to discharge that burden.

According to the counsel, when DW1 was cross – examined in Court, she responded that she was not the one who served the revocation notice. She deposed to a fact that was not within her knowledge but failed to disclose the source of her information. The court is urged to disregard her evidence as hearsay and a violation of section 115 of the Evidence Act 2011: see NAHMAN V. WOLOWICZ (1993) 3 NWLR (part 281) 443, esp. @ 456 – 457; GOVERNOR OF LAGOS STATE V. OJUKWU (1986) 2 SC 277, esp. @ 304 –

According to the counsel, worse is DW1 disclosure, under cross – examination that she did not know whether the notice of revocation was gazetted; and no such gazette was tendered. Even if the notice was gazetted and the gazette was tendered in Court, that would have not been sufficient notice. Relied on SULE ADUKWU & 4 ORS. V. COMMISSIONER FOR WORKS, LANDS AND TRANSPORT ENUGU STATE & 3 OTHERS (1997) 2 NWLR (part 489) 588 @ 600, Tobi, JCA (as he then was, latter JSC)

Again, the person who purportedly served the notice was not called to testify as to how he served the notice, who received the notice, the date he served the notice and where he served the notice. The person who served the notice was a vital witness and failure to call him to testify is fatal to the case of the Defendants: section 38 of the Evidence Act; FRAMO V. DAODU (1993) 3 NWLR (281) 372, esp. @372 – 377; ATTORNEY GENERAL, RIVERS STATE V. ATTORNEY GENERAL, CROSS RIVER, STATE (2011) 8 NWLR (part 1248) 31, sc. The court is urged to find and hold that there was no credible evidence at all of the service of the notice of revocation on Dr. Lawrence Iregbulem.

When a party denies receiving a document, as in the present case, the person who asserts that he served the document on that party has the duty to prove the service. Relied on NLEWEDIM V. UDUMA (1995) 6 NWLR (part 402) 383 @ 394

In the present case, there is no witness credible enough to testify that Dr. Iregbulem was served with the Notice of revocation. DW1 testified that she was not the one who served the Notice and no witness came forward to testify positively that he served the Notice on Dr. Lawrence Iregbulem. The court is urged to find and hold that Exhibit Y (the Notice of revocation) is worthless as it was not served on Dr. Lawrence Iregbulem.

It is submitted that the Land Use Act has made the service of notice of revocation on the holder compulsory. Referred to Subsection (6) of section 28 of the Land Use Act. The Act, in section 44, made provisions on methods of effecting service of any notice required under the Act.

According to the counsel, the crucial question is: what is the effect of the failure of the 2nd Defendant to serve the notice of the revocation on Dr. Iregbulem? Relied on C.S.S. BOOKSHOPS LTD. V. THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 4 S.c. (Part II) 142 @ 162,

The court is urged to hold that, in view of the failure of the 2ND Defendant to serve the notice of revocation on Dr. Lawrence Iregbulem, the revocation was not exercised in compliance with the provisions of the Land Use Act: SULE ADUKWU & 4 ORS. V. COMMISSIONER FOR WORKS, LANDS AND TRANSPORT & 3 OTHERS, supra. The 2nd defendant, therefore, denied Dr. Lawrence Iregbulem the right to fair hearing enshrined in section 36 of the Constitution of the Federal Republic of Nigeria, 1999 before his right of occupancy over the land in dispute was purportedly revoked by the 2nd Defendant “with immediate effect”, especially where the 2nd defendant had alleged that Dr. Lawrence Iregbulem had breached the terms of the statutory certificate of occupancy. Relied on MR A.O. OSHO & ANOR. V. FOREIGN FINANCE CORPORATION & ANOR, supra, at page 188

On Issue 2, it is submitted that, in view of the violation of the provisions of the Land Use Act by the 2nd defendant in the circumstance, the subsequent purported grant of the same land made to the 1st Defendant by the 2nd defendant cannot stand. Since the 2nd Defendant failed woefully to comply with the provisions of the Land Use Act relating to revocation and service of the notice of revocation, the purported grant he made to the 1st defendant became vitiated, null and void. The court is urged to so find and hold. Relied on the dictum of Obaseki, JSC in OSHO V.FOREIGN FINANCE CORPORATION, supra, @ 187,

Where the revocation has failed, as in the present case, the 2nd defendant cannot validly transfer title to the 1st defendant. See CSS BOOKSHOPS V. MUSLIM COMMUNITY, RIVERS STATE, supra. The court is urged find and hold that the 1st defendant has not acquired any title over the land and in dispute.

On Issue 3, it is submitted that it has been the general principle of law that in a claim for declaration, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence. Whenever a Court is called upon to make such a declaration, it is obligatory on such a party claiming to be entitled to the declaration to satisfy the Court by evidence and not by mere admission in the pleadings of the defendant that he is so entitled: MOGAJI V. CADBURY NIG. LTD. {1985} 7 SC 31.

According to the counsel, notwithstanding the above general principle of law, where there are facts and factors in the defendant’s case which support the plaintiff’s case, the plaintiff is entitled to rely on same: CHIEF FALADE ONISAODU & ANOR. V. CHIEF OSUMO ELEWUJU & ANOR. {2006} 7 SC {part II} 45.

It is submitted that one of the recognized ways of proving title to land is by the production of a valid instrument of title. See IDUNDUN V. OKUMAGBA {1976} 9-10 SC 227; PIARO V. TENALO {1976} 12 SC 31 @ 37; NWADIKE V. IBEKWE {1987}12 SC 12. The plaintiffs tendered Exhibit B {the statutory certificate of occupancy of Dr. Iregbulem}. In the present case, where the 2nd to 5th Defendants have, in their joint statement of defence and in the deposition of DW1, admitted the grant of the land in dispute to Or. Iregbulem by the 2nd defendant and the validity of Exhibit B, the onus was on them to prove that Dr. Iregbulem was lawfully divested of his interest in the land in dispute. The Defendants failed woefully to prove that, having not complied with the provisions of the Land Use Act as they relate to revocation of right of occupancy and service of notice of revocation. Hence, the plaintiffs, as beneficiaries of the estate of the late Dr. Iregbulem are entitled to all the declaratory reliefs that they are seeking. See also sections 4 and 15 of the Administration of Estates Law, Laws of Imo State, 1994; Orders 29, 30(1) and 31 of the High Court of Imo State (Civil Procedure) Rules, 2017. Moreover, see paragraph 1 of the Amended Statement of Claim and the Order of this Court granting leave to the plaintiffs to substitute Dr. Lawrence Iregbulem as plaintiffs in this suit.

It is submitted that the injunctive reliefs sought are consequential and should be granted by the court.

On the claim for damages against the 1st defendant, it is submitted that the plaintiffs have shown by their pleadings and the evidence of PW1 and PW2 that Dr. Iregbulem was in possession of the land in dispute by virtue of a grant made to him by the 2nd defendant. He never ceased to be in possession. Trespass to land in law constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession. The 1st defendant entered the land in dispute by virtue of a void transaction between him and the 2nd Defendant. See SOLOMON & ORS V. MOGAJI & ORS. {1982} 11 SC 1 @ 37 – 38, per Obaseki, JSc.

Accordingly, it is submitted, the 1st defendant’s entry to the land in dispute was illegal ab initio. As shown in paragraphs, 12, 13 and 14 of the Amended Statement of Claim and the evidence of PWl and PW2, which evidence was not disputed by the 1st defendant, the 1st defendant entered the land in dispute in a most violent and aggressive manner. The forceful manner of entry only serves to aggravate the act of trespass and enhances the quantum of damages recoverable. Moreover, there is evidence that the 1st defendant caused an extensive damage to the property of Dr. Lawrence Iregbulem. The plaintiffs are, therefore, entitled to the award of the damages they claim against the 1st defendant. The court is urged to award same to the plaintiffs.

It is submitted that that there is nowhere in the Notice of Revocation {Exhibit Y} that it was stated in clear and specific terms which of the provisions of section 9{4} of the Land Use Act that Dr. Lawrence Iregbulem violated. Even assuming that Dr. Iregbulem violated any of the provisions of the Act or all of the provisions of the Act, which are denied, he was entitled to a notice prior to the revocation as required by the provisions of Sections 28(6) & (7) and 44 of the Act to enable him to defend himself, as he was entitled to, under the Nigerian Constitution. The 2nd defendant’s failure to comply with the provisions of the Act makes the revocation void. See the dictum of Obaseki, JSC in OSHO V.FOREIGN FINANCE CORPORATlON, supra, @ 187.

It is submitted that that the documents frontloaded and admitted as exhibits were properly admitted because they are RELEVANT to the suit: see section 1 of the Evidence Act. Admissibility is governed by relevance. Once the documents are considered to be relevant to the suit, the court rightly admitted them in evidence. The court in urged to accord them their full value and weight. If the argument of the 2nd to 5th Defendants were to be accepted, then the certified copy of the Death Certificate of late Dr. Iregbulem (Exhibit A) would not be given any value! Furthermore, no law or rule of law prohibits a party from amending his pleadings to incorporate a fact or facts which came to light after he has filed his case or during the course of the hearing of the suit, provided the fact/facts is/are relevant to the suit. Relied on  CHIEF OF DEFENCE STAFF, GENERAL O.A. AZAZI & ANOR. V. MAJOR GEN. OVO ADHEKEGBA (2009) ALL FWLR (part 484) 1545. The receipts, the Demand Notice and the bank slips are relevant to show that Dr. Iregbulem paid his rents and levies affecting the land in dispute. Most especially, the Demand Notice and payment of the monies made on the Demand Notice even after the purported revocation, shows that the 2nd defendant understood the futility of the purported revocation. In a landlord and tenant relationship, a landlord who receives rents from the tenant during the pendency of notice to quit is deemed to have waived the notice.

It is submitted that the alleged inconsistency in the evidence of PW1 during cross-examination is quite irrelevant and does not in any way diminish the strong case of the plaintiff or enhance the porous case of the 2nd to the 5th Defendants. What is in issue is whether or not the 2nd defendant complied with the provisions of the Land Use Act when he purported to revoke the right of occupancy of Dr. Lawrence Iregbulem over the land in dispute: see ALHAlI MUSTAPHA BUKAR MULIMA & ANOR. V. HAJlA AISHATU USMAN & ORS (2014) 1 – 2 SC (part 11I}123, esp. @ 159, lines 10 – 20.

Defence Counsel’s address:

The counsel to the 2nd – 5th Defendants in her address formulated issue for determination as: FROM THE TOTALITY OF EVIDENCE AND PLEADINGS OF THE PLAINTIFF, WHETHER THE PLAINTIFFS ARE ENTITLED TO THEIR CLAIMS AGAINST THE 2ND -5TH DEFENDANTS.

According to the counsel, it is trite that for a claim of declaration of title to succeed, the Plaintiff must establish his claim on the strength of his case and not on the weakness of the defence. A declaratory relief is a discretionary remedy and granted subject to certain conditions, one of such conditions is that the party seeking the relief must adduce evidence upon which the relief is granted or denied, notwithstanding an admission in the defendant’s pleadings. The court has to be satisfied on the evidence led by the Plaintiff that he is entitled to the relief he seeks. Referred to Onovo V Mba (2014) 14 NWLR (pt 1427) page 391.

It is submitted that from the totality of the evidence and pleadings adduced in the instant case, the Plaintiffs failed to prove their case. That by virtue of the provisions of section 9(4) of the Land Use Act 1978, the terms and conditions of a certificate of occupancy granted under the Act and which has been accepted by the holder are enforceable against the holder and his successors in title. See the case of Obi vs Minister of F.C.T (2015) 9 NWLR (pt .1465) p.610. See also section 28 (5)(a) (b) & (c) of the Land Use Act.

The counsel referred to Section 4 of Exhibit B.  Which was reproduced thus: 4        . To erect and complete on the said land within 2 (two) years from the date of commencement of the right of occupancy, buildings or other works specified in the detailed plans approved by the Chief Land Officer or other officer appointed by the Military Administrator in that behalf.

It is submitted that having regard to the above, and placing reliance on the golden principle of interpretation of statutes which states that where the words used in a statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statutes. See the case of Dankwambo vs Abubakar (2016) 2NWLR part 1495 page 157 at page 180 Para D-G.

It is submitted, that once the words used are clear and free from ambiguity, they should be given their natural meaning without any embellishments. See the case of Assams vs Ararume (2016) lNWLR Part 1493 page 368 at 387 para A-C; (2016) All FWLR Part 821 1481 at 1492 Para F-G.

According to the counsel, it is crystal clear that the words used in Section 4 of Exhibit B is clear and unambiguous and must be given a simple, lucid and clear interpretation. The word “erect” is defined by Black’s Law Dictionary, ninth edition as “to construct”. In the same vein, the word “complete” is defined by online English dictionary as “to finish”, “to make done”, “to reach the end”. Given the simple interpretation of section 4 of Exhibit B, the question is, did the Plaintiffs erect, complete the development on the land in dispute within the time frame granted them to do so? The answer, to the above poser is in the negative. It is undoubtedly clear from the pleadings and evidence before this Honorable Court that the Plaintiffs neither erected, nor completed development on the land in dispute which necessitated the reaction of the 2nd to 5th Defendants on the issue. See Exhibit AA. The counsel referred to paragraphs 6, 7 and 9 of the amended Statement of Claim. For ease of reference, the said paragraphs are reproduced.

  1. 6. Some years after the allocation, the servants or officers of the 3rd and 4th defendant showed the land in dispute to late Dr Lawrence M. Iregbulem after they had created access roads to the land in dispute. Thereafter, the late Dr Lawrence M.Iregbulem took full possession of the land in dispute, and was in possession until his death on 2/4/2018.
  2. The late Dr Iregbulem fenced the land in dispute with the  of the 4th defendant On or about 8/12/2000, the late Dr Iregbulem paid to the 4th defendant the sum of N1500 (one thousand and five hundred naira) as registration fee for the fencing of the land in dispute for which payment the 4th defendant issued him receipt NO. 0013394 dated B/12/2000.At the trial of this action the Plaintiffs shall tender and rely on this receipt NO;0013394 dated B/12/2000, copy of which is annexed hereto as Annexure 4.
  3. The late Dr Iregbulem erected an iron and mental gate at the entrance of the land in dispute. Furthermore/ the late Dr Iregbulem started building a service house on the land in dispute to provide a temporary shelter for his caretaker, Chief Livinus Ukaegbu/ and the workmen who were to start building the main house. As at the time when the 1st defendant started trespassing on the land in dispute/ the service house had reached roofing stage.

According to the counsel, assuming without conceding that the Plaintiffs accessed the land in dispute in the year 2000, it is still sufficiently clear that the Plaintiffs failed to discharge their obligation as provided in section 4 of exhibit B. Paragraph 9 of the amended statement of claim clearly stated that the “workmen were to start building the main house”. Thus, the averments in the said paragraph suffices that the key words used in section 4 of exhibit B were never discharged by the Plaintiffs. From the year 2000 to 2012 when the land in dispute was revoked, spanned a whole decade and two years. Placing reliance on section 4 of exhibit B, we submit that the Plaintiffs failed to erect and complete development on the land in dispute within two years of accessing the plot, which invariably negates the primary covenant of exhibit B among the parties.

It is submitted that it is trite principle of law that a Plaintiff should prove his case through credible evidence and not rely on the weakness of the defendant’s case even where the defendant did not lead any evidence. See the case of Health Care Products (Nig) Ltd v Bazza (2004) 3 NWLR part 861 page 582 at 605 -606 Para-H-D per Sanusi JCA; The refusal of a defendant to testify or prove his case does not alleviate the primary burden on the Plaintiff to prove his case. See Atunwa v Ladenika 228 -229 para-H-A per Mohammed JCA (as he then was).

According to the counsel, it is already well-established principle of law that the onus is always on the Plaintiff who seeks declaratory relief to establish his claim and that it is not open to him to rely on the weakness of the Plaintiff’s case. See the case of Duniez Nig Ltd vs Nwakhoba (2008) 18 NWLR (Part 1119) at 361. Emenike Vs Peoples Democratic Party (2012) 12 NWLR (Part 1315) 556.

It is submitted that this action is predicated on revocation of rights of occupancy by the 2nd and 3rd Defendants due to lack of development. The 4th defendant is the Agency charged with the function of planning and development of Imo State Capital Territory. That being the case, the Plaintiffs failed to lead evidence to establish the fact that they obtained a building approval in compliance with the law establishing the 4th defendant and as a pre-requisite for development. Referred to section 14 of Owerri Capital Development Authority Edict 1977. Written approval in this regard includes building approval which evidences a process of initiating full development on a plot of land.

It is submitted that when an Allotee fails to develop a plot allocated to him via a Certificate of occupancy within two years, the Governor or Minister responsible may revoke the plot for such failure. see the case of Obi v Minister, FCT (2015) 9 NWLR (PT 1465) P.610. The court is urged, in the light of the foregoing, to so hold and dismiss this suit.

It is submitted, consequently that the purported exhibits frontloaded after the death of the Plaintiff, Dr Lawrence Iregbulem, be expunged as same lacked probative value.

The attention of the court was drawn to the chronicle of events of this suit. This instant suit was commenced in 2013. The Plaintiff closed his case before the subsequent transfer of the Case to your Lordship. See paragraph 4 of the second additional statement on oath by Mr Linus Egereonu Iregbulem. It is on record that throughout, the said proceedings, there was no mention of the purported exhibits until the subsequent demise of the Plaintiff in 2018.  The court is referred to the cross examination of PW1 by the 2nd to 5th Counsel on 25th November,2020. The concluded that following from the above, it is apposite to state that the witness is not a witness of truth and his evidence ought to be expunged and disregarded.

The counsel referred the court to paragraph 9(a)-(q) of the second additional statement on oath by Mr Linus Egereonu Iregbulem (PW1). It is evidentially clear that PW1 is a witness in this suit by virtue of section 205 of the Evidence Act, 2011. That being the case, he swore to say the truth and nothing but the truth. It is also interesting to note in this regard that PWI is the Attorney to the deceased Plaintiff at the commencement of this suit. See the Cross examination of PW1 by the 2nd to 5th Counsel, dated 25th November, 2020.

It is submitted in the light of the foregoing, that where the witness of a party gave inconsistent and or contradictory evidence on material facts, their evidence on the point must be regarded as unreliable and must be rejected. See the case of Osadim vs Tailor (2010) 6 NWLR Part 1189 page 155 at 180.

It is submitted, finally, that in view of the settled law that oral evidence of a witness must be accurate in the sense that it brings out the facts as averred in the statement of claim. In other words, the oral evidence must dance to the same music as in the statement of claim. Where oral evidence does not bring out the facts in the statement of claim or where there is material contradiction, the court is entitled to hold and will hold that the Plaintiff did not prove his case. Here the court uses the statement of claim as the reference point because that is where the facts of the case originally germinated from. See the case of Boniface Anyika & Co. Lagos (Nig) Ltd vs Uzor (2006) 15 NWLR Part 1003 , Page 560 at 572, Para B-C, Per Tobi lSC.

According to the counsel, the following the question need to be answered.

  1. Did the Plaintiff, Dr Lawrence Iregbulem referred to or mentioned the Exhibits in paragraph 8A, B and C of the Amended statement of Claim from 2013 to 2018.
  2. Is the oral evidence of PWI accurate with the averment in paragraph 8A of the amended statement of claim, which purportedly laid foundation for the birth of the Exhibits E, G, H, J, K, L, M, N, O, P1-P7 7.
  3. Having regard to the above submissions, did the Plaintiff discharge his obligation or covenant in items 1, 2 and 3 of exhibit B? In response, we submit that the answers to the above questions are in the negative.

In conclusion flowing from above and from the totality of the evidence adduced, the court is urged to hold that the Plaintiffs failed to prove their case. The Court is urged to dismiss this suit for being frivolous.

RESOLUTION OF MATTER

I think the issue here is very narrow in the sense that there is not contest of whether the land in issue was ab initio allocated to the Plaintiffs and certificate of occupancy issue to him. The issue is whether this allocation and consequent certificate of occupancy was revoked?

While the Plaintiffs are saying it has not been revoked and could not have been reallocated to anybody including the 1st Defendant, the 2nd – 5th Defendants say it has been revoked and reallocated to the 1st defendant. The 1st Defendant filed defence but he did not call any witness or cross examined any of the witnesses

On the 11-3-2020 the following transpired:

Court:       Was hearing notice served on the 1st Defendant

Ezebuiro:  There is no need to serve the 1st Defendant with hearing notice since he has been served before AG River State v Gregory oil Ltd (2006) 6-7-SC 13 Afonja Commercial bank Nig ltd v Akpan 2002 16 NWLR (Pt 792) 154 at 170 Tonason Transport Ltd v CM & Partners Ltd (1999) 1 NWLR (Pt 588) 5555 atv568 & 570

Court:       Since the Plaintiff is convinced that there is no further need to serve the 1st Defendant with hearing notice, the plaintiff may go the case.

As I said earlier, the issue is within a very narrow concept. To my mind the issues are whether the Certificate of occupancy of the Plaintiffs predecessor was validly revoked. And this will examine the validity of the Notice of revocation and the service of same on the Plaintiffs’ predecessors in title.

The reason for the revocation may not be as important as the procedure or the process of the revocation. So irrespective of the genuineness of the reason for the revocation, it is imperative that the laid down procedure is followed.

The 2nd – 5th Defendants tendered exhibit Y as the Notice of Revocation. Exhibit Y is titled:

“ISLN No of 2012

Public Notice

The land use Decree (Act) No 6 of 1978

Revocation of Rights of Occupancy Order 2012

In exercise of the Powers Conferred on the Governor Section 28 of the Land Use Act No. 6 of 1978, and delegated to me by the governor and by virtue of all other Powers enabling me on that behalf, I Hon Uche Nwosu, the Hon Commissioner for Lands, Survey and Urban Planning Imo State of Nigeria hereby make the following:

Order

Citation and commencement: This order may be cited as the Revocation of Rights of Occupancy Orde, 2012. All Statutory Certificate of Occupancy, leases or licenses granted or deemed to have been granted to anybody in respect of all or any portion of plots Or parcel of Land described in the Schedule hereto are hereby determined.

The land affected: All that parcel/plots of land described in the Schedule hereto are required generally for public interest and particularly for the contravention/default of development clause/covenant of the Statutory Certificate of Occupancy are now revoked

Schedule description: All that parcel/plots of land within Housing Area G, New Owerri which the Allottees have failed to develop many years after the Allocations were made and the plots are identified as follows:

S/No LOCATION PLOTS
1 Housing Area G New Owerri 22
2 Housing Area G New Owerri 24
3 Housing Area G New Owerri 31
4 Housing Area G New Owerri 95
5 Housing Area G New Owerri 113
6 Action Area- Commercial District G New Owerri 5033 and 5037
7 Government Station Layout Owerri Rp 91
8 Housing Area B 44

Persons affected to forward claims: Any person or persons claiming to have any right or interest in Or improvement on the said plots of land is /are required within 6 (six) weeks from the date of the Service of this Notice to send to the Director of lands, Ministry of lands, Survey and Urban Planning Owerri Imo State of Nigeria, Statement of his/her/their right or interest and evidence of any claim in respect of such right or interest

Government Willingness to pay compensation: the Government is willing to treat for Compensation in respect of unexhausted improvements on the said land

Government to enter land immediately: And Notice is hereby given that government intends to enter into possession of the said land with immediate effect.

Penalty: Any person or persons who willfully hinders or obstruct the Governent from taking or obstruct the Governent from taking possession of the said land or any part thereof shall be laible under the provisions of the land use (Degree) Act No 6 of 1978, on Conviction to a fine of N50,00 (fifty Naira) or imprisonment for a period of 3 (three) Months,

Dated this 2nd day of October 2012

Hon Uche Nwosu

The Hon. Commissioner for lands, Survey and Urban Planning Owerri Imo State

It is on this document – exhibit ‘Y’ -that the 2nd – 5th Defendants hinged their defendce. But does the Land Use Act envisage this kind of document. In other words, does this meet the requirements of section 28 and 44 of the land use Act.

Before I proceed, let me touch on the complaint of the Plaintiffs regarding the defence of the 2nd – 5th Defendant. It is clear that the case was fought on the Statement of Defence of the 2nd – 5th Defendants dated 13-2-2014 and filed same day. To this the Plaintiffs filed a Reply and further Statement on oath on 24th February 2014. At no point did the Plaintiffs raise the issue that the Statement of Defence was filed out of time. Rather they responded by filing a Reply and Further Statement on Oath. The Plaintiffs adopted as part of their evidence the Further Statement on Oath accompanying the Reply to the 2nd – 5th Defendants Statement of Defence.

On the other hand, the 2nd – 5th Defendants argued that the documents tendered by the Plaintiffs most of them were not tendered when the matter was heard previously. I will say that most of these documents were said to have come from the office of the 2nd – 5th Defendants, if they are not genuine or were fabricated or forged, the 2nd – 5th Defendants are in better position to show that. What is more the 2nd – 5th Defendants did not object to their being admitted in evidence. In the absence of proof that these documents are creations of the Plaintiffs, they are admissible. Having said that, very few of all the documents tendered are vital to the determination of these case. These include the Certificate of occupancy of the Plaintiffs’ predecessor in title – exhibit B; the letter to the Police from the Ministry of Land – Exhibit V; the Public Notice- Exhibit Y; Allocation to the 1st Defendant – exhibit Z etc

Now, focusing on the main document, exhibit ‘Y’, does the Land Use Act permit joint or mass revocation of certificates of occupancy? Can a land be revoked for public interest and at the same time for violation of the terms in the statutory certificate of occupancy.

Section 28 (1) (2) talked about overriding public interest. It provides

(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, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;

(b)    the requirement of the land by the Government of the State or by a Local Government in 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.

Section 28 (5)(a) – (c) talked about breach of provision(obligations) contained in the Certificate. It provides:

(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 deemed to contain;

(b)    a breach of any term contained in the certificate of occupancy or in any special contract made under section 8:

(c)    a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under subsection (3) of section 10.

So, where a certificate is said to be revoked on the ground of public interest and a violation of the term contained in the certificate of Ocupancy, which ground prevails over the other?

Where a land is revoked in the public interest it cannot be reallocated for a private use but where it is revoked for violation of terms the Governor is at liberty to reallocate the plot another private individual.

But where land is revoked for overriding public interest, the acquiring authority is required to state the public purpose for which the land is being acquired.  Furthermore, where a statutory right of occupancy is revoked in overriding public interest, it should not be re-allocated for private use. If it is not used for a public purpose, it should revert to the same person in whom it was previously vested. see CHIEF COMMISSIONER EASTERN PROVINCE V ONONYE 17 NLR 142, OLATUNJI V MILITARY GOVERNOR OYO STATE 1994 LPELR- 14116; A.O OSHO V FFC [1991] 4 NWLR (PT.184) 157, LAWSON V AJIBULU [1991] 6 NWLR (PT. 195) 44, EREKU V MILITARY GOVERNOR, MID-WESTERN STATE OF NIGERIA [1974] 1 ALL NLR (PT. 2) 163.

Again, a person whose title is revoked for violation of terms of the statutory Certificate of Occupancy is not entitled to compensation but a person whose title is revoked for public interest is entitled to compensation.

Paragraph 29 of the Act supports the assertion that a revocation for overriding public interest attracts compensation. It provides:

  1. (1) If a right of occupancy is revoked for the cause set out in paragraph (b) of subsection (2) of section 28 of this Act or in paragraph (a) or (c) of subsection (3) of the same section, the holder and the occupier shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements

Again, it may not be imperative to hear a person whose title is being revoked for an overriding public interest, for public interest over land is for the interest of the general public including the holder, but where the revocation is for breach of the covenant on the certificate of the Occupancy it is imperative that there is an opportunity to hear the holder. Unless a holder is a known land speculator, in my very humble view it will be unconscionable to revoke a title because the holder is unable to erect and complete a building on the land within two years without an opportunity to make a presentation to the authority. Not every holder is financial buoyant to reach that feat. In UNIVERSAL MALTING COMPANY LIMITED & ANOR v. MESSRS. SINGOZ & COMPANY NIGERIA LIMITED & ORS (2015) LPELR-25620(CA) the court stated:

“In the OSHO vs. FOREIGN FINANCE CORPORATION case Supra, the Supreme Court was of the view that the revocation of a right of occupancy must be by one of the modes prescribed by Section 44 of the Land Use Act and must be for public purpose and that revocation for public purpose does not include revocation of the right of one grantee for purposes of vesting it in another. The Court was of the further view that where revocation is based on breach of terms of the certificate of occupancy, the aggrieved party must be accorded a fair hearing prior to the revocation. That where there is a subsisting grant, any other deemed grant would be invalid. See the case of E MMANUEL ILONA vs. SUNDAY IDAKWO (2003) 5 SCNJ 330.

In MR. A. O. OSHO & ANOR v. FOREIGN FINANCE CORPORATION & ANOR (1991) LPELR-2801(SC) the court stated:

“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 Constitution if revocation is for breaches of the terms of the certificate of occupancy.

It is my view that the terms used in the alleged revocation of the Plaintiff’s title is ambivalent, equivocal and not precise. In GOVERNOR OF OGUN STATE v. MR ADEGBOYEGA ADEBOLA COKER (2007) LPELR-4217(CA)it is clearly stated:

“Revocation of a Right of Occupancy is not a child’s play. It is a serious business and as such must be undertaken with utmost clarity and precision. Revocation of a grant deprives the holder of his proprietary right; therefore, the terms must be strictly complied with. See Osho & Anor v. Foreign Finance Corp. & Anor (1991) 4 NWLR (t 184) 157

As it stands, due to the confusing nature of the Public Notice reproduced above, one is at a lost on what ground the title of the Plaintiffs’ was revoked.  The holder of the titles mentioned in the said Notice are left to hazard which one is applicable to them.

Now, exhibit V is a letter dated 28th January 2013 addressed to the Divisional Police Officer, Divisional headquarters, The Nigeria Police New Owerri Division New Owerri. And titled Re Investigation Activities ASP Clifford Onwunli and team Re: Plot 44 Area B New Owerri

The body of the letter reads:

“With reference to your letter No AR:3000/IMS/NO/VOL.3/95 of 22/01/2013 on the above subject matter, I am directed ti informed(sic) you that Plot 44 in Housing Area ‘B’ New Owerri was allocated to Dr Iregbulem Lawrence M and issued with a Statutory Certificate of Occupancy dated 17-9-80 and registered as No. 90:90:19 Owerri. According to records, the property is not yet encumbered as at the date of this report as the real owner is still Dr. Iregbulem Lawrence M since he, Dr Iregbulem has not transferred his interest in the Property to any other person,

  1. The subject property to wit Plot 44 in Housing Area B New Owerri the subject matter of this case has not been revoked by Imo State Government
  2. Be guided accordingly please

JI Emezuruike

Ag. Director of deeds

For: Hon Commissioner

Exhibit V shows that after the so-called revocation by the Hon. Commissioner on 2nd October 2012, almost four months later, on 28-1-2013, a letter was still signed on behalf of the Hon Commissioner stating categorically that the alleged revoked title still belong to the person against whom the alleged revocation was made.

On who lies the burden of prove of revocation. It is the responsibility of the 2nd – 5th Defendants in this suit to prove the validity of the revocation of the tile of the Plaintiffs. In GOVERNOR OF OGUN STATE v. MR ADEGBOYEGA ADEBOLA COKER (2007) LPELR-4217(CA) it is stated:

“I perfectly agree with the learned counsel for the respondent that the burden to prove valid revocation of the right of occupancy rests on the appellant who alleged same. Such a burden cannot shift to the respondent by sheer inference. See Nigeria Engineering Works Ltd. v. Denap Limited & Anor (supra) at p. 526.” Per JOHN AFOLABI FABIYI, JCA (P. 13, paras. B-D)

The plea of revocation involves acknowledgment of the existence of a right of occupancy prior to that act of revocation. The burden is therefore on the Defendants to plead and prove a valid revocation. See MR. A. O. OSHO & ANOR v. FOREIGN FINANCE CORPORATION & ANOR (1991) LPELR-2801(SC)

So, even if the Plaintiff is found to have breached any term as to bring him under section 28(5) of the Land Use Act, is the method employed by the 2nd – 5th Defendants valid? In WURAOLA ADEKUNLE & ANOR v. GOVERNOR OF LAGOS STATE & ANOR (2020) LPELR-49587(CA) it stated:

“Having resolved that the Appellants breached the provision of Section 28 (5) of the LUA does not necessarily mean that the appeal will fail. This only means that the Respondents had the right to have revoked the right of occupancy of Remi Amos Enterprises. The substantive law is in favour of revoking the right of occupancy. This however, is not the end of the matter as the Land Use Act makes provision for the procedure to be adopted. The law is clear that once the law states a particular procedure upon which an act will be carried out, even if the act is justified if the procedure adopted does not follow due process, the act will be termed unlawful. See Ogualaji vs. A.G. Rivers State (1997) 6 NWLR (Pt. 508) 209 @ 224; Adesola vs. Abidoye (1999) 10 12 SC @ 141; Ahamefule vs. Imperial Medical Centre (2005) 5 NWLR (Pt. 917) 62.

The point being made here is that an ordinarily legal and justified act will become illegal and unlawful if the procedure adopted in carrying out that act is unlawful. There must therefore, be a synergy between the substantive law and the procedural law for an act to be lawful and legal. Sounding more specific, though it is true that the Appellants breached the terms of the certificate of occupancy, the question of whether the procedure followed in revoking the right of occupancy is proper in law is a different issue entirely. This is issue 3 raised and it is as important as the earlier two issues. This is because the requirement of the law is that the procedure must be followed. The law requires that the Governor or his agent that revokes a right of occupancy must serve such notice on the holder of the right of occupancy. This is an important requirement of the law. In Nigeria Engineering Works Ltd vs. Denap Ltd & Anor (2001) 12 SC (Pt.II) 136; (2001) LPELR-2002 (SC) at page 30-32 held per Kalgo JSC thus:

The powers of the Governor to revoke any right of occupancy must be exercised in the overriding interest of the public and more importantly the holder of the right of occupancy being revoked must be notified in advance of the revocation. The notice to the holder must state the reason or reasons for the revocation and this will give the holder the opportunity to make any representation he or she wishes to make. Where the notice was not given or notice given was inadequate or not given in compliance with the provisions of the Act, the act of the exercise of revocation under Section 28 of the Act will be null and void.

I do not see the essence of lumping the lands/plots to be revoked together when each person/plot could be personally addressed and the Notice sent. It was Justice Aniagolu, JSC who in the case of STATE CIVIL SERVICE COMMISSION v. BUZUGBE (1984) 7SC 19 stated:

“Instances may exist where short cuts may prove invaluable and achieve their objectives. It is, however, generally to be recognized that in legal matters and particularly in matters of natural justice short cuts many times prove counter-productive, be short-circuiting legal norm of natural justice and rendering the whole exercise a futility. In that case, the short-cut becomes the ineffective long route. ”

The confusion that prevailed in the whole exercise was highlighted when in the course of cross examination, the DW1 stated:

“I won’t be surprised to hear that after you claimed that the land in issue was revoked and given to another person, the ministry still sent demand notices because during the administration then, demand notices were been sent in bulk through the lands and Land Imo Geographical Information Agency.

This to my mind is very indicting. It shows there was no thoroughness or meticulousness applied to the whole exercise. Again, the witness said ‘during the administration’ in other words it was not so from the beginning or the beginning or previous administrations.

And this was after the DW1 had in the same cross examination stated:

“I have worked with the Ministry for 16 years. I am an experienced person. In the ministry if a plot of land is revoked the file in respect of the plot is marked revoked. And when it is so marked, it is further marked PA i.e., put away the file. If it is so marked and the file put away the owner of such a file, no further demands notice will be sent to the owner of that plot

If this is the procedure when a plot is revoked why was demand notice sent on this file, payment made and accepted from the person whose title over the plot has been extinguished?

Let me say that I agree with the 2nd – 5th Defendants that by virtue of the provisions of section 9(4) of the Land Use Act 1978, the terms and conditions of a certificate of occupancy granted under the Act and which has been accepted by the holder are enforceable against the holder and his successors in title, relying on Obi vs Minister of F.C.T (2015) 9 NWLR (pt. 1465) p.610. The Governor had a right of revocation, consequent upon the failure of the holder of statutory certificate of occupancy to comply with the terms of the grant embodied in the certificate of Occupancy. See ATTORNEY GENERAL OF KWARA STATE & ANOR v. ENGR. IBRAHIM ISSA KOLAWOLE (2018) LPELR-44982(CA)

Though the Governor has the power to revoke under section 28(5) it has been held that that power is not mandatory. Hence, in USMAN KAYODE OLOMODA v. MR. OLANIYI MUSTAPHA & ORS (2019) LPELR-46438(SC) it is stated:

“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

To my mind, it is speculative in the first place to say that Plaintiffs predecessor’s title was revoked under Section 28(5) of the Land Use Act. The 2nd – 5th Defendants did not tender any letter or notice specifically addressed to the Holder that his title is being revoked based on the development clause contained in paragraph 4 of his Certificate of Occupancy which would have brought the revocation under section 28(5) of the Land use Act. The paragraph 4 provides

4: To erect and complete on the said land within 2 (two) years from the date of commencement of the right of occupancy, buildings or other works specified in the detailed plans approved by the Chief Land Officer or other officer appointed by the Military Administrator in that behalf.

There were about 10plots listed. The question is: which ones are required for public interest and which ones are required for contravention/default of development clause/covenant of the Statutory Certificate of Occupancy? The defence that the Plaintiff’s title was revoked for contravention of development clause has basis on the Public Notice exhibit Y.

The defence that the land was not developed was not proved, the DW1 said she visited the land sometime in 2015. That was 2 years after it has been reallocated. And two years after the institution of the case and allegation of the Plaintiffs’ predecessor in title that his development on the land was demolished by the intruding army of the 1st defendant.

Again, if it is for a public purpose, it did not state what public purpose. See OLATUNJI V MILITARY GOVERNOR OF OYO STATE (1994) LPELR-14116

It is my humble view that there was no notice of revocation properly so called. And I so hold

Was the Notice of Revocation served on the Plaintiff? If for a moment one is to assume that Exhibit Y- Public Notice is a notice of revocation, the next obstacle is: was such properly served? The effect of service of notice of revocation is stated in section 28(6) & (7) of the Land Use Act. It provides:

(6)    The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.

(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.

So, the extinguishing of the right is dependent on receipt of the notice. From the subsections, “Notice thereof shall be given to the holder”. It did not say the Notice thereof shall be published, gazetted, pasted or dealt with in any other way other than “given”. See BICHI INVESTMENT NIGERIA LIMITED v. SYBRON MEDICAL CENTRE LIMITED & ORS (2020) LPELR-51194(CA).

The use of the word “shall” forecloses the use of any other method such as announcement in the air, social media as a means of bringing the Notice to the knowledge or attention of the holder. Where title of the holder of a right of occupancy is revoked, it is mandatory to put him on notice about the revocation of title and proof of service of such notice to the holder is fundamental to a valid revocation.

Section 44 of the Land Use Act requires such notice to be effectively served on the holder of the right occupancy. It provided thus:

44: 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; or

(c)    by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; or

(d)    in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office; or

(e)    if it is not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served, by addressing it to him by the description of “holder” or “occupier” of the premises (naming them) to which it relates, and by delivering it to some person on the premises or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.

The Plaintiff denied any notice was served on their predecessor. I agree with the Plaintiff counsel that when a party denies receiving a document, as in the present case, the person who asserts that he served the document on that party has the duty to prove the service. Relied on NLEWEDIM V. UDUMA (1995) 6 NWLR (part 402) 383 @ 394.

Under cross examination, the DW1 stated:

“It has been revoked the evidence in the court. Revocation order has been served on the plaintiff then. The person in charged served it”

To start with, Section 44(e) requires any notice required by the Land Use Act 1978 to be served on any person to be addressed to “holder” or “occupier” of the premises to which it relates. In ONONUJU V. A. G.ANAMBRA STATE (2009) 10 NWLR (PT 1148) 182, the supreme Court emphasized that where a notice of revocation does not bear the word “holder” or “occupier”, it is non-compliant with section 44 of the Land Use Act and it invalidates the notice of revocation of the Appellant’s land and renders it null and void.

To show how seriously the notice of revocation is taken the court in GOVERNOR OF OGUN STATE v. MR ADEGBOYEGA ADEBOLA COKER (2007) LPELR-4217(CA) stated:

“What I wish to bring to the fore is that the respondent’s statutory right of occupancy is over and in respect of Plot 27C Block XVIIB, Amendment to GRA, Core Area, Ibara, Abeokuta while Exhibit D relates to a different parcel of land situate, lying and known as Plot 27C Block XVIID, GRA Ibara, Abeokuta. It goes without saying that the two plots are not the same. Notice of revocation must be directed at the proper plot as stipulated by Section 44 of the Land Use Act. Since the appellant goofed, he must be so told in clear terms. There is no patching under the law as the proprietary interest of the respondent in the land granted to him is at stake

The Public Notice the exhibit ‘Y’ is addressed to nobody in particular. Even the names of the owners of the Certificates of Occupancy were not stated; It used neither the world “Occupier” nor “Holder”.

The notice must be personally served. Hence in YELMI BARAYA v. MARYAM ABDULLAHI (2017) LPELR-43371(CA) it is stated:

“The notice of revocation must also be served personally on the holder. See also Odogwu v Ilombu (2007) 8 NWLR (Pt. 1037) 488 at 515-516 paras H-8. Merely stating in Exhibit A6 that the Certificate of Occupancy No. BA/2664 issued to Capt. Jones Dawa was revoked is not sufficient. The Respondent ought to have produced in evidence the instrument of Revocation and evidence of personal service on the original holder Jones Dawa of the revocation letter. No such evidence was adduced by the respondent who had the burden to prove the fact of revocation having alleged it. I therefore hold that the finding of the learned trial Judge that the right in BA/2664 was revoked is perverse. I agree with the submission of Appellant’s counsel that the absence of proof of revocation and service of such notice of revocation on the holder of Certificate of Occupancy No. BA/2664, shows that the right in BA/2664 still subsists, therefore no subsequent grant validly made.

See also HEZEKIAH DALA v. MRS. ABIGAIL AYODELE & ORS (2014) LPELR-24621(CA)

The importance of service of Notice is reiterated in GOVERNMENT OF KWARA STATE & ORS v. IREPODUN BLOCK MANUFACTURING LIMITED & ORS (2014) LPELR-22553(CA) where the court stated:

“By the Respondents’ statement of claim and evidence at the lower Court, they denied knowledge of the Herald publication, which revoked their Certificate of Occupancy. Even upon a glance of Section 44 of the Act, it is without doubt that publication on the pages of newspapers is not one of the modes of service of Notice of Revocation envisaged by the Act. The five modes of service of any Notice required by the Act as stated in Section 44 of the Act and their wordings bring distinct and clear import of the intent of the law makers that the Act by Section 44 does not intend a mockery nor a rape of service but actual service of any notice required by the Act. It is of importance to the Act and Section 44 in particular that any notice served is received by the person the notice is meant for. Service of notice without bringing same to the knowledge of the person who was intended to be put on notice is service to fulfill all righteousness, this will not meet the purpose of Section 44 of the Act. I feel so strong about this view because Section 44 which provides for the mode of service of inter alia, Notice of Revocation has a paramount role to play in extinguishing a citizen’s proprietary right. 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. See. A.G. BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PT. 118) 646; NIGERIA ENGINEERING WORKS LTD V. DENAP LTD (1997) 10 NWLR (PT. 525) 481; C.S.S. BOOKSHOPS LTD V. THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 4 SC (PT. 11) 142.

The Plaintiffs having denied that such notice was served to their predecessor in title, the onus is on the 2nd – 5th Defendants to prove same. In ANDREW OMALE v. FEDERAL POLYTECHNIC KADUNA & ANOR (2015) LPELR-25933(CA) it is stated:

“On the manner of proof of receipt of a document which the recipient denies having received, the Supreme Court, per Belgore JSC (as he then was) in Nlewedim v Uduma (1995) 6 NWLR Part 402 Page 383 at 394 Para B-C held as follows:

“..the law is clear as to admissibility of such a contentious document in the face of a denial of having received it by the Defendant. The procedure for tendering of such document is after the Statement of Defence had clearly traversed the averment of having sent it to the Defendant and in the absence of a dispatch book indicating its receipt or evidence of having sent it by registered post, the probative value of such document will be worthless unless there are witnesses credible enough to testify that the Defendant was served with it.

The DW1 on the issue of service does not know how, where and when the service was done on the Plaintiffs predecessor. I am of the view that the 2nd – 5th Defendants have not shown that they served the Notice on the Plaintiffs’ predecessor in title. In HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY & ANOR v. SYBRON MEDICAL CENTRE LIMITED & ANOR (2020) LPELR-51168(CA) it is stated:

“The purpose of giving a Notice of Revocation of 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 a Notice of Revocation of Right of Occupancy, it follows that any purported revocation of the right of occupancy is ineffectual.

The effect of all I have said is: the certificate of occupancy of the Plaintiffs’ predecessor in title is still subsisting valid and effectual. Any other allocation or certificate of occupancy in respect of Plot 44 Housing Area B Layout New Owerri other than Certificate of Occupancy of Dr Lawrence Madu Iregbulem is void, invalid and of no effect. In ALHAJI AHMADU ABBA & ANOR v. ZIGWAI Z. B. GAIYA (2016) LPELR-41164(CA) it is stated:

“Taking the case of the respondent first, by relying on exhibit ‘A’, the Statutory Right of Occupancy, has he proved his title to the land as required in law. The law is trite, for a certificate to be valid it must be issued after the grant of a right of occupancy under Section 5(1) (a) or Section 6 (1)(a) and (b) or Section 34(1) of the Land Use Act. A certificate of occupancy must not be issued when there is in existence another one issued over same land.

Accordingly,

  1. It is declared that the Plaintiffs, being the beneficiaries of the estate of the late Dr Lawrence M. Iregbulem, are entitled to the right of occupancy in and over the parcel of land known as, situate at and called Plot Number 44 in Housing Area ‘B’ in New Owerri Layout, Owerri, Imo State, Nigeria and covered by a Statutory Certificate of Occupancy registered as Number 90 at Page 90 in Volume 19 of the Lands Registry in the office at Owerri.
  2. It is declared that the plaintiffs have exclusive rights to the use and occupation and possession of the said Plot Number 44 in Housing Area ‘B’ in New Owerri Layout, Owerri.
  3. It is declared that any purported lease, license or allocation of the said Plot Number 44 in Housing Area B’ in New Owerri Layout, Owerri made by the 2nd – 5th Defendants or any of them or by any person under their direction to the 1st Defendant is null and void and of no effect whatsoever.
  4. An Order of perpetual injunction is made restraining the 1st Defendant either acting by himself or through his agents, servants, workmen or privies, from trespassing or further trespassing on the said Plot Number 44 in Housing Area ‘B’ in New Owerri Layout, Owerri or doing anything thereon inconsistent with the rights of the Plaintiffs or in any manner whatsoever or howsoever interfering with the rights of the Plaintiffs over the said parcel of land.
  5. An Order of perpetual injunction is made restraining the 2nd – 5th Defendants either acting by themselves or through their agents, servants, officers, workmen or privies, from doing anything on or with the said Plot Number 44 in Housing Area ‘B’ in New Owerri Layout, Owerri inconsistent with the rights of the Plaintiffs or in any manner whatsoever or howsoever interfering with the rights of the Plaintiffs over the said parcel of land without due process of law.
  6. The sum of N5,000,000.00 (Five Mmillion Naira) general damages against the 1st Defendant only.

I so hold.

I.M.Njaka

Judge

7-12-2021

Previous post SUIT NO: HOW/47D/2018 – MRS. OKORO CONSTANCE NWAMAKA V MR. IKERI B UGOCHUKWU- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- ON THE 14TH DAY OF DECEMBER 2021- There are provision and requirements for the annulment of marriage and dissolution of marriage and the effect on the parties are different -Annulment of marriage is usually on the allegation that the marriage is void or voidable -Whether the marriage is Customary or Statutory, consent is what gives the marriage its validity- Consent is an essential element in marriage, and any fraudulent or coerced consent can impact the validity of the marriage
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