Governor of Ogun State V. Mr. Adegboyega Adebola Coker (2007)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the judgment delivered by Mabogunje, J. while sitting at the High Court of Justice, Abeokuta in Ogun State of Nigeria on 13th January, 1999.
At the trial court, the respondent herein, as plaintiff, caused his suit against the appellant herein as defendant, to be instituted by originating summons in which he sought for the determination of the following question:
“Whether the Notice of Revocation of the Plaintiffs Statutory Right of Occupancy over that piece or parcel of land situate, lying and known as Plot 27C, Block XVIIB, Amendment to G.R.A. Core Area, Ibara, Abeokuta Ogun State registered as No. 18 at page 18 in Volume 329 (Certificate of Occupancy) of the Lands Registry in the Office at Abeokuta constitutes a valid Notice in accordance with the provisions of the Land Use Act, Cap 202 Laws of the Federation of Nigeria, 1990.”
He maintained that if the answer to the above question is in the negative, he seeks the following reliefs:
“1. A declaration that the purported revocation of the Plaintiffs Statutory Right of Occupancy over and in respect of the piece or parcel of land situate, lying and known as Plot 27C Block XVIIB Amendment to G.R.A. Core Area, Ibara, Abeokuta, Ogun State registered as No. 18 at page 18 in Volume 329 (Certificate of Occupancy) of the Lands Registry in the Office at Abeokuta is irregular, unlawful, unconstitutional, null and void and of no effect whatsoever.
- An order setting aside the purported revocation of the Plaintiffs Statutory Right of Occupancy over and in respect of the piece or parcel of land situate lying and known as Plot 27C Block XVIIB Amendment to G.R.A. Core Area, Ibara, Abeokuta, Ogun State registered as No. 18 at page 18 in Volume 329 (Certificate of Occupancy) of the Lands Registry in the Office at Abeokuta.
- Perpetual injunction restraining the defendant, his agents, servants or privies from giving effect or further effect to the revocation order.”
The respondent relied on a 13-paragraph affidavit as well as a 12-paragraph Reply to Counter affidavit in his effort to prop his case. A counter-affidavit of 21 paragraphs was filed on behalf of the defendant at the trial court.
Put succinctly, the respondent as plaintiff, maintained that sometime in 1987, he was granted a Statutory Right of Occupancy over and in respect of a piece or parcel of land situate, lying and known as plot 27C Block XVIIB, Amendment to G.R.A., Core Area, Ibara, Abeokuta, Ogun State registered as No. 18 at page 18 in Volume 329 (Certificate of Occupancy) of the Lands Registry in the Office at Abeokuta. The Certificate of Occupancy issued to the respondent is Exhibit ‘TC1’.
In August 1998, the respondent became aware of a publication contained in the Daily Sketch of Monday, June 1, 1998 to the effect that his Statutory Right of Occupancy over the piece or parcel of land covered by Exhibit ‘TC1″ had been revoked by the appellant. He maintained that no notice of revocation was served on him. He asserted that Exhibit D issued by the appellant which he referred to as the purported letter of revocation relates to a different piece or parcel of land situate, lying and known as plot 27C Block XVIID, G.R.A. Ibara, Abeokuta; which he discountenanced when he received same.
The respondent said that he spent huge sums of money on the land by fencing it round with blocks, fixed iron gates thereon and employed a gardener to clear it of weeds at all times and arranged for the commencement of the construction of a building on the land.
The defendant, on his part, claimed that a notice of revocation of the Certificate of Occupancy over the piece of land – Exhibit D attached to the counter-affidavit was served on the plaintiff by pre-paid registered post to the address furnished by him. It is extant in Exhibit D that the Certificate of Occupancy which was revoked is in respect of ‘Plot 27C Block XVIID, G.R.A. Ibara, Abeokuta’ and not over ‘Plot 27C, Block XVIIB Amendment to GRA, Core Area, Ibara, Abeokuta’.
The defendant maintained that the plaintiff breached a condition of the grant of the piece of land made to him by failing to complete a building approved by the Lands Officer within two years and same precipitated the order of revocation issued to the plaintiff – Exhibit D.
The learned trial judge was addressed by learned counsel for both parties. In the reserved judgment entered on 13-1-99, the learned trial judge found in favour of the plaintiff that no valid notice of revocation of the Statutory Right of Occupancy over and in respect of Plot 27C Block XVIIB Amendment to G.R.A. Core Area, Ibara Abeokuta was served on the plaintiff. The learned trial judge then ordered that-
“1. The purported revocation of the plaintiffs statutory right of occupancy over and in respect of the piece or parcel of land situate, lying and known as Plot 27C Block XVIIB Amendment to G.R.A. Core Area, Ibara, Abeokuta, Ogun State registered as No. 18 at page 18 in Volume 329 (Certificate of Occupancy) of Land Registry in the Office at Abeokuta is null and void and of no effect whatsoever.
- The purported revocation of the plaintiffs statutory right of occupancy over and in respect of the piece or parcel of land situate, lying and known as Plot 27C Block XVIIB Amendment to GRA Core Area, Ibara, Abeokuta, Ogun State registered as No. 18 at page 18 in Volume 329 (Certificate of Occupancy) of Lands Registry in the office at Abeokuta is hereby set aside.
- The defendant, his agents, servants or privies are restrained from giving effect to the revocation order against the plaintiff.”
The defendant was not happy with the stance of the learned trial judge and has appealed to this Court. The Notice of Appeal which was filed on 15-3-99 contains three (3) grounds of appeal; which without their particulars, read as follows:
“Ground 1
The learned trial judge erred in law when he held that the defendant failed to prove that the plaintiff’s certificate of occupancy had been revoked.
Ground 2
The learned trial judge erred in law when he granted reliefs 1 & 2 contained in the plaintiffs Originating Summons dated 10th of August 1998 after having held that the notice of revocation (Exhibit D) claimed to have been served on the plaintiff was in respect of another plot of land.
Ground 3
The learned trial Judge erred in law when he held that no valid revocation notice had been served in respect of the plaintiffs land.”
Leave was granted to the appellant to file one additional ground of appeal which without the particulars, reads as follows:
“Ground 4
The learned trial judge erred in law in failing to make a specific finding on whether or not the plaintiff was in breach of the terms contained in the Certificate of occupancy No. 00012806 before proceeding to treat the issue of the validity of notice of revocation.”
The relief claimed by the appellant is to set aside the judgment of the learned trial judge and to hold that a valid notice of revocation had been served in respect of the plot of land covered by Certificate of Occupancy No. 00012806.
On 8-3-07 when the appeal fell due for hearing, the court was urged to take the appeal as having been argued vide Order 6 Rule 9(5), Court of Appeal Rules, 2002. As the request was found to be in order, it was granted as the respondent, on whose behalf a brief of argument was filed, was absent and not represented by counsel when the appeal was called for hearing.
On behalf of the appellant, the three issues distilled for determination of the appeal read as follows:
“(1) Whether the learned trial judge was right in holding that the notice of revocation of the plaintiffs right of occupancy was null and void.
(2) Whether the learned trial judge was right in granting the reliefs contained in the plaintiffs Originating Summons after holding that the notice of revocation was in respect of another plot of land.
(3) Whether the learned trial judge could, without first making a finding as to whether or not the plaintiff was in breach of section 28(5)(b) of the Land Use Act, Cap 202, Laws of the Federation of Nigeria, 1990, determine the validity of the Notice of revocation.”
On behalf of the respondent, two issues were formulated for determination of the appeal. They read as follows:
“(1) Whether the learned trial judge was not right in holding that the purported revocation of the respondent’s statutory right of occupancy over Plot 27C Block XVIIB was null and void, and in granting all the reliefs claimed by the respondent.
(2) Whether any issue was joined by the parties on breach of the terms contained in the Certificate of Occupancy.
And if so-
Whether the resolution of the issue was necessary for the determination of the action.”
On page 3 of the respondent’s brief of argument, there is a Notice of Preliminary Objection. On 8-3-07 when the appeal was heard, no counsel appeared for the respondent to raise and prop the preliminary objection. Learned counsel for the appellant urged us to discountenance same. I seriously feel that he is on a firm ground. As the preliminary objection hangs in the air, it is hereby discountenanced.
Arguing issue 1, learned counsel for the appellant maintained that after the respondent was allocated a plot of land in the G.R.A. Ibara, Abeokuta, he was subsequently granted a Certificate of Occupancy No.000 12806 over Plot Number 27C Block XVIIB. A survey plan was attached to it. The Certificate of Occupancy with the attached survey plan is Exhibit ‘TCI’.
Learned counsel maintained that in order to justify revocation of the plaintiff’s right of occupancy the appellant must show that the respondent was in breach of the provisions of the Land Use Act Cap. 202, Laws of the Federation of Nigeria, 1990 and that a notice of revocation was brought to his attention. Learned counsel referred to section 8 of the said Act.
Learned counsel observed that the land in dispute originally belonged to the Ogun State Government and was leased to the respondent upon payment of necessary fees for a term of 99 years. Learned counsel stressed that it was shown that the respondent breached one of the terms and conditions in the lease to wit – failure to erect and complete a building in the plot within 2 years. He cited the cases of Isaac Omoregbe v. Daniel Lawani (1980) 2-4 SC 108 at 177; Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81.
Learned counsel felt that since the respondent was in breach of the law, the appellant was right in revoking the respondent’s right of occupancy over the plot in dispute.
Learned counsel felt that the provisions of section 17 of the State Lands Law Cap. 121, Laws of Ogun State must be read together with sections 28(5)(b) and 44 of the Land Use Act and that notice of revocation was served on the respondent vide Exhibit D. He contended that if Exhibit C is read along with Exhibit D, the finding of the learned trial judge on revocation, being in respect of a different plot, is erroneous.
Arguing issue 1, learned counsel for the respondent felt that the task before the lower court was mainly to determine whether the purported revocation of the respondent’s Statutory Right of Occupancy by the appellant was valid. Learned counsel submitted that the burden to prove valid revocation of the right of occupancy rests on the appellant. He cited Nigeria Engineering Works Ltd. v. Denap Limited & anr (1997) 10 NWLR (Pt. 525) 481 at 526.
Learned counsel submitted that the burden of proof is on the appellant to prove valid revocation of the respondent’s statutory right of occupancy over Plot 27C Block XVIIB Amendment to G.R.A., Core Area, Ibara, Abeokuta, Ogun State. He stressed that the mode of service of revocation notice is as provided by section 44 of the Land Use Act. He referred to Osho & anr. v. Foreign Finance Corporation & anr. (1991) 4 NWLR (Pt. 184) 157 at 196.
Learned counsel submitted further that since revocation of a grant deprives the holder of his proprietary right, the terms must be strictly complied with and there must be a strict construction of the provisions of the Land Use Act. He maintained that Exhibit D is in respect of Plot 27C Block XVIID, GRA, Ibara Abeokuta and not respondent’s Plot 27C Block XVIIB, amendment to G.R.A., Core Area, Ibara, Abeokuta. Learned counsel submitted that Exhibit D is very clear and unambiguous. He cited Union Bank of Nigeria Ltd. v. Prof. Albert Ojo Ozigi (1994) 3 NWLR (Pt. 333) 385 at 403; Egba D. Akpalakpa & anr. v. Mark Igbaigbo & ors (1996) 8 NWLR (Pt. 468) 533 at 547.
Learned counsel conceded the fact that the land in dispute is state land. He however maintained that the governor cannot revoke the right of occupancy over a state land. He again referred to Osho & anr. v. Foreign Finance Corporation & anr (supra) at page 192. He felt that section 17 of the State Lands Law cannot be read together with sections 28(5)(b) and 44 of the Land Use Act since section 17 of the State Lands Law prescribes a completely different procedure for the recovery of land as it makes an action for forfeiture as the appropriate step. He felt that the step taken by the appellant was neither appropriate nor lawful.
Learned counsel submitted that breach of a covenant in a lease is merely a ground for forfeiture which is not automatic. He cited Gregory Obi Ude v. Clement Nwara & anr (1993) 2 NWLR (Pt. 278) 638 at 665. Learned counsel felt that whether under the State Lands Law and/or the Land Use Act, the appellant has failed to prove that his action of purportedly revoking the respondent’s statutory right of occupancy over land known as Plot 27C Block XVIIB was valid.
Learned counsel further submitted that the learned trial judge was right in holding that the purported revocation of the respondent’s statutory right of occupancy over Plot 27C Block XVIIB Amendment to GRA, Ibara, Abeokuta was null and void. He felt that the learned trial judge was right, as well, in setting aside the purported revocation of the respondent’s statutory right of occupancy over the said plot and in granting the reliefs claimed by the respondent.
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 & anr (supra) at p. 526.
Revocation of a grant deprives the holder of his proprietary right. It is therefore incumbent upon the grantor to strictly comply with the terms and there must be a strict construction of the provisions of the applicable laws to wit – Land Use Act and the State Lands Law. Refer to Osho & anr v. Foreign Finance Corporation & anr (supra) at page 195.
Exhibit D is the letter of revocation served on the respondent by the appellant. After giving it a careful reading, I can see that it is very clear and unambiguous. It has been pronounced by Adio, JSC without equivocation in Union Bank of Nigeria Ltd. v. Prof. Ozigi (supra) at page 403 that where a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning.
There is no doubt about the fact that one cannot read into a document what is not there. The feeble argument that Exhibit D relates to the respondent’s land was an attempt by the appellant to read into Exhibit D, by inference, what is not there. I am afraid; I cannot pitch my tent with him. See Egba D. Akpalakpa & anr v. Mark Igbaigbo & ors (supra) at page 547.
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.
I agree with the learned trial judge that the notice of revocation in Exhibit D is in respect of Plot 27C Block XVIID, G.R.A., Abeokuta. Clearly on this fact, the notice of revocation served on the respondent is in respect of a different land from Plot 27C Block XVIIB Amendment to GRA, Core Area, Ibara, Abeokuta over which he was granted statutory right of occupancy. The notice of revocation in Exhibit D which relates to Plot 27C Block XVIID, GRA Ibara, Abeokuta revoked the right of occupancy over that plot of land and no other plot.
Perhaps I should further express the point that both sides agree that the plot granted the respondent by the appellant is state land. Since it is state land, section 17 of the State Lands Law of Ogun State prescribes a completely different procedure for the recovery of land where a breach of covenant by a grantee is pin-pointed by the grantor. It provides for the commencement of an action in the High Court or in a Magistrate Court for the recovery of the premises at any time after one month from the service of the notice. In the words of Obaseki, JSC in Osho v. Foreign Finance Corporation & anr (supra) at page 193 (similar to the instant matter herein) as the land in question is state land leased out, a revocation of a statutory right of occupancy under section 28 of the Land Use Act appears inappropriate, forfeiture of the lease appears in my view to be the proper course of action to take.
It occurs to me that breach of a covenant in a lease is merely a ground for forfeiture. Same is not automatic. See Ude v. Clement Nwara (supra) at page 665. It goes without saying that the appellant failed to follow the provision of section 17 of the State Lands Law which makes an action for forfeiture the appropriate step. The step taken by the appellant was neither appropriate nor lawful.
From whatever angle one looks at the action taken by the appellant, be it under sections 28(5)(b) and 44 of the Land Use Act or under section 17 of the State Lands Law, the appellant failed to prove that his action of purportedly revoking the respondent’s statutory right of occupancy over the land known as plot 27C Block XVIIB Amendment to Core Area, Ibara, Abeokuta was valid. I agree that the learned trial judge was right in declaring such an unlawful act as null and void.
I have no hesitation in resolving issue 1 against the appellant and in favour of the respondent without any much ado.
Arguing issue 2, learned counsel for the appellant observed that the learned trial judge can only set aside a revocation notice in respect of plot 27C Block XVIIB if the notice refers to the plot itself. He felt that the learned trial judge should have restricted himself to the holding that the right of occupancy over the plaintiffs land had not been revoked.
I am unable to see any big deal in this issue. The learned trial judge was circumspect in the words employed by him. He said there was no valid revocation of the respondent’s statutory right of occupancy. He qualified the word ‘revocation’ with the word ‘purported’. Since he found that there was no valid revocation via Exhibit D, the ‘purported revocation’ was rightly made to have no effect as it was put in abeyance. I am at one with the learned trial judge when he set aside the ‘purported revocation’ as it was invalid, null and void. I resolve the issue against the appellant.
Arguing issue 3, learned counsel observed that the learned trial judge failed to make a specific finding on whether or not the plaintiff was in breach of the terms contained in the certificate of occupancy. He submitted that the court must pronounce on all the issues before it. He referred to Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131 at 140.
Learned counsel submitted that if the learned trial judge had considered this issue, he would have discovered that revocation for breach of terms in the certificate of occupancy is not the same as revocation of a right of occupancy for overriding public purpose whereby a citizen’s land is compulsorily acquired. He felt that the respondent only has a leasehold of the land and that the principle of law that expropriatory statutes are construed against the acquiring authority is not applicable to a revocation for a breach and in a situation where the land was not bought out-rightly by the respondent but was state land allocated to him upon payment of some fees. He finally maintained that if the principle is applicable, the appellant complied with the provisions of the Land Use Act.
Learned counsel for the respondent felt that no issue was joined in respect of breach of the terms contained in the Certificate of Occupancy. He referred to Sylvester Obi & ors v. Isaac Ozor (1991) 9 NWLR (Pt. 213) 94 at 106-107. Learned counsel maintained that the purported revocation was not challenged on the ground that there was no breach. He opined that even if there was a breach, the appellant must still serve a valid notice of revocation before he can successfully claim that he had revoked the statutory right of occupancy of the respondent over plot 27C Block XVIIB.
Learned counsel submitted that the failure of the trial court to resolve the issue of whether or not the respondent was in breach of the terms of the Certificate of Occupancy did not occasion a miscarriage of justice. He cited Chief Udo Ukpan & anr v. Chief Ediowo Udo & ors (2002) 8 NWLR (Pt. 769) 326 at page 347; Augusta Chime & ors v. Moses Chime & ors (2001) FWLR (Pt. 39) 1457 at page 1483.
Learned counsel submitted that since the error, if any, did not occasion a miscarriage of justice, all the argument of the appellant on issue of a breach of the terms of the Certificate of Occupancy equates to technicality. He observed that courts today are more concerned with substantial justice between the parties without undue regard to technicality. He cited Prince Edward Uwaifiokun Eweka and ors v. Asonmwonriri Rawson (2001) FWLR (Pt. 68) 999 at page 1012. He urged us to hold that failure of the learned trial judge to determine whether or not the respondent was in breach of the terms of the Certificate of Occupancy before proceeding to determine the issue of the validity of the purported letter of revocation did not occasion any miscarriage of justice.
I agree with the learned counsel for the appellant that a court must pronounce on all the issues put before it. Learned counsel for the appellant felt that since the respondent only has a leasehold over state land, the principle of law that expropriatory statutes are construed against the acquiring authority is not applicable to a revocation for breach in a situation where the land is not bought out rightly by the respondent. This submission, in my opinion, sounds simplistic. The respondent has a proprietory right over the land allocated to him and the relevant laws in respect of revocation of same must be construed strictly. See Osho v. Foreign Finance Corporation & anr (supra) at page 195. The submission of the appellant’s counsel in this regard is not in tandem with the pronouncement of the apex court in the above stated authority as reflected earlier on in this judgment.
I am of the considered view that the failure of the learned trial judge to pronounce on breach of the terms of the certificate of occupancy did not have any radical effect on the final decision of the trial court. Even if there was a breach of the terms of the said certificate of occupancy, service of a valid notice of revocation on the respondent is sine qua non to make same valid. The purported notice of revocation in Exhibit D was found to be invalid by the trial court. Same has been sustained by me. A finding by the trial court that there was breach of the terms would not have changed the dice. To my mind, failure to resolve the stated issue has not occasioned a miscarriage of justice.
It is not every imaginable slip or error in a judgment that will lead to a reversal of same by an appellate court. An error that will warrant a reversal of the judgment of the lower court must be such as to have substantially affected the decision. This is not such a case. See Ukpan & anr. v. Udo & ors (supra) at p. 347; Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282; Adeyeri v. Atanda (1995) 5 NWLR (Pt. 397) 512 at 529; Augusta Chime v. Moses Chime & ors (2001) FWLR (Pt. 38) (supra) at page 1483.
I am unable to see my way clear in upturning the judgment of the learned trial judge for the ostensible complaint generated by this issue. The issue is resolved against the appellant and in favour of the respondent.
I come to the conclusion that the appeal lacks merit. It is hereby dismissed as I affirm the judgment of the learned trial judge handed out on 13th January, 1999. In the prevailing circumstance of the appeal and more especially as the respondent was not represented by counsel on 8-3-07, I order that each party should bear his costs.
Other Citations: (2007)LCN/2383(CA)
