Network Security Ltd V. Alhaji Umaru Dahiru & Ors (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

This appeal is against the decision of Honourable Justice O. Okeke delivered in the open court by Honourable Justice SW. Egbo-Egbo at Abuja on the 11th day of June 2003. The judgment granted the 1st respondent (the plaintiff in the court below) declaratory and injunctive reliefs against the Defendants and awarded the sum of five hundred thousand naira only (N500,000.00) damages against the 1st and 2nd Defendants (now 2nd and 3rd Respondents in this appeal) against this judgment, it is only the 4th Defendant in the court below that has appealed. The 1st, 2nd and 3rd Defendants have not appealed.

STATEMENT OF FACTS

On the application by the plaintiff (now the 1st Respondent) the 1st Defendant (now 2nd Respondent) issued the plaintiff right of occupancy over plot NO.109 Wuse II, FCT Abuja covered by Certificate of Occupancy NO. FCT/ABU/BA.50 Exhibit ‘A’. The plaintiff in 1994 applied for approval of building plan and a letter conveying the approval for development. Exhibits B and C respectively.

While the plaintiff was carrying out the development of his plot NO. 109 Wuse II, the 2nd Defendant (now the 3rd Respondent) came and demolished the development put by the plaintiff and upon enquiring, the plaintiff discovered that his right of occupancy was revoked, hence the action in the suit NO.FHC/ABJ/C5/68/96.

The Plaintiff upon discovering that his plot was purportedly reallocated to the 3rd Defendant sought and obtained an order of court for the joinder and the 3rd Defendant was so joined.

The 4th Defendant (now the Appellant) almost two years after the action was filed in court applied and was joined as the 4th Defendant in the suit.

Pleadings were filed and exchanged between the 1st, 2nd and 4th Defendants with the Plaintiff, the 3rd Defendant notwithstanding service of Court process never showed up in court to defend the action.

The case of the 1st and 2nd Defendants was that they had by virtue of Section 28(5) paragraph (a) and (b) of the Land Use Decree NO.6 of 1978 revoked the plaintiff’s right. The 1st and 2nd Defendants statement of defence is found on pages 137 and 138 of the records.

The 1st and 2nd Defendants by their Statement of defence admitted allocating the plot of land under dispute to the plaintiff. They also admitted granting the plaintiff the approval for the development of the plot in 1994.

The issue in dispute between the plaintiff and the 1st and 2nd defendants was that while the 1st and 2nd Defendants purportedly revoked the right of the plaintiff under Section 28(5) paragraph (a) and (b) of the Land Use Act, the Plaintiff maintained that the revocation was in law ineffective as it was not legally done and as he was not in any breach. That the purported re-allocation of the same plot to the 3rd Defendant was also illegal and the subsequent sale of the plot by the 3rd Defendant to the 4th Defendant during the pendency of the suit was equally ineffective and illegal.

The Court after evidence was adduced in court gave judgment against the Defendants and granted declaratory and injunctive relief and against the Defendants having held that the revocation was ineffective and so the purported allocation of the plot to the 3rd Defendant was unlawful and that the doctrine of Lis pendens was applicable against the 4th Defendant. It is against that judgment that the 4th Defendant appealed to this court.

The Appellant through counsel filed a Brief of Argument on 10/3/04 and deemed filed on 14/12/04 formulated four issues for determination are :-

1. Whether the learned trial Judge rightly or wrongly applied the provisions of the Land Use Act to nullify the 2nd Respondents re-possession of the land in dispute from the 1st Respondent.
2. Whether having regard to the location of the land in dispute ie Federal Capital Territory Abuja, the provisions of the Land Use Act are applicable to the land in dispute and if applicable, whether the Act is not subject to the overriding express provisions of the Certificate of occupancy (Exhibit A) which formed the basis of contract between the 1st and 2nd Respondents.
3. Whether the learned trial Judge rightly invoked the doctrine of Lis pendens against the appellant and thereby rightly rejected the appellants defence of bona fide purchase for value without notice.
4. Whether having regard to all surrounding circumstances, learned trial Judge rightly granted declaration and injunction against the appellant The 1st Respondent in their Brief of Argument filed on 1/2/05 raised four issues viz:-
5. Whether the trial court was right in holding that the purported revocation of the plaintiff’s right of occupancy by the Respondent (2nd Defendant) was null and void under the provisions of the Land Use Act.
6. Whether the learned trial Judge was right in holding that the doctrine of Lis pendens had caught up with the appellant (4th Defendant at the trial court) the 4th Defendant having purportedly acquired interest in the property during the pendency of the suit.
7. Whether the learned trial Judge was right in granting the reliefs sought by the 1st Respondent (plaintiff at the trial court).
8. If the purported revocation was null and void, whether the 2nd and 3rd Respondents could re-allocate plot 109 Wuse II District, Abuja to 3rd Defendant from who the Appellant acquired interest in the plot.

The Appellant filed a Reply Brief to the 1st Respondent’s Brief which filing was done on the 12/5/05.

I shall for convenience utilise the issues as framed by the Appellant.

ISSUES NOS 1 & 2

Prof. Osipitan SAN submitted that the learned trial Judge misconceived the purport and effect of the land Use Act vis-a-vis its application in the Federal Capital Territory Abuja. That as shown in the preamble to the Act, it is a legislation designed to make land available to Nigerians in all the states of the Federation excluding land vested in the Government of the Federation and any of its agencies and the provisions of the Land Use Act are consequently not applicable to land in the Federal Capital Territory Abuja. He cited Section 49(1) Land Use Act. Also Section 1(3) of the Federal Capital Territory, Abuja. He also referred to Section 297(2) of the 1999 Constitution; Ona v. Atenda (2000) 5 NWLR 656 at 267.

Learned counsel said the Federal Government has thus become not only clothed with possessory right over land within the Federal Capital Territory but assumed exclusive right over it as its owner not just holding in trust for the people as in the case of the State Government or local Governments – wholly and solely devoid of any qualification or exception. He referred to Section 261(1) of the Constitution.

Learned counsel for the Appellant contended that contrary to the decisions of the learned trial Judge, the Land Use Act is not applicable in the Federal Capital Territory. That even though reference was made to the provision of the Act, in Exhibit A that it is not open to the parties to contract outside the provisions of the statute and the Constitution. That parties cannot by consent make Land Use Act the applicable law contrary to the decision of the Court of Appeal in Ona v. Atenda, the provisions of section 297(2) of the 1999 Constitution and the Federal Capital Territory Act and the Land Use Act itself. He cited Federal Government of Nigeria v. Zebra Energy Ltd (2002) 3 NWLR (pt 754) 471.

Learned counsel submitted in the alternative that on the assumption that the Land Use Act is applicable in the Federal Capital Territory; its application is subject to the terms of the Certificate of Occupancy. Therefore the provisions of Section 28 of the Act on revocation of right of occupancy, is subject to any contrary express provision of the certificate occupancy. That the 1st and 2nd Respondent in the commencement part of Exhibit A, expressly agreed that the provisions of the Land Use Act will apply subject to “the following special terms and conditions”, That in effect that means that the general provisions of the Land Use Act are subject to the express conditions of the contract constituted in Exhibit A. That in the scheme of things, primacy should be given to the conditions/provisions in Exhibit A. He cited Ondo state University v. Folayan (1994) 7 NWLR (pt 354) 1; Texaco Co. Panama Inc. v. Shell PDC (2002) 5 NWLR (pt. 759) 209; Olusemo v. COP (1998) 11 NWLR (pt 575) 547. In these authorities learned counsel said the definition of “subject to” are seen.

Learned counsel referred to the terms in Exhibit A and the evidence relating thereto. He stated that Exhibit A which was the basis of contract between the 1st and 2nd Respondent, submitted that assuming the Land Use Act applied to land with the Federal Capital Territory Abuja (and it does not) the 2nd Respondent rightly exercised the re-possession of the land. That the agreement between the 1st and 2nd Respondent ie Exhibit A stipulates in cause 13 that in the event of any breach by the former, it shall be lawful for the latter to hold and enjoy the land as if the right of occupancy had not been granted and this precisely was what the 2nd Respondent did. That the rights of re-entry and re-possession reserved for the 2nd Respondent in clause 13 of Exhibit A are exercisable independently of the revocation provisions of Section 28 of the Land Use Act. That this Court should give effect to clauses 4 and 13 of Exhibit A which are the terms, conditions and basis of the contract between the 1st and 2nd Respondents. That it is a time tested principle of law, that the court should not re-write contracts for parties but give effect to the contracts they have entered into. He cited Allied Trading Co. Ltd v. GBN Line (1985) 2 NWLR (pt 5) 74; Olatunde v. OAU (1998) 8 NWLR (pt. 549) 178.

The Respondent through learned counsel, Mr. Gulak said that the learned trial Judge was right in holding that the revocation was null and void as all necessary steps under the provision of the Land Use Act for the exercise of power of revocation were not taken by the 1st and 2nd Respondents. That for purposes of land situate in the Federal Capital Territory, the Federal Government holds in trust for the people of Nigeria unlike land in the various states where the state government holds in trust for the people of the state. That it is the Federal Government, through the President or the designated Minister who allocates the land for the people and once the plaintiff successfully obtains a grant from the 1st Respondent, the grant could only be revoked in accordance with the law and under strict compliance with the provision for revocation under the Land Use Act under which the 1st and 2nd Defendants (now the 2nd and 3rd Respondent) said they revoked the plaintiff’s right.

Learned counsel for the 1st Respondent further submitted that assuming (without conceding) that the Land Use Act does not apply to Land in the Federal Capital Territory. That the conditions in the Certificate of Occupancy (Exhibit A) specifically states that the provision in the land Use Act governs the instrument, and the conditions for revocation of the said right of occupancy have not been proved by the 2nd and 3rd Respondents. That assuming the Land Use Act does not apply to the FCT, the parties to the contract Exhibit ‘A’ the certificate of occupancy intend that the provisions of the Land Use Act govern the transactions between them.

The learned counsel for the 1st Respondent stated that there is no dispute that the land in dispute plot 109 Wuse II District, Abuja belonged to the Federal Government. That the only question to be resolved is whether having granted rights over the land to the 1st Respondent and having equally given the 1st Respondent approval or permission to develop same and the 1st Respondent having started and was developing the said Plot. That the Federal Government or its agencies or officials, the 2nd and 3rd Respondents could arbitrarily revoke the 1st Respondent’s right without due process.

Mr. Gulak of counsel (sic) said that Exhibits A, B and C read together indicated that the plaintiff was not in default of the conditions stipulated in Exhibit A, as the relevant authority (the 3rd Respondent) gave approval for the development of the Plot by the plaintiff in 1994, wherein the 1st Respondent started development immediately. That Section 197 (2) of 1999 Constitution of the Federal Republic of Nigeria and Section 1(3) of the Federal Capital Territory Act gave the right of control and administration of all lands in the FCT to the Federal Government as against control and administration of Lands in the various states of the Federation. That the provision of the 1999 Constitution and the Federal Capital Territory Act do not give the 2nd and 3rd Respondents absolute right to revoke the 1st Respondent’s right of Occupancy without regard to due process according to the law.

Having considered in depth the arguments of the parties I would say that the academic gymnastics of the learned counsel for the Appellant as to the non-application of the Land Use Act in the Federal Capital Territory and the lack of possessory interest in the land in the Federal Capital Territory has no value in the case in hand. This is because the certificate of occupancy of the Respondent was clearly under the Land Use Act which was and applicable in keeping with that operative law and the intention of the parties to the Certificate of Occupancy.

I would reiterate that where the language, terms, intent or words of any part or Section of a written contract, document or enactment are clear and unambiguous as in this instance, they must be given their ordinary and actual meaning as such terms or words used best declare the intention of the parties unless this would lead to absurdity or be in conflict with some other provisions thereof. Therefore, where the language and intent of an enactment or contract is apparent, a trial court must not distort their meaning. I place reliance on Olatunde v. Obafemi Awolowo University (1998) 5 NWLR (pt. 549) 178.

Also since the Certificate of Occupancy was the contract paper and based on the Land Use Act which was even emphasised would govern the allocation or cancellation thereof and so the ordinary grammatical meaning in the document must be given. See National Assembly v. President of Nigeria (2003) 9 NWLR (pt 824) 104; Effiong v. Ikpeme (1999) 6 NWLR (pt 606) 260; City Engineering ltd v. NAA (1999) 11 NWLR (pt. 625) 76.

In the light of the above I resolve the two issues I and 2 in favour of the 1st Respondent and that is that the Land Use Act applied to this contract between the 1st and 200 Respondents and that the

Certificate of Occupancy granted by the 2nd Respondent to the 1st Respondent is the overriding contract document. That it is not open to any party to the proceedings to make such a complaint. The controverting the application of that Act. I refer to chime v. Chime (2001) 3 NWLR (pt 701) 527.

ISSUE 3

learned counsel for the Appellant stated that whenever the doctrine of lis pendens applies, the doctrine of bona fide purchaser for value without notice will not avail a purchaser who buys property that is the subject matter of litigation during the pendency of an action. That the corollary of the above is that if application of the doctrine of lis pendens had not been proved, the defence of bona fide purchaser will definitely be upheld. That in order to apply the doctrine of lis pendens the party relying on the doctrine has the burden of pleading and proving the basic requirements of the doctrine which are found in the case of Ikeanyi v, ACB Ltd (1991) 7 NWLR (pt. 205) 639.

Prof Osipitan of counsel said there was no evidence before the court below that Appellant’s vendor ie the 3rd Defendant was aware of the pendency of the suit at the time of the transfer of the land to her. That the record of appeal shows that the 3rd defendant (appellant’s vendor) was joined as a party to the suit on 20/1/97. He said the joinder was evidently after the land had been sold to the appellant in November 1996 by the 3rd Defendant and prior to 20/1/97. There was no pending suit between 1st respondent and the 3rd defendant who was the appellant’s vendor. He referred to the record pages 164, 167, 168, 171 and 191, 205, 206,

Learned counsel for the Appellant concluded by saying that the doctrine of Lis pendens was wrongly applied to the case at hand as the appellant is a bona fide purchaser for value without notice.

Learned counsel for the 1st Respondent stated that the doctrine of Lis pendens prevents effective transfer of right in property while its subject matter is in a pending suit. That lack of notice of purchasers does not affect invalidity of transaction as it is illegal and void in any event. He stated further that the Appellant could not have acquired any interest in plot NO. 109 Wuse II District Abuja if they had exercised due diligence and the 3rd Respondent, the Federal Capital Development Authority (FCDA) could not have registered the Power of Attorney over plot 109 Wuse II District in favour of the Appellant having been aware that there is a pending suit in respect of the plot 109 Wuse II District since 17th September 1996 when the case against it in respect of the plot was filed. That any interest acquired during the pendency of a suit cannot stand as it is caught by the doctrine of lis pendens. He cited Allied Bank of Nigeria Plc v. Bravo W/A Ltd (1996) 3 NWLR Cpt439) 710; Clay Industries (Nig.) Ltd v. Aina & ors (1997) 7 SCNJ 491; Fakoya v. Taiwo (1995) NWLR (pt 413) 378 at 385; Alakiya v. Abdulai (1998) 6 NWLR (pt 522) 1. Learned counsel said that the 2nd and 3rd Respondents cannot take over the property of the 1st Respondent even for overriding public purposes without adequate compensation. He cited Section 44(1) of the Constitution of the Federal Republic of Nigeria 1999.

That any purported acquisition which is not in complete compliance with the provisions of the law, is completely null and void. Any entry pursuant to such a void acquisition is trespass which will be ground in damages. He cited Attorney General Bendei State v. Aideyan (1989) 9 5C 127.

In reply on points of law, Prof. Osipitan said, if as happened in this case the vendor ie. 3rd defendant had not been served with the Originating and subsequent court processes at the time of transfer of land to the Appellant and was never served with any of the processes filed in the court below, there can be no basis for an application of Lis pendens. He cited management Enterprises Ltd v. Otusanya (1987) 2 NWLR (pt 55) 179.

It is necessary to restate that rights to all land held prior to the promulgation of the land Use Act were never extinguished. The owners are no longer holding radical title. Their ownership are now limited to a right of occupancy. Therefore, if there is any claim by the former owners that claim must be converted to a claim to a right of occupancy. The relationship that existed between the owners as landlord and their tenants continued. There is no Section in the Land Use Act which seeks to severe the existing relationship. By Section 36(1) and (2) of the Land Use Act, the customary rights of both the customary tenant have been preserved. What Section 1 of the Act did was only to create a trust and vested same in the Governor of each state where the land is situated but certainly it has not taken away the rights of customary owners to enjoyment of the tribunal.

Rather, it left them untouched. See Dagaci v. Dagaci supra at 408; Abioye v. Yakubu (1991) 5 NWLR (pt 190) 130.

In areas not declared urban by a State Government everybody remains where he had always been as if the Land Use Act had vested in him a customary right of occupancy. A holder of land before the commencement of the Act holds under the said land as before.

Hence, a claim for forfeiture available before the Act remains after the commencement of the Act, the same. See Dagaci v. Dagaci (supra) 409 paras A – B; Abioye v. Yakubu (supra).

The provisions for the revocation or acquisitions under the Land Use Act were extensively dealt with in the case of:

NITEL v. Ogunbuyi (1992) 7 NWLR (pt 255) 543:

1. The governor of a state has extensive powers to compulsorily acquire properties situate within the state for overriding public interest. To this end, it shall be lawful for him to revoke in favour of a holder of the right of occupancy.
2. In exercising the Governor’s powers of revocation, there must be due compliance with the provisions of the Land Use Act 1987 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.
3. Where the intended revocation of a right of occupancy failed to comply strictly with the provisions of Section 28(6) & (7) and 44 of the 1978 Land Use Act, such revocation will be null and void and of no effect.
4. The purposes 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 said right of occupancy
5. The crucial prerequisite in Section 28(6) & (7) of the Land Use Act; 1978 Is the requirement of a notice of such revocation of a right of occupancy to be given to the holder of a right of occupancy sought to be revoked.
6. Section 44(e) of the Land Use Act 1978 providing for leaving the notice with some person in the premises/ the subject of the revocation/ or by affixing it to some conspicuous part of the said premises where it is not practicable to ascertain the name and address of the holder.

Prof. Osipitan made much of the fact that Appellant acquired his interest bona fide without notice of the pending suit of the 1st Respondent against the other Respondents. It is for that, that I would refer to what the practice is in relation to the invocation of the doctrine of lis pendens and its effect on the interest of anyone caught in the web of a challenger who was already in court. See Allied Bank (Nig.) PLC v. Bravo W/A Ltd (1996) 3 NWLR (pt 439).

“The doctrine of Lis pendens affects a purchaser not because it amounts to notice but because the law does not allow to litigant parties and give to them pending the litigation/ rights in the property in dispute, so as to prejudice the opposite party. Thus, where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding, not only on the litigant parties, but also upon those who derive title under them by alienation made pending the suit; whether such alienation had or had not notice of the pending proceedings.

If this were not so, there could be no certainty that the litigation would ever come to an end. See Barclays Bank of Nigeria Ltd v. Ashiru (1987) 6 – 7 SC 99 at 125”.

The Land Use Act vests, all land comprised in the territory of each state solely in the Government of the State who would hold such land in trust for the people and would henceforth be responsible for the allocation or grant of land in all urban area to individuals for commercial and other purposes while similar powers with respect to non- urban area are conferred on the Local Governments. The only exception is with regard to land vested in the Federal government. See Dagaci v. Dagaci (supra) 395.

It is a well established principle of law that any expropriatory statute that seeks to deprive a citizen of his right of his property by way of compulsory acquisition of the said property must be strictly construed against the law maker. See Din v. Attorney General Federation (1988) 4 NWLR (pt 87) 147 at 148.

The learned trial Judge stated in his judgment:-

“The suit was commenced in 1996 and from the evidence of DW2 the 4th defendant bought the land from the 3rd defendant in 1998. I doubt if there was any diligent search in the Land Administration Registry. The 3rd defendant; by the affidavit of service Sworn to by Abdullahi Danladi; a court bailiff on 24/7/97 became aware of the pendency of this suit on 23rd July 1997. Even if the 4th defendant conducted a search it is my view that the 3rd defendant and the so-called agent and some officers of the 2nd defendant may have colluded to mislead the 4th defendant. The doctrine of Lis pendens applies. The 4th defendants lack of knowledge cannot save it to the detriment of the plaintiff The 1st and 2nd defendants having failed to prove the service of the mandatory revocation notice on the plaintiff; the purported revocation of the plaintiff’s right of occupancy over plot 109 A8 Wuse II District Abuja held under Certificate of Occupancy NO. FCT/ABU/BA.50 dated 12th April, 1988 registered as NO. FC 107 at page 107 in volume 15 in the Land Administration Land Registry office at Abuja is null and void and of no effect whatsoever. The plaintiff is therefore still entitled to the Statutory Right of Occupancy over the said Plot 109 located at A8 Wuse II District Abuja As the re-allocation of the plot to 3rd defendant is based on the purported revocation of the plaintiff’s right which revocation has been declared null and void the 1st and 3rd defendants had nothing to re-allocate to the 3rd defendant The 3rd defendant therefore had nothing to sell or transfer to the 4th defendant”.

I have on my own perused the Records with particular reference to the evidence and the documents tendered and admitted. Clearly the evidence oral and documentary support the findings and evaluation by the learned trial Judge and my hand therefore is held back from disturbing those findings and the consequent conclusions.

On the revocation I would state as done by the court below that failure to put the plaintiff/Respondent on notice of the revocation of the right of occupancy had the effect of rendering ineffectual the purported revocation of that right of occupancy. See NITEL v. Ogunbiyi (supra) at 557.

In Ikeanyi v. A.C.B. Ltd (1991) 7 NWLR (pt 205) 626 at 637, it was held:-

Where litigation is pending between a plaintiff and a defendant as to their rights over a particular estate the decision of the court in the suit is binding not only on the litigant parties but also upon those who derive title under them by alienation made pending the suit whether such purchasers had or had not notice of the pending proceedings. However, it must be shown that before the alienation of the property, the suit is in full prosecution in the sense that the defendant must have actually been served with or must be shown to be aware of the existence of the plaintiff’s summons.

The doctrine of Lis penderns does not apply to every suit but only to a suit in which the object is to recover or asset title to a special real property. See Barclays Bank of Nigeria Ltd v. Ashiru 91978) 6 – 7 SC 99.

From the evidence proffered at the court below and the evaluation thereof, of the learned trial Judge which cannot be faulted the interest of the Appellant had clearly been extinguished by the fact that the suit of the 1st Respondent against the 2nd and 3rd Respondent to reassert his title was an ongoing trial at the time of the acquisition of the Appellant of his purported interest which came to naught or an interest with zero value. Therefore Issue No3 Is answered negatively and I hold in favour of the 1st Respondent.

ISSUE NO.4

Learned counsel for the Appellant submitted that in the absence of claims/reliefs against Appellant in the Statement of claim, the learned trial Judge wrongly made declaratory and injunctive orders against her. That the court below granted 1st Respondent reliefs which he neither claimed nor sought against the appellant and this that court cannot do. He cited the cases of Ekpenyong v. Nyong (1975) 2 SC 71 at 80 – 81; Dagaci v. Dagaci of Ebwa (2002) 7 NWLR (pt. 712) 398; Bank of the North Ltd v. Miri (1998) 2 NWLR (pt 536) 153 at 167; Adeyeye 1; Nigeria Air force v. Shekete (2002) 18 NWLR (pt 798) 129.

Prof. Osipitan further contended that in cases of declaration of title to land, trespass and injunction, it is necessary and mandatory for specific claims to be made against the title of a party in order for such registered title to be voided.

Learned counsel for the Appellant submitted in the alternative that even if the 1st Respondent had claimed for declarations and injunctive reliefs against her and her title, learned trial Judge having regard to surrounding circumstances ought not to have granted the reliefs sought. That declarations and injunctions are discretionary equitable reliefs and are not granted as a matter of course. That equitable defence are available to defendants in declaratory actions. He cited Makanjuola v. Ajilore (2001) 12 NWLR (pt 727) 416 at 437.

Learned counsel for the Appellant stated on that the mere fact that the court below found that the 2nd Respondent breached the provisions of Section 28 of the Land Use Act does not warrant the automatic grant of the equitable reliefs of declaration and injunction against the Appellant. That it is settled law ,that the court will not grant declarations where it is inequitable to do so. He referred to Bagudu v. FRN (20040 1 NWLR (pt 853) p. 182 at 205 – 206; Ode v. Balogun (1999) 10 NWLR (pt 622).

Learned counsel for the 1st Respondent stated that without service of the notice of revocation on the holder of a right of occupancy sought to be revoked, the revocation is ineffective. He cited the cases of:

1. NITEL II Ogunbiyi(1992) 7 NWLR (pt 255) 543.
2. Attorney General Lagos State v. Sowande (1992) 8 NWLR (pt 261).
3. Olatunji v. Military Governor of Oyo State (1995) 5 NWLR (pt 397)
4. Jegede v. Citicom (2001) 3 WRN 1.

Mr. Gulak of counsel, stated that a Right of occupancy once granted is not revoked except as provided by law. He cited kari v. Abbaganaram (19970 2 NWLR (pt 488) 380. He said that the fact established by evidence at the lower court is that there was no valid revocation of the 1st Respondent Right over plot 109 Wuse II District and since there was no valid revocation the purported reallocation of the said plot 109 Wuse II District, Abuja to the 3rd defendant was invalid, the purported transfer of interest over plot 109 Wuse II District by 3rd Defendant to the Appellant was equally invalid. That the 1st Respondent submits that the 2nd and 3rd Respondent were aware of the suit against them. That even if the Appellant was not aware of the suit before they purportedly purchased the plot, their lack of knowledge cannot protect them.

Learned counsel for 1st Respondent submitted that assuming without conceding that the 3rd Defendant was not served with the court process the Appellant cannot complain. That for a party to a suit to complain for reason of failure of service where service is a requirement, it must be established that he was not served in respect of the proceedings.

Mr. Gulak said it was not the case of the 2nd and 3rd Respondents at the lower court by their pleadings and it was also not the case of the Appellant at the lower court on their pleadings. That parties are bound by their pleadings and any issue not raised in pleadings go to no issue. He referred to:

1. Kyari v. Alicali (2001) 11 NWLR (pt 724) 412 at 423 & 424
2. Atolagbe v. Shorun (1985) 1 NWLR (pt 2) 360.
3. Metalimpex v. A.G Leventis 7 Co. Ltd (1976) 2 SC 91.
4. Oniah v. Oniah (1989) 1 NWLR (pt 99) 514.
5. Ogunlowo v. Ogundare (1993) 7 NWLR (pt 307) 610.

Learned counsel for the 1st Respondent submitted that the combined effects of Exhibits A, B, C that in 1994, the 2nd and 3rd Respondent granted permission to develop plot 109 Wuse II District, Abuja. That on the records and evidence accepted by the lower court the 1st Respondent immediately commenced development of his plot 109 Wuse II district and carrying on with his development in accordance with the approval granted by the 2nd and 3rd Respondents, same engaged on the purported revocation of the rights of the 1st Respondent and demolished the structure put up by the 1st Respondent. That the 2nd and 3rd Respondents had nothing to allocate for the 3rd Defendant and the 3rd defendant equally had nothing in plot 109, Wuse II to transfer to the Appellant.

Learned counsel for the 1st Respondent submitted that the declaratory reliefs and injunctions were quite right having regard to the pleadings of the plaintiff and the injunctive reliefs are consequential orders naturally following the declaratory judgments made. That since the purported revocation was done without due regard to due process, the purported reallocation to the 3rd Defendant was equally void ab inito and the purported transfer by the 3rd Defendant to the Appellant was also void. That you cannot put something on nothing and expect it to stand it will collapse. He cited macfoy v. UAC (1962) AC 152 at 160; Salati v. Shehu 91986) 1 All NLR pt 1 page 50.

Learned counsel for the 1st Respondent submitted that the issue joined on the state of the pleadings of the parties at the lower court, the evidence adduced and the findings of fact of the trial Judge, the trial Judge was right in granting declaratory relief against all the Defendants including the Appellants, whose purported title was stricto senso tied to the right of the 1st and 2nd Defendants, now 2nd and 3rd Respondents in this appeal. That it must be noted that the 2nd and 3rd Respondents in this appeal were the 1st and 2nd Defendants in the trial court against whom the action was principally instituted. That these sets of Respondents have not appealed against the judgment of the trial court, which nullified their actions (the purported revocation of the 1st Respondent’s right over plot 109, Wuse II District, Abuja) and the purported reallocation of the said plot to the 3rd Defendant through whom the Appellant purportedly acquired interest in the plot.

In the Appellant’s Reply Brief learned counsel stated that a declaration is an equitable remedy which calls for a careful balancing of competing interests. That the plaintiff must prove his case and the justice of the case must merit the declaration more than any other relief. Also that declarations are to be granted sparingly and should be withheld when its grant will result in chaos. He cited Fasein v. Oyerinde (1977) 11 NWLR (pt 5300 558 at 561; S.B.N. v Crown Stars & Co. Ltd (2003) 6 NWLR (pt 815) 1 at 16 – 17; Badejo v. Federal Minister of Education (1996) NWLR (pt 464) 15 at 41; National Assembly v. President (2003) 9 NWLR (pt 824) 104.

A declaratory relief is a discretionary remedy which is not granted as a matter of course and the court must be satisfied before granting it that the plaintiff or claimant has a very strong and cogent case both from his statement of claim and from the evidence he adduces in support thereof. The plaintiff must satisfy the court that under all the circumstances of the case, he is fully entitled to the discretionary reliefs in his favour, when all facts are taken into consideration. See Makanjuola v. Ajilore (2001) 12 NWLR (pt 727) 416.

In an action for declaration of title to land, trespass and injunction, the burden or onus of proof is always on the plaintiff who must rely on the strength of his own case and not on the weakness of the defendant’s case to show that he is entitled to the reliefs he claims. The exception is that where a defendant based his case on facts which support the plaintiff’s case, the latter can use the facts which support his case to establish his own case. See Adesanya v. Otuewu (1993) 1 NWLR (pt 270) 414; Sanusi v. Ameyogun (1992) 4 NWLR (pt 237) 527; Odukwe v. Ogunbiyi (1998) 8 NWLR (pt.561) 339; Osho v. Ape (1998) 8 NWLR (pt 562) 492.

A plaintiff has the primary duty to prove his claim first and the Evidence Act requires and enjoins the plaintiff, as he who asserts, to prove his assertions. Even where the defendant has failed to file a statement of defence; it is still the duty of the plaintiff, if he is to succeed in the case, to lead satisfactory evidence to warrant the grant of declaratory or equitable reliefs in his favour. The non – denial by admission of the defendant cannot help or avail the plaintiff in the discharge of his burden or onus in this regard or even to rely on the weakness of the defendant’s case. see Bello v. Eweka (1981) 1 SC 101; Orji v. Emovon (1991) 1 NWLR (pt 168) 476; Titilayo v. Olupo (1991) 7 NWLR (pt 205) 519; Gnu v, Agu (1996) 5 NWLR (pt 415) 652.

Having attempted to set out the definition of a declaration in a judicial contest and included therein the circumstances in which the court has the power to grant such declaratory reliefs or injunctions it must be stated and quite strongly that he who comes to equity or intends to resort to equity’s favour has of necessity to be vigilant.

This is so because the law will aid those who are watchful and not those who are asleep, a situation that seems to have been the lot of the Appellant. If Appellant or his agent had conducted proper search as is required in a land transaction they would have not only found the much earlier title of the 1st Respondent obtained ten years before and also that the 1st Respondent was fighting not to have that title or right taken away by the 2nd Respondent which process was pending for two years before the acquisition by the Appellant. See Fasesin v. Oyerinde (1997) 11 NWLR (pt 529) 552.

It is for the prevailing circumstances of this case that I cannot indulge the frustration of the Appellant who has exhibited a degree of carelessness. How to reward that lack of carefulness to the disadvantage of the one who rightly possesses the title or right especially since in his case against his opponent he showed sufficient proof that the attempt to revoke his title was outside the terms of his Certificate of occupancy and the law, being the Land Use Act to which he and the 2nd and 3rd Respondents were bound.

The basis of the gripe of the Appellant in this Issue NO 4 is absent and I have no ground upon which I can find for him. This issue is resolved in favour of the 1st Respondent.

In totality therefore this appeal fails as lacking in merit. I dismiss it and affirm the judgment of the Court below with the orders that accompanied that decision.

Costs of N10,000.00 to the 1st Respondent to be paid by the Appellant.

---

Other Citations: (2007)LCN/2184(CA)