Usman Kayode Olomoda V. Mr. Olaniyi Mustapha & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

Alhaji Senator Ayinla Olomada (now deceased) was the original claimant in Suit No. KWS/134/2007. He was granted a parcel of land measuring 3636.16 sq. meters at No. 38 Station Road, llorin by the Kwara State Government for residential purposes. The grant which was for a period of 99 years was covered by Certificate of Occupancy No. KW 4104 dated 16 June, 1981. The Certificate of Occupancy contained some special terms and conditions. Clause 1(4) of the terms and conditions provided as follows: –

“Within three years from the date of commencement of this right of occupancy to erect and complete on the said land, the buildings or other works specified in detailed plans approved or to be approved by the Town Planning Authority or other officer appointed by the Governor, such buildings or other works to be of the value of not less than N30, 000. 00 (Thirty Thousand Naira) only and to be erected and completed in accordance with such plans and to the satisfaction of the said Town Planning Authority or other officer appointed by the Governor”.

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After taking possession of the land, the appellant fenced it and built a gatehouse at the entrance to the land. He subsequently built a two-bedroom bungalow and was farming on the remaining portion of the land. On 20 February, 2007 the Commissioner of Lands and Housing, Kwara State sent some officials of the Ministry to inspect the land. He was surprised and shocked to see strangers on the land on 12 October, 2007 who forced their way into the land by destroying and removing the gate house and padlock. He reported the trespass to the Police. The Police investigation revealed that the entry into the land had been facilitated by the 3rd Defendant who divided the land and then shared it out to the 1st and 2nd Defendants. In pursuance of the re-allocation of the land; the defendant sent workers into the land to commence construction of a swimming pool on a portion of the land and in the process destroyed the gate house together with the gate door. Crops such as cassava and maize which were being grown on the land were also destroyed to make room for the swimming pool.

The claimant claimed that he was not given a notice of revocation when the 1st defendant entered the land. But the

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3rd defendant disproved this by stating that the claimant was served a revocation NOTICE by the 3rd defendant by a letter dated 18 October, 1999 for breach of the terms of the grant and on receipt of the notice of revocation pleaded for its cancellation. The claimant later instituted an action before the Kwara State High Court by way of Originating Summons. He lost at the High Court and appealed to the Court of Appeal but the appeal was dismissed in the Court below, hence the further appeal to this Court.

During the pendency of the appeal, the original appellant died and an application to substitute the deceased appellant was granted by this Court on 6 March, 2018 and the appellant’s brief reflecting the name of the substituted appellant was re-filed on 22 March 2018.

The appellant submitted five issues for determination from 9 grounds contained in the Notice of Appeal: –

1. Whether the terms of the grant ousted the application of Section 50 of the Land Use Act in the determination of the propriety or otherwise of the revocation of the grant (Grounds 1 and 2).
2. Whether clause 1(4) of the terms of the grant made

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pursuant to Sections 8 and 9 of the Land Use Act are expressly incorporated or formed part of the Land Use Act and therefore cannot be waived (Grounds 3 and 4).

3. Whether the mode and the address to which the revocation Notice Exhibit MOJ3 was set met the requirements of Section 44 of the Land Use Act having regard to Exhibits MOJ 1 and MOJ 2. (Grounds 5 and 6).
4. Was the Court of Appeal right to have failed to make specific decision or finding on whether or not Exhibit MOJ.3 is an instrument and/or evidence of revocation of Appellant’s land as was duly submitted for adjudication (Grounds 7).
5. Whether the Court below made proper use of the evidence before it in arriving at its conclusions on Appellant’s claim for damages (Grounds 8 and 9).

Each of the respondents filed his or its brief of argument and all their briefs were deemed as properly filed on 15/10/2018. While adopting the issues raised by the appellant for determination, the 1st respondent filed a preliminary objection which was argued from pages 2-11 of the brief. The 2nd and 3rd respondents each had four issues for determination but they couched their issues differently.

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