(2018) LPELR-44734(CA)

Transcription

1 ADEBO v. EXECUTIVE GOVERNOR OF OYO STATE & ORS CITATION: In the Court of Appeal In the Ibadan Judicial Division Holden at Ibadan CHINWE EUGENIA IYIZOBA HARUNA SIMON TSAMMANI NONYEREM OKORONKWO ON WEDNESDAY, 13TH JUNE, 2018 Suit No: CA/IB/183/2015 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal MR. ABIODUN ADEBO - Appellant(s) And 1. EXECUTIVE GOVERNOR OF OYO STATE 2. HON. COMMISSIONER FOR LANDS, HOUSING & SURVEY, OYO STATE 3. HON. ATTORNEY GENERAL & COMM. FOR JUSTICE, OYO STATE RATIO DECIDENDI - Respondent(s) 1. APPEAL - FRESH POINT(S) ON APPEAL: Whether leave of Court must first be sought and obtained before fresh point can be raised on appeal; effect of failure thereof "Appellant's counsel, Mr. Onipede is right that the issue of the date of cause of action was not raised at the trial Court. The Respondent can only raise it here with the leave of the Court. Not having obtained such leave, all submissions on the point are incompetent and are hereby discountenanced."per IYIZOBA, J.C.A. (P. 6, Paras. D-E) - read in context

2 2. COURT - POWER OF COURT: Power of a judge to make reference to the case filed before him and make use of any document he finds necessary "Learned counsel for the Respondents is right that a Court has the inherent power to make use of all the evidence and materials placed before it to do justice in the case before it. The learned trial judge in his judgment at page 194 observed: "There is no evidence of bad faith on the part of the government. There is also no evidence that the land was given to another Individual, In short, there is no evidence that the land has been used for purposes other than public purpose. The instant case is distinguished from Obikoya & Sons Ltd v. Lagos State (1987) 1 NWLR (Part 50) 385 at 403 which was relied upon by the learned claimant's counsel. The Claimant in that case discovered that the land was taken from him and given to another individual. That could not have been for overriding public interest. But in the instant case, the land in dispute was not given to another individual. It was revoked for overriding public interest because of its close proximity to the Government House." The conclusions above are based on evidence before the Court. Before the Appellant finally approached the Court, there had been series of correspondences between the Appellant and the Respondents. The government had told the Appellant the purpose of the revocation which had to do with the security around Government House. The appellant then wrote to the governor appealing to him to cancel the revocation and undertaking to construct the fence of his building to back the Government house. This was rejected by the Government. These letters were pleaded by the Appellant at page 13 of the Statement of claim and were tendered in evidence as Exhibits. Counsel's contention that these issues were not before the Court is consequently not correct. The evidence was put before the Court that the land was revoked for overriding public interest because of its close proximity to the Government House. The Appellant's claim that the judgment of the trial Court was based on issues the Court raised suo motu is not correct."per IYIZOBA, J.C.A. (Pp , Paras. A-E) - read in context 3. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proving that a revocation of title to land was not made in public interest "The Appellant was the holder of a Statutory Right of Occupancy of that land situate, lying and being at Plot 1, along Government House, Ikolaba Grammar School, Agodi G.R.A, Ibadan. However, the certificate or right granted him over the land was revoked on the 13/9/1999 pursuant to Section 28 of the Land Use Act vide Exhibit D. Exhibit D stated that the grant was revoked for overriding public interest. In such a situation, the burden was on the Appellant to prove that the land was revoked for reasons other than overriding public interest. This is because the law casts the burden on he who desires the Court to give judgment in his favour. Accordingly, the Appellant had the onus to show that the revocation of the land granted him was not done in accordance with the relevant statutory provisions."per TSAMMANI, J.C.A. (P. 30, Paras. A-E) - read in context 4. LAND LAW - REVOCATION OF RIGHT OF OCCUPANCY: Whether state laws apply to revocation of right of occupancy "There is clearly a misconception here as to the incidence of a holder of a right of occupancy whose right was revoked and a lessee of State land whose lease was forfeited for non payment of rent. The difference was clearly brought out in the case of OSHO & ANOR V FOREIGN FINANCE CORPORATION & ANOR (1991) LPELR-2801(SC). In the case, the Plaintiff Foreign Finance Corporation (hereinafter referred to as FFC) was a lessee of Lagos State Development and Property Corporation (LSDPC) in respect of State land managed by LSDPC, Plot no 10 Mushin Light Industrial Estate Scheme 11 comprised in the Deed of Lease dated 26/1/76 and registered as No. 77 at page 77 Volume 1534 of the Lands Registry in the office at Lagos. LSDPC alleged that FFC fell into arrears of rent and refused to pay despite repeated demands and had thereby forfeited its lease. By a revocation order under Section 28 Land Use Act 1978 signed by the Commissioner of Economic Planning and Land Matters Lagos State the Plaintiff's (FFC) right of occupancy was revoked. The land was then allocated to the Appellants Osho and BAO Motors Ltd. Without following due process, LSDPC and the Appellants broke into the land destroying FFC's property and goods. FFC sued LSDPC and the two Appellants claiming special and general damages for trespass and the destruction of his property and goods. At the High Court, judgment was entered in favour of the Plaintiff FFC for damages for trespass and injunction. The Appellants' appeal to the Court of Appeal was dismissed on the question of liability although there was reduction of damages. Further appeal to the Supreme Court was dismissed unanimously. The Supreme Court made it clear that there is a difference between the interest of a lessee of State land and the interest of a holder of right of occupancy as the holder of a right of occupancy enjoys a larger interest than the holder of a lease. It referred to the definition of State land in Section 2 of the State Lands Law Cap 130 Vol. 7 Laws of Lagos State 1973: "all public lands in Lagos State which are for the time being vested in the Military Governor on behalf of or on trust for the benefit of the Government of Lagos State and all land heretofore held or hereafter acquired by any authority of Lagos State for public purpose or otherwise for such benefit as well as land so acquired under any enactment." There is thus a difference between land owned by the government through its various agencies and statutory bodies as opposed to land in respect of which a right of occupancy has been granted to an individual or a citizen. Land owned by government through its agencies and statutory bodies can be leased to individuals as in the case of OSHO & ANOR V FOREIGN FINANCE CORPORATION & ANOR. Such lease is quite apart and different from the grant of a right of occupancy under the Land Use Act By semantics, a person holding a lease of government land has a right of occupancy which could be revoked by the government. But the incidence of such revocation depends on the grounds for the revocation. Revocation of right of occupancy for public purpose is governed by the Land Use Act Revocation on grounds of non payment of rent or breach of any of the covenants either under a lease or certificate of occupancy is governed by the State Lands Law. As long as the occupant is in possession and has put up structures on the land, the government cannot take over possession vi et armis. OJUKWU V MILITARY GOVERNOR OF LAGOS STATE (1985) 2 NWLR (PT.10) 806. It must follow due process. That is the crux of the judgment of the Supreme Court in OSHO & ANOR V FOREIGN FINANCE CORPORATION & ANOR. The position is quite different in the instant case where the Appellant was granted a right and Certificate of occupancy by the Respondents. His right of occupancy was revoked for public purpose barely five months after its grant and no structures had been put on the land. The revocation must be considered under the Land Use Act. Proper revocation under the Land Use Act for public purpose does not require any judicial process and the State Lands Law is inapplicable. The learned trial judge was consequently right in his observation at page 195 of the Record thus: "The claimant relied heavily on S. 17 of the State Lands Law, Cap 119, Laws of Oyo State This law is not applicable to this case. The Claimant's Certificate of Statutory Right of Occupancy Exhibit C was issued to him under the Land Use Act and the revocation order Exhibit D was effected under S. 28 of the Land Use Act. The submission of counsel made with reference to Law i.e. S. 17 of the States Land Law of 1978 is therefore misplaced." I agree with the learned trial judge. The State Lands Law has no application to the revocation, notwithstanding the wordings of the letter of revocation "FORFEITED PROPERTY: LEASE OF LAND etc..." That must be what created the confusion in the mind of the Appellant that the rules relating to forfeiture under the State Lands Law ought to apply."per IYIZOBA, J.C.A. (Pp , Paras. F-B) - read in context

3 5. LAND LAW - REVOCATION OF RIGHT OF OCCUPANCY: Whether the reason for revoking a person's right of occupancy must be stated in the notice of revocation "A proper resolution of issue 2 calls for the setting out of the relevant provision of the Land Use Act. Section 28(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 there under; (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 (3) sets out what Overriding public interest is in the case of a customary right of occupancy. (4) The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes. (5)... (6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized 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 It is clear then and there is a long line of authorities that revocation of a right of occupancy under Section 28 of the Land Use Act must be for overriding public interest which has been specifically defined in the section. The applicable subsection here is 28(6) 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. See the following cases cited by learned counsel for the appellant. EREKU V. MILITARY GOVERNOR, MID- WESTERN STATE OF NIGERIA (1974) ALL NLR ; OSHO V. FOREIGN FINANCE CORPORATION (SUPRA) D-E; PROVOST, LAGOS STATE COLLEGE OF EDUCATION V. EDUN (2004) 3 SCM 191@212. See also DANTSOHO V MOHAMMED (2003) LPELR-926 (SC) where MOHAMMED JSC observed: "I agree that the power of the Governor to revoke a right of occupancy must be for overriding public interest and for the requirement of the Federal Government for public purposes. Any revocation which does not comply with the provisions of S. 28 of the Land Use Act is invalid..." While it is true that the authorities indicate that the specific public purpose for which the land was revoked should be set out in the Notice of Revocation, it should be noted that most of the cases in which such was stated deal with instances where the revocation was invalid such as where the land was revoked and given to another individual which is clearly not a public purpose. Where there is evidence that the land was indeed revoked for overriding public purpose and so applied, the fact that the specific public purpose was not specified in the Notice of Revocation will not invalidate the revocation as that requirement is not specified in the Act. In the case of C.S.S. BOOKSHOPS LTD. V. THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 6 SCM 70 or (2006) LPELR-824 (SC) MOHAMMED JSC observed: "It is not at all in doubt that the provisions of Section 28 of the Act contains comprehensive provisions to guide the Governor of a State in the exercise of his vast powers of control of land within the territorial areas of the State particularly the power of revocation of a right of occupancy. One of the preconditions for the exercise of this power of revocation is that it must be shown clearly to be for overriding public interest. In order not to leave the Governor in any doubt as to the conditions for the exercise of his power, the law went further to provide adequate guidance by defining in clear terms what overriding public interest means in the case of a statutory right of occupancy under the Act in Subsection (2) of Section 28. What this means of course is obvious. Any revocation of a right of occupancy by the Governor in exercise of powers under the Act must be within the confine of the provisions of Section 28 of the Act. Consequently, any exercise of this power of revocation for purposes outside those outlined or enumerated by Section 28 of the Act or not carried out in compliance with provisions of the section, can be regarded as being against the policy and intention of the Land Use Act resulting in the exercise of the power being declared invalid null and void by a competent Court in exercise of its jurisdiction on a complaint by an aggrieved party." The complaint of the Appellant must consequently be that the Respondents in the revocation of his statutory right of occupancy did not comply with Section 28(6) of the Land Use Act. In other words, that the revocation was not for overriding public interest. The burden on the appellant is not merely to show that the type of public interest was not specified in the Notice of Revocation. The attitude of the Courts have been to construe the relevant section of the Act fortissimo contra preferentes strictly against the acquiring authority and sympathetically in favour of the complainant or owner whenever there is indication that the acquisition was not for overriding public purpose; hence their preparedness to read into the section what is strictly not a requirement of the section. The Courts will surely not follow that route when there is abundant evidence that the revocation was for overriding public purpose. Learned counsel for the Respondent is right in his submission that the revocation in this appeal complied with all the law and that the Appellant failed to establish the breach of any relevant extant Law. The sole witness called by the Appellant did not allege non service of any of the statutory notices. He did not aver that the land was put into other use not consistent with overriding public purpose. On the contrary, as argued by the Respondents, the undertaking given by the Appellant in his letter of appeal at Page 11 of the record to construct the fence of his building to back the Government House Road is prime facie evidence of knowledge of the Appellant that the revocation was indeed for overriding public purpose - security of the Government house grounds. DWI had testified that the 4 plots revoked along with the Appellant's plot were originally part of the Government house grounds and that same had been landscaped into a beautiful Garden within the area of Government House. The Appellant failed to discharge the burden on him to prove that the revocation was not for overriding public purpose."per IYIZOBA, J.C.A. (Pp , Paras. D-E) - read in context

4 CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Oyo State High Court Ibadan Judicial Division in Suit No. I/874/2009 delivered on the 24th day of June, 2015 Coram E. ESAN J. The Appellant was granted Statutory Right of Occupancy dated 18th May, 1999, over property situate lying and being at Plot 1, Along Government House Ikolaba Grammar School, Agodi GRA, Ibadan under the last Military Administration in Oyo State. On the return to Civilian government under the administration of Governor Lamidi Adesina, the government found the plots allocated to private citizens along the Government House incongruous with government security and environmental policies and the executive council at the time revoked all the four plots so allocated, among which was the Appellant s plot. The allocations were revoked vide a notice dated 13th September, 1999 four months after the allocation pursuant to Section 28 of the Land Use Act for overriding public interest. The Respondents claimed the State Government did not hide its preparedness to either relocate the 1

5 affected citizens to another prime location or make requisite compensation to them but that no such request was made till date by the affected persons. The Appellant s case is that the land in dispute is State land on a lease granted to him by the Government. He claimed the respondents issued a forfeiture notice on the land by virtue of the provisions of Section 28 Sub Section 1 of the Land Use Act No. 6 of 1978 for overriding public interest, and that the respondents forfeiture did not follow due process of law under Slate Lands Law; that the lease of State land cannot be revoked under the Land Use Act; that the respondents had no right to revoke his right of occupancy; that the instrument of revocation was ultra vires, mala fide, null and void in that the lease of State land cannot be forfeited or revoked without recourse to due process of law. The Appellant also claimed that the instrument of forfeiture/revocation was null and void in that it did not state the specific public purpose for which the land was required. Thus dissatisfied by the revocation the appellant filed a writ on 23/06/09 seeking the following reliefs: 2

6 1. A Declaration that the purported revocation of the certificate of Statutory Right of Occupancy dated 18th May, 1999 and registered as No. 13 at page13 in Volume 3307 of the Lands Registry in the office at Ibadan by the defendants in the letter dated 13th September, 1999 is inappropriate, invalid, null and void and of no effect. 2. A Declaration that the purported forfeiture of the grant of the State land more properly described as Plot 1, Along Government House /Ikolaba Grammar School Road, Agodi G.R.A. is invalid, null and void as not having been done in accordance with the relevant statutory provisions. 3. An Order setting aside the purported revocation and forfeiture. 4. N1, 000, General damages against the defendants purported revocation and or forfeiture of the plaintiff s interest. 5. An Order of perpetual injunction restraining the defendants whether by themselves, their servants, agents, assignees from continuing trespass on the said land. The Respondents filed a joint Statement of Defence dated 28/09/12. At the trial, the Appellant called one witness and tendered several Exhibits Exhibits A E2. 3

7 The Respondents also called one witness and tendered Exhibits F K. Written addresses were filed and duly adopted. The learned trial Judge in his judgment delivered on 24/06/15 dismissed all the claims of the Appellant. Dissatisfied with the judgment, the Appellant on 22/07/15 filed a Notice of Appeal dated 22/07/15 containing three grounds of appeal. The parties filed and exchanged briefs of argument. The Appellants brief was settled by T.O. Onipede Esq. while the Respondents brief was settled by I. O. Tijani, Deputy Director of Civil Litigation 11, Oyo State Ministry of Justice. Out of the three grounds of appeal in the Notice of appeal, the Appellant formulated the following three issues for determination: 1. Whether the trial Court was right to hold that the Respondents can validly forfeit the lease of State land to the Appellant without recourse to the procedure provided under Section 17, State Lands Law, Oyo State (Ground 1). 2. Whether the trial Court was right in law in holding that an instrument of revocation under the Land Use Act is not invalid on the ground that it did not expressly state the specific purpose for which an interest in the land was 4

8 being revoked if such specific public purpose can be inferred from subsequent act of the grantee or from other subsequent documents after the revocation. (Ground 2). 3. Whether a Court can validly make up a case which was not put up by a party before it as was done by the trial Court for the respondents in this case. (Ground 3). The Respondents in their brief also formulated three issues as follows: 1. Whether with regards to the circumstances of the case, the Appellant successfully proved his claims so as to be entitled to judgment of the trial Court; 2. Whether it is the Land Use Act 1978 that is relevant in this matter or the State Land Law, 1978 particularly with the nature of the facts of this case and whether the state land law can predominate the Land Use Act with regards to revocation of Statutory Rights of Occupancy; 3. Whether the Government of a State has the power to (sic revoke) a Statutory Right of Occupancy under Section 28 of the Land Use Act 1978 for overriding public interest. 5

9 The Appellant in his Reply Brief raised a number of issues which I think should be resolved first before going into the main appeal. Learned counsel submitted that that Paragraph 1.02 to 1.11 of the Respondents' Brief of Argument under Introduction contains arguments instead of stating facts of the case and that this is at variance to the ethos of brief writing. He cited Nnaemeka-Agu, JSC: Manual of Brief Writing in the Court of Appeal and the Supreme Court (Second Edition), Page 38. It is not in doubt that the Respondents Introduction contained some elements of opinion and arguments. By and large, it was a summary of the facts from their own perspective that gave rise to the appeal. The few offensive parts will naturally be ignored by the Court. Appellant s counsel, Mr. Onipede is right that the issue of the date of cause of action was not raised at the trial Court. The Respondent can only raise it here with the leave of the Court. Not having obtained such leave, all submissions on the point are incompetent and are hereby discountenanced. Appellant s issue one as framed is a misrepresentation of the decision of the trial judge. I shall therefore reframe the issue to read thus: 6

10 Whether the trial Court was right to hold that Section 17, State Lands Law, Oyo State 1978 does not apply to the Revocation of the Appellant s right of occupancy under the Land Use Act 1978, as happened in the present case. Subject to the above modification, I shall determine this appeal based on the issues formulated by the Appellant. ISSUE 1 Whether the trial Court was right to hold that Section 17, State Lands Law, Oyo State 1978 does not apply to the Revocation of the Appellant s right of occupancy under the Land Use Act 1978, as happened in the present case. APPELLANT S ARGUMENTS: Learned counsel for the Appellant in his brief on issue 1 submitted that the crux of this case is whether the respondents can forfeit the lease granted to the appellant without recourse to the procedure stipulated in Section 17, State Lands Law, Cap Laws of Oyo State, which is the law that deals with lease of State land in Oyo State. Counsel set out the provisions of the law and submitted that the forfeiture procedure provided in the Section was not followed, rather the respondents inappropriately made use of Section 28 of the Land Use Act 7

11 which was erroneously approved by the learned trial Judge. He further submitted that a State land on lease cannot be revoked under the Land Use Act as it is already State land. Citing OSHO v. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PT. 184) 193, G, Counsel submitted that the order of revocation under the Land Use Act is null and void as a Governor cannot revoke the right of occupancy of State land. Counsel submitted that the learned trial Judge misconceived the real substance of the dispute between the parties and that its approach to the resolution of the issues rendered its judgment perverse. RESPONDENTS ARGUMENTS: Appellant s issue 1 is dealt with by the Respondents in their issues 2 & 3. Learned Counsel submitted that it is not in controversy that the Land Use Act is the principal Law of Land Management in Nigeria and that in the case of NKWOCHA V. GOVERNOR ANAMBRA STATE (1984) 6 S.C 404, the Supreme Court held that "the tenor of the Land Use Act as a single piece of legislation, is the nationalization of land in the country by vesting of its ownership in the state leaving the private individual with 8

12 an interest in land which is a mere right of occupancy. Counsel opined that contrary to the contention of the Appellant, the Land Use Act vested control and Management of Urban and Non-urban Land in State Governor and Local Government respectively. OBA OYEWUMI V. OBA OSUNBADE ORS (2O01) FWLR (PT. 82) 1919; hence the Statutory Right of Occupancy issued to the Appellant was pursuant to the land Use Act, the Respondents were in order in law to have acted within the purview of the principal law on land in the revocation exercise and not the State Lands Law. He opined that the Statutory Right of Occupancy was issued to the Appellant pursuant to the Land Use Act and not pursuant to the State Lands Law of Oyo State; and further that the Land Use Act is a superior law to the State Lands Law since the Land Use Act is a Federal Act. Where there is a clash between the two, the Land Use Act being a Federal Law shall prevail. Learned counsel submitted that it is elementary principle of law that where a state legislation is inconsistent with an extant Federal Law, the state law shall give way and the Federal Act shall prevail. He opined that the Oyo State Land Law cannot void revocation 9

13 done pursuant to the Land Use Act particularly for land allocated under the Land Use Act. Learned counsel submitted that the cause of action in this case accrued and ripened in 2005 after the State wrote to the Appellants finally that they were not going to review the revocation. Counsel argued that as at then, the applicable law was State Lands Law Cap. 155 of Laws of Oyo State 2000 and not State Lands Law 1978 as erroneously argued by the Appellants. He submitted that the 2000 law contains no provision for the forfeiture, or revocation of the Statutory Right of Occupancy and as such irrelevant to this Appeal. Counsel urged the Court to place reliance on Section 38 of the Land Use Act which preserved the power of the Governor of a State to revoke rights of occupancy and that it could not be whittled down by the State Land Law; which law is applicable to land leased by the State under the State Land Law. RESOLUTION OF ISSUE 1: There is clearly a misconception here as to the incidence of a holder of a right of occupancy whose right was revoked and a lessee of State land whose lease was forfeited for 10

14 non payment of rent. The difference was clearly brought out in the case of OSHO & ANOR V FOREIGN FINANCE CORPORATION & ANOR (1991) LPELR-2801(SC). In the case, the Plaintiff Foreign Finance Corporation (hereinafter referred to as FFC) was a lessee of Lagos State Development and Property Corporation (LSDPC) in respect of State land managed by LSDPC, Plot no 10 Mushin Light Industrial Estate Scheme 11 comprised in the Deed of Lease dated 26/1/76 and registered as No. 77 at page 77 Volume 1534 of the Lands Registry in the office at Lagos. LSDPC alleged that FFC fell into arrears of rent and refused to pay despite repeated demands and had thereby forfeited its lease. By a revocation order under Section 28 Land Use Act 1978 signed by the Commissioner of Economic Planning and Land Matters Lagos State the Plaintiff s (FFC) right of occupancy was revoked. The land was then allocated to the Appellants Osho and BAO Motors Ltd. Without following due process, LSDPC and the Appellants broke into the land destroying FFC s property and goods. FFC sued LSDPC and the two Appellants claiming special and general damages for trespass and the 11

15 destruction of his property and goods. At the High Court, judgment was entered in favour of the Plaintiff FFC for damages for trespass and injunction. The Appellants appeal to the Court of Appeal was dismissed on the question of liability although there was reduction of damages. Further appeal to the Supreme Court was dismissed unanimously. The Supreme Court made it clear that there is a difference between the interest of a lessee of State land and the interest of a holder of right of occupancy as the holder of a right of occupancy enjoys a larger interest than the holder of a lease. It referred to the definition of State land in Section 2 of the State Lands Law Cap 130 Vol. 7 Laws of Lagos State 1973: all public lands in Lagos State which are for the time being vested in the Military Governor on behalf of or on trust for the benefit of the Government of Lagos State and all land heretofore held or hereafter acquired by any authority of Lagos State for public purpose or otherwise for such benefit as well as land so acquired under any enactment. There is thus a difference between land owned by the government through its various agencies and statutory bodies as 12

16 opposed to land in respect of which a right of occupancy has been granted to an individual or a citizen. Land owned by government through its agencies and statutory bodies can be leased to individuals as in the case of OSHO & ANOR V FOREIGN FINANCE CORPORATION & ANOR. Such lease is quite apart and different from the grant of a right of occupancy under the Land Use Act By semantics, a person holding a lease of government land has a right of occupancy which could be revoked by the government. But the incidence of such revocation depends on the grounds for the revocation. Revocation of right of occupancy for public purpose is governed by the Land Use Act Revocation on grounds of non payment of rent or breach of any of the covenants either under a lease or certificate of occupancy is governed by the State Lands Law. As long as the occupant is in possession and has put up structures on the land, the government cannot take over possession vi et armis. OJUKWU V MILITARY GOVERNOR OF LAGOS STATE (1985) 2 NWLR (PT.10) 806. It must follow due process. That is the crux of the judgment of the Supreme Court in OSHO & ANOR V FOREIGN FINANCE CORPORATION & ANOR. 13

17 The position is quite different in the instant case where the Appellant was granted a right and Certificate of occupancy by the Respondents. His right of occupancy was revoked for public purpose barely five months after its grant and no structures had been put on the land. The revocation must be considered under the Land Use Act. Proper revocation under the Land Use Act for public purpose does not require any judicial process and the State Lands Law is inapplicable. The learned trial judge was consequently right in his observation at page 195 of the Record thus: The claimant relied heavily on S. 17 of the State Lands Law, Cap 119, Laws of Oyo State This law is not applicable to this case. The Claimant s Certificate of Statutory Right of Occupancy Exhibit C was issued to him under the Land Use Act and the revocation order Exhibit D was effected under S. 28 of the Land Use Act. The submission of counsel made with reference to Law i.e. S. 17 of the States Land Law of 1978 is therefore misplaced. 14

18 I agree with the learned trial judge. The State Lands Law has no application to the revocation, notwithstanding the wordings of the letter of revocation FORFEITED PROPERTY: LEASE OF LAND etc... That must be what created the confusion in the mind of the Appellant that the rules relating to forfeiture under the State Lands Law ought to apply. ISSUE 2: Whether the trial Court was right in law in holding that an instrument of revocation under the Land Use Act is not invalid on the ground that it did not expressly state the specific purpose for which an interest in the land was being revoked if such specific public purpose can be inferred from subsequent act of the grantee or from other subsequent documents after the revocation APPELLANT S ARGUMENTS: Learned counsel on his issue 2 submitted that the revocation of the appellant's lease was invalid on the ground that the instrument of revocation, Exhibit D did not state the specific public purpose for which the land in dispute was revoked as mandatorily required by law. He cited the cases of C.S.S. BOOKSHOPS LTD. V. THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 6 SCM 70; OBIKOYA & SONS LTD. V. GOVERNOR OF LAGOS STATE (1987) 1 NWLR

19 15

20 (PT. 50) 85; EREKU V. MILITARY GOVERNOR, MID- WESTERN STATE OF NIGERIA (1974) ALL NLR OSHO V. FOREIGN FINANCE CORPORATION (SUPRA) D-E; PROVOST, LAGOS STATE COLLEGE OF EDUCATION V. EDUN (2004) 3 SCM 191@212. Learned counsel submitted that the learned trial Judge after setting out the law correctly surprisingly held that although the government did not spell out the nature of the overriding public interest in the revocation letter that in the reply to the letter of appeal from the claimant dated 17/1/2000, it is clear that the claimant was fully aware of the nature of the overriding public interest for which the revocation was made. Counsel submitted that the learned trial judge erred in coming to this conclusion as the consequence of not stating the specific public purpose in the notice of revocation is that the revocation is null and void. Counsel further submitted that the holding of the learned trial judge is not borne out of the pleadings and evidence of the respondents at the trial of this case, as the respondents neither pleaded nor adduced any evidence that the appellant knew or was fully aware of the nature of overriding public interest during the trial of this case. 16

21 Counsel opined that it is not right for a trial judge to evolve a case for the parties by deciding on issues not raised by them as it is settled law that a Court of law cannot speculate or conjecture in the absence of evidence. Counsel submitted finally on this issue that the revocation of the appellant's interest in the State land leased to him by the respondents was invalid, null and void on the ground that the instrument of revocation, Exhibit D did not state the specific public purpose for which the land in dispute was acquired. RESPONDENTS ARGUMENTS: Learned counsel for the Respondents in his brief submitted that the revocation in issue in this Appeal complied with all the settled requirements of the law and that the Appellant failed to establish the breach of any extant Law or Act of the National Assembly by the Respondents save for the State Land Law which is materially inapplicable in the instant case. Counsel submitted that the Appellant at the hearing called only one witness who did not allege non service of notice neither was his testimonies to the effect that all the statutory 17

22 notices were not served on the Claimant. Counsel submitted that the position is that where the land in dispute is revoked for existing public use the Land Use Act does not compel the Acquiring Authority to state specific purpose in the notice again. He opined that the Appellant did not aver that the land was put into other use not consistent with the context of public use. Counsel opined that the land in issue had existing use before it was mistakenly allocated to the Appellant and which use it reverted to after the revocation. Counsel submitted citing NIGERIAN ENGINEERING WORKS LTD V. DENAP LTD & ANOR (20O2) FWLR (PT. 89) that once revocation is done in accordance with Section 28 of the Land Use Act and due notice is given then it becomes lawful and effective and as such only compensation is available as a remedy. Counsel argued that contrary to the arguments of the Appellant in their brief it is only in fresh acquisition that specific notice is required not in revocation for existing public interest. He opined that revocation on ground of exclusive government use is within the ambit of section 28 of the land Use Act. 18

23 Learned counsel submitted that the facts and precepts in the cases cited by the Appellant are completely inapposite to the facts in the present case. He argued that the novelty in the instant case is that the use for which the land in dispute were put to are essentially the same and that the revocation is not acquisition. Counsel submitted that the undertaking given by the Appellant at Page 11 of the record is prime facie evidence of the knowledge of the Appellant as to the purpose of the revocation. In its response at page 12 of the Record, the Government alluded to government policy and the significance of the vicinity of the location of the revoked plot. Counsel submitted that the Courts have the inherent power to make use of all the evidence and materials placed before them and urged us to discountenance the submission of the Appellant that the trial Court made a case different from the one placed before it. Counsel submitted relying on CHIEF R.O NKOWOCHA V. GOVERNOR OF ANAMBRA STATE & ORS (2001) FWLR (PT 48) 1411 that the power of revocation under Section 28 of the Land Use Act is circumscribed for overriding public interest. 19

24 He opined that the land in dispute was revoked for exclusive use of the Government of Oyo State as part of the Government House, being the exact use for which the land had for all time been set apart before it was ignorantly allocated to the Appellant. Counsel submitted that DWI testified at the trial Court that the 4 plots revoked were part of the Government house and that same had been landscaped into a beautiful Garden within the area of Government House. He urged the Court to deem the above to be within the purview of the exclusive government use as stipulated in Section 51 of the Land Use Act and to hold that the Appellant did not discharge the onus placed on him by the law and as such was bound to fail in his claims. RESOLUTION OF ISSUE 2: A proper resolution of issue 2 calls for the setting out of the relevant provision of the Land Use Act. Section 28(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 20

25 of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made there under; (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 (3) sets out what Overriding public interest is in the case of a customary right of occupancy. (4) The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes. (5) (6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized 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 21

26 given under Subsection (6) of this section or on such later date as may be stated in the notice It is clear then and there is a long line of authorities that revocation of a right of occupancy under Section 28 of the Land Use Act must be for overriding public interest which has been specifically defined in the section. The applicable subsection here is 28(6) 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. See the following cases cited by learned counsel for the appellant. EREKU V. MILITARY GOVERNOR, MID-WESTERN STATE OF NIGERIA (1974) ALL NLR ;OSHO V. FOREIGN FINANCE CORPORATION(SUPRA) D-E; PROVOST, LAGOS STATE COLLEGE OF EDUCATION V. EDUN (2004) 3 SCM 191@212. See also DANTSOHO V MOHAMMED (2003) LPELR-926 (SC) where MOHAMMED JSC observed: I agree that the power of the Governor to revoke a right of occupancy must be for overriding public interest and for the requirement of the Federal Government for public purposes. 22

27 Any revocation which does not comply with the provisions of S. 28 of the Land Use Act is invalid. While it is true that the authorities indicate that the specific public purpose for which the land was revoked should be set out in the Notice of Revocation, it should be noted that most of the cases in which such was stated deal with instances where the revocation was invalid such as where the land was revoked and given to another individual which is clearly not a public purpose. Where there is evidence that the land was indeed revoked for overriding public purpose and so applied, the fact that the specific public purpose was not specified in the Notice of Revocation will not invalidate the revocation as that requirement is not specified in the Act. In the case of C.S.S. BOOKSHOPS LTD. V. THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 6 SCM 70 or (2006) LPELR-824 (SC) MOHAMMED JSC observed: It is not at all in doubt that the provisions of Section 28 of the Act contains comprehensive provisions to guide the Governor of a State in the exercise of his vast powers of control of land 23

28 within the territorial areas of the State particularly the power of revocation of a right of occupancy. One of the preconditions for the exercise of this power of revocation is that it must be shown clearly to be for overriding public interest. In order not to leave the Governor in any doubt as to the conditions for the exercise of his power, the law went further to provide adequate guidance by defining in clear terms what overriding public interest means in the case of a statutory right of occupancy under the Act in Subsection (2) of Section 28. What this means of course is obvious. Any revocation of a right of occupancy by the Governor in exercise of powers under the Act must be within the confine of the provisions of Section 28 of the Act. Consequently, any exercise of this power of revocation for purposes outside those outlined or enumerated by Section 28 of the Act or not carried out in compliance with provisions of the section, can be regarded as being against the policy and intention of the Land Use Act resulting in the exercise of the power being declared invalid null and void by a competent Court in exercise of its jurisdiction on a complaint by an aggrieved party. 24

29 The complaint of the Appellant must consequently be that the Respondents in the revocation of his statutory right of occupancy did not comply with Section 28(6) of the Land Use Act. In other words, that the revocation was not for overriding public interest. The burden on the appellant is not merely to show that the type of public interest was not specified in the Notice of Revocation. The attitude of the Courts have been to construe the relevant section of the Act fortissimo contra preferentes strictly against the acquiring authority and sympathetically in favour of the complainant or owner whenever there is indication that the acquisition was not for overriding public purpose; hence their preparedness to read into the section what is strictly not a requirement of the section. The Courts will surely not follow that route when there is abundant evidence that the revocation was for overriding public purpose. Learned counsel for the Respondent is right in his submission that the revocation in this appeal complied with all the law and that the Appellant failed to establish the breach of any relevant extant Law. 25

30 The sole witness called by the Appellant did not allege non service of any of the statutory notices. He did not aver that the land was put into other use not consistent with overriding public purpose. On the contrary, as argued by the Respondents, the undertaking given by the Appellant in his letter of appeal at Page 11 of the record to construct the fence of his building to back the Government House Road is prime facie evidence of knowledge of the Appellant that the revocation was indeed for overriding public purpose security of the Government house grounds. DWI had testified that the 4 plots revoked along with the Appellant s plot were originally part of the Government house grounds and that same had been landscaped into a beautiful Garden within the area of Government House. The Appellant failed to discharge the burden on him to prove that the revocation was not for overriding public purpose. ISSUE 3: Whether a court can validly make up a case which was not put up by a party before it as was done by the trial court for the respondents in this case. (Ground 3). 26

31 APPELLANT S ARGUMENTS: On his issue 3, learned counsel submitted that the judgment of the trial Court was based on issues the Court raised suo motu. For example that "there is no evidence of bad faith on the part of the government; no evidence that the land was given to another individual, or used for purposes other than public purpose; that it was revoked for overriding public interest because of its close proximity to the Government House. Counsel submitted citing authorities that none of those issues was raised in the pleadings or evidence led by the parties and that courts must confine their decisions to matters that are fought by the parties and must not open a new and unexpected battlefield in their judgments. Learned counsel urged the Court to allow the appeal, to set aside the judgment of the lower Court and to grant all the claims of the Appellant. RESPONDENTS ARGUMENTS: Learned counsel submitted that while reviewing the evidence led by the parties and the Record of appeal as shown in the various correspondences between the parties, the learned trial Judge is at liberty to come to such conclusion as is necessitated by the evidence. He urged the Court to discountenance the submission of the Appellants that the trial Court made a case different from the one placed before it.

32 27

33 RESOLUTION OF ISSUE 3: Learned counsel for the Respondents is right that a Court has the inherent power to make use of all the evidence and materials placed before it to do justice in the case before it. The learned trial judge in his judgment at page 194 observed: There is no evidence of bad faith on the part of the government. There is also no evidence that the land was given to another Individual, In short, there is no evidence that the land has been used for purposes other than public purpose. The instant case is distinguished from Obikoya & Sons Ltd v. Lagos State (1987) 1 NWLR (Part 50) 385 at 403 which was relied upon by the learned claimant s counsel. The Claimant in that case discovered that the land was taken from him and given to another individual. That could not have been for overriding public interest. But in the instant case, the land in dispute was not given to another individual. It was revoked for overriding public interest because of its close proximity to the Government House. 28

34 The conclusions above are based on evidence before the Court. Before the Appellant finally approached the Court, there had been series of correspondences between the Appellant and the Respondents. The government had told the Appellant the purpose of the revocation which had to do with the security around Government House. The appellant then wrote to the governor appealing to him to cancel the revocation and undertaking to construct the fence of his building to back the Government house. This was rejected by the Government. These letters were pleaded by the Appellant at page 13 of the Statement of claim and were tendered in evidence as Exhibits. Counsel s contention that these issues were not before the Court is consequently not correct. The evidence was put before the Court that the land was revoked for overriding public interest because of its close proximity to the Government House. The Appellant s claim that the judgment of the trial Court was based on issues the Court raised suo motu is not correct. In the final result, I hold that the appeal is lacking in merit. It is hereby dismissed. The judgment of the lower Court is affirmed. 29

35 HARUNA SIMON TSAMMANI, J.C.A.: I read in advance a draft of the judgment delivered by my learned brother, C. E. lyizoba, JCA. The Appellant was the holder of a Statutory Right of Occupancy of that land situate, lying and being at Plot 1, along Government House, Ikolaba Grammar School, Agodi G.R.A, Ibadan. However, the certificate or right granted him over the land was revoked on the 13/9/1999 pursuant to Section 28 of the Land Use Act vide Exhibit D. Exhibit D stated that the grant was revoked for overriding public interest. In such a situation, the burden was on the Appellant to prove that the land was revoked for reasons other than overriding public interest. This is because the law casts the burden on he who desires the Court to give judgment in his favour. Accordingly, the Appellant had the onus to show that the revocation of the land granted him was not done in accordance with the relevant statutory provisions. For the above reason and especially the detailed reasons adumbrated in the lead judgment, I have no hesitation in agreeing with my learned brother that this appeal lacks merit. It is accordingly dismissed. 30