Madam Elizabeth Yetunde Anthony V.the Governor of Lagos State & Anor (2002)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A. 

The applicant (appellant) in the court below (High Court of Lagos State, Ikeja Division, Coram Holloway, J.), applied for an order of mandamus to compel the 1st respondent to issue by way of grant, a Certificate of Occupancy in respect of plots 3 and 4 in Shomolu Extension Layout Plan No. SHO 11 and for such, further order or orders as the court may deem fit to make in the circumstances. In support of the application, the applicant deposed to an affidavit of twenty one paragraphs with six exhibits marked ‘A’ ‘B’ ‘C’ ‘D’ ‘E’ and ‘F’.

The respondents in the said application, also respondents/cross appellants in this appeal, opposed the application and filed a counter affidavit of twenty three paragraphs. The applicant did not file a reply to the counter-affidavit. After hearing the application, the court below inter alia made the following pronouncement.

“To be able to exercise the discretion of this court judicially, this type of fine point of law, which infact affects the root of the applicant’s case would need to be satisfied. Unfortunately, it has not. It is only because of this that the court would not be able to make the order of mandamus compelling the 1st respondent to issue by way of grant, a Certificate of Occupancy in respect of all the piece or parcel of land, known as Plots 3 and 4 in Shomolu Extension Layout Plan No. SHO 11.

However, this court will order that the respondent proceeds immediately to offer the applicant piece of land of equal value in another prime area without demanding any further payment from the applicant as soon as the applicant provide proof to them that the cheque and other demanded requirements had been satisfied. There will be no order as to costs.”

Dissatisfied with the ruling, the applicant/appellant has appealed to this court and has filed a notice of appeal dated 20/12/2000 and therein has raised four grounds of appeal. In the brief of argument filed in this matter the applicant/ appellant has identified three issues for determination and they are reproduced here as follows:-

“1. Whether the learned trial Judge took relevant matters into consideration in refusing to grant the order mandamus sought.

2. Whether the learned trial Judge was not wrong in refusing the orders of mandamus sought.
3. Whether the learned trial Judge was right when he directed the respondent to offer the applicant a piece of land of equal value in another prime area.”

The respondents being also dissatisfied with a part of the ruling have cross appealed against the ruling and have raised their complaints under four grounds of appeal from which four issues for determination have been raised in the respondents/cross appellants’ brief of argument and they are as follows:-

“1. Whether the learned trial Judge was right to have refused to grant the order of mandamus sought.

2. Whether the learned trial Judge ought to have made specific order to dismiss the application for mandamus in its entirety.
3. Whether the learned trial Judge was right to have ordered the respondents/cross appellant to proceed immediately to offer the applicant piece of land of equal value in another prime area without demanding any further payment.
4. Whether the letter of the applicant’s solicitor dated 15/9/99 and marked as Exhibit E qualify as a direct demand on the respondent to grant a Certificate of Occupancy of the land.”

The appellant has submitted that by Exhibit C i.e. a letter dated 10/8/99: Ref. No. KL126/S/129/217 written by the Executive Secretary Land Use and Allocation Committee, plots 3 and 4 in Shomolu Extension Layout were allocated to the appellant as compensation for the acquisition of her land in 1958. And that the cheque for N65,000.00- Exhibit D sent to Executive Secretary Land Use and Allocation Committee was made for the payment of the plots in compliance with the requirements stipulated in Exhibit C. The appellant has queried the rejection of Exhibit D without stating the mode of rejection; a decision not communicated to the appellant as Exhibit E, a letter dated 15/11/99 written by the appellant’s solicitor oblivious of the rejection has demanded the issuance of Certificate of Occupancy. And that to require in the circumstances a receipt as evidence of the payment of N65,000.00 from the appellant looked simply like a ploy to derail the grant of Certificate of Occupancy.

On issue three, the appellant conceded that she never asked for the relief for another piece of land and as borne out by the record and that the order to that effect has also rendered contradictory the basis for the refusal of the order of mandamus sought.

The appellant has urged that the appeal be allowed and the order of mandamus be granted as prayed.

The respondents/cross appellants on the other hand, submit that the appellant has no legal right to the grant of Certificate of Occupancy for the said plots 3 and 4. Although it is conceded that she (appellant) has legal right for compensation for the compulsory acquisition of her land by Government. See R. v. Guardian of the Lewisham Union (1897) 1 QB 498 at 501. And this could be in monetary form or allocation of alternative land. The respondents maintain that the appellant has misapprehended exhibit C as having conferred any legal right of the said plots otherwise enforceable by mandamus. Exhibit C, the respondents contend was issued in error and so has been rightly cancelled (the averment to that effect in the counter-affidavit was not challenged). They urge the court to discountenance the appellant’s story surrounding the cheque – Exhibit D for N65,000.00 and its rejection but to act on the respondents’ story as deposed to unchallenged nor disputed or denied in paragraphs 2-18 of their counter-affidavit. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 and Ajomale v. Yaduat No.2 (1991) 5 NWLR (Pt. 191) 266 at 282-283. It is also submitted that a third party’s interest has intervened that is, by the grant to Penbridge Co. Ltd. since 1982.

On the foregoing facts, the respondents contend that the application ought to have been dismissed and not refused simpliciter. Debunking the unsolicited order to grant the appellant another land in a prime area of Lagos State, the respondents add that it is a relief not sought by the parties and ought to be vacated. See Yisi (Nig.) Ltd. v. Trade Bank Plc (1999) 1 NWLR (Pt. 588) 446 and Col. M. B. Kaliel v. Alhaji Aliero (1999) 4 NWLR (Pt. 597) 139.