Alhaji Usman Babatunde Lawal V. Hon. Commissioner For Lands Housing & Survey Oyo State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

Should the High Court in the instant matter on appeal have refused to grant the order of mandamus sought? This is the central question and issue in this appeal. As required by the High Court (Civil Procedure) Rules of Oyo State,1988, the appellant as the applicant filed a motion ex parte in the High Court of Oyo State in December 2007.

By it, he prayed the court for leave to apply for an order compelling the respondent i.e. the Honourable Commissioner for Lands, Housing and Survey Oyo State, to forthwith issue him a Certificate of Statutory Right of Occupancy in respect of Plot 4, Block III at the Oyo State New Government Reservation Area, Samoda, Bodija, Ibadan since he had paid all the prescribed fees following the allocation of the plot to him.

The applicant now appellant sometime in 2005 applied for a plot of land at the Oyo State New Government Reservation Area, Samoda, Bodija in Ibadan. Pursuant to that application, he was allocated Plot 4, Block III in the said Government Reservation Area by a letter with Reference No.LLA 6831D dated 16th May, 2005. He then proceeded to pay N500,000 on 23/5/2006; N1,000,000 on 24/5/2006 and N1, 500,000 on 15/5/2007. Those amounts having been paid, he waited for a letter from the respondent informing him of amounts that were outstanding in respect of Development Levy and other incidental fees.

When waiting for the letter did not pay off, he went to the Oyo State Ministry of Lands, Housing and Survey to make enquiries. There he was informed that he had an outstanding balance of N2, 475,610 to be paid. Armed with this information, he paid the following sums of money: N1, 500,000 on 6/9/2007; N595, 000; N216,510; N154,100 and N10,000 on 24/9/2007. At the time he made this set of payments through the bank, there was an ongoing general strike by workers in the employ of the government of Oyo State. As a result of the strike, he was not able to obtain official receipts for the payments.

When the strike was called off, the appellant went to the said Ministry of Lands, Housing and Survey with a view to obtaining Official receipts for the payments aforesaid. In the course of that mission, he got to know that the property file in respect of his application had been moved to the office of the respondent. From his limited knowledge of the workings of the Ministry of Lands, Housing and Survey he got worried. Files, from his smattering knowledge of that ministry were not normally moved to the office of the respondent unless the processes for the issuance of a Certificate of Occupancy had been completed.

His expectation was that his file would still be at the stage when it was being processed by subordinate officers. His anxiety got the better of him and he instructed his Solicitors to write to the respondent demanding that the property file be processed for necessary issuance of a Certificate of Occupancy to him. His Solicitors wrote as instructed. However, no reply was received. It was this situation that compelled the appellant to approach the lower court by a motion ex parte for leave to apply for an order of mandamus.

The court granted the leave sought on 11/12/2007 and the appellant i.e. the applicant in the lower court, proceeded to file a motion on notice for an order of mandamus on 13/12/2007. The court granted the order of mandamus on 28/1/2008. The respondent however filed a motion on notice on 15/2/2008 which sought an order of stay of execution of the ruling granting the order of mandamus. On further consideration, the respondent had a change of mind and withdrew the motion for stay of execution.

The same was struck out on 18/3/2008. Before then, on 21/2/2008, the respondent filed a motion on notice to set aside the ruling of 28/1/2008 on the ground that he was not aware of the hearing date and as such was denied fair hearing. After a detailed consideration of the said motion, the learned trial Judge on 2/5/2008 set aside his earlier ruling. He then considered the motion on notice for an order of mandamus on the merits. On 30/6/2008, he delivered his ruling. He ruled that the application for the order of mandamus lacked merit and therefore dismissed it.

This appeal is the result of the appellant’s dissatisfaction with that ruling. He filed his Notice of Appeal on 21/8/2008. There, he gave three grounds of appeal and particulars of each ground.

The appellant filed his brief of argument on 2/3/2009. It was prepared by his counsel Chief Iyiola Oladokun. By an order of this court, the brief of argument was deemed as properly filed and served on 3/3/2009. On 17/4/2013 Chief Iyiola Oladokun leading Oladapo Ajila adopted the appellant’s brief. He also adopted the appellant’s reply brief. He urged the court to allow the appeal and set aside the judgment of the lower court. On that same day i.e. 17/4/2013, Adegboyega Salawu, a Principal State Counsel in the Oyo State Ministry of Justice who appeared with Kuforiji-Kehinde (Miss) a State Counsel of the same ministry, adopted the respondent’s brief filed on 29/9/2009. The brief was deemed as properly filed and served on 8/10/2009. He urged the court to dismiss the appeal and affirm the judgment of the lower court.

In the appellant’s brief of argument three issues were identified for determination in this appeal. The issues are-

1. Whether the learned trial Judge was right when he declined to compel the respondent to issue the Certificate of Occupancy in favour of the appellant even after he had found that the respondent did not communicate the revocation of the allocation made to the appellant and when the respondent was still holding on to the appellant’s money. (This issue was tied to ground 1 of the grounds of appeal).
2. Whether the learned trial Judge was right when he held that the appellant was not entitled to ask the court to compel the respondent to issue the Certificate of Occupancy after his lordship had earlier on found that the appellant had satisfied all the conditions required of him by law to succeed in his application. (This issue was tied to ground 3 of the grounds of appeal).
3. Whether Exhibit C1 is admissible in law and ought to be acted upon by the learned trial Judge in denying the appellant his right to the order sought from the lower court. (This issue was tied to ground 2 of the grounds of appeal).

Before I go on to examine the arguments of the appellant’s counsel on the issues raised, I observe that the issue argued as issue 1 is in fact listed as issue 3 for determination. Perhaps the proverbial printer’s devil was responsible for that error.

Issue 3 argued as issue 1 as will be recalled, is whether Exhibit C1 is admissible in law and whether the exhibit should have been relied upon by the trial Judge.