Alhaji Wahabi Layiwola Olatunji V. The Military Governor of Oyo State & Ors (1994)

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SALAMI, J.C.A. 

The government of Oyo State pursuant to section 28 of the Land Use Act Cap. 202 of the Laws of the Federation of Nigeria, 1990 compulsorily acquired a parcel of land at Orita Ikereku, challenge for public purpose absolutely simpliciter. The acquisition notice was published in Oyo State of Nigeria Gazette No.10 in Vol. 7 of 11th March, 1982, Exhibit 1, as Oyo State Notice No. 53.

Prior to the compulsory acquisition, one Alhaji Wahabi Layiwola (deceased) (substituted with Rasaki Olatunji by order of this court dated 31st day of January, 1989) had in 1976 purchased the parcel of land at Orita Ikereku, challenge, Lagos Road from Awojobi Kure family of Ibadan the original owners. The land was a subject of litigation between Saidu Gbadamosi and Salawu Adekunle Kuku in Suit No. 1/134/73. In a reserved and considered judgment delivered on 29th January, 1979, the plaintiff’s claim was non-suited. The plaintiff as representative of Kure family was dissatisfied with the order non-suiting his action and appealed to this court in Appeal No. FCA/146/82. In a judgment delivered on 6th day of May, 1985 the order non-suiting the plaintiff’s suit was set aside and was substituted thereafter with an order of declaration of title in favour of the family as well as an order for an injunction.

The sum total of the background story I have hitherto narrated is either acquisition was carried out during the pendency of litigation: The appellant in the present appeal acquired the parcel of land when suit No. 1/134/73 was still pending in the High Court of Oyo State of Nigeria. The compulsory acquisition by the Government also took place during the pendency of Appeal No. FCA/146/82.

It is common ground that the acquisition by government was carried out without notice of the same being served on the appellant. It is equally not in dispute that the parcel of land thus acquired in 1981 ostensibly for public purpose was turned over to fourth defendant herein, Tawa investments Nigeria Limited, a private limited liability company in 1987 because the government no longer required the said parcel of land for public purpose.

On commencement of Land Use Act 1978, the plaintiff applied for a grant of statutory right of occupancy and had to make inexorable enquiries about his application which had apparently stalled somewhere in the Governor’s Office where he eventually discovered to his chagrin and dismay that a certificate of occupancy had been issued to fourth defendant in respect of the parcel of land he had hitherto exercised various acts of ownership. He was naturally disturbed or discomfited and dispatched a protest letter to the Governor who neither acknowledged nor replied.

The plaintiff consequently caused a writ of summons to issue against the four defendants claiming the following reliefs –
“(1) Declaration that the Compulsory Acquisition of the plaintiff’s UNDEVELOPED LAND at Orita-Challenge, Lagos Bye Pass, Ibadan effected by the Oyo State Government Notice No. 53 dated 25th 1anuary, 1981 is unconstitutional, null, void and of no effect – the acquisition having been done in bad faith/mala fide and having not been done in compliance with the Provisions of the Public Lands Acquisition Act, Laws of Oyo State 1978, and the same having not been acquired solely for PUBLIC PURPOSES.
(2) Declaration that the aforesaid Compulsory Acquisition offends against Section 40(1) of the Constitution of the Federal Republic of Nigeria 1979 (as amended) and to that extent null, void and of no effect whatsoever.
(3) Declaration that the grant of Certificate of Occupancy dated 25th day of February 1987 in respect of the Acquired Land to a PRIVATE INTEREST/PRIVATE COMPANY, TAWA INVESTMENTS NIGERIA LIMITED INCORPORATED, the 4th defendant in this case, is null, void and of no effect whatsoever: The grant not being for public purposes.
(4) Declaration that the plaintiff is the only one entitled to the grant of Certificate of Occupancy in respect of the Land having regard to his ownership and Possession of the Land and the Court of Appeal judgment in favour of the plaintiff’s vendors.
(5) Perpetual injunction restraining the defendants, their Agents, Servants and/or Privies from further dealing on the land Pursuant to any Act or Acts arising from or pertaining to the Compulsory Acquisition, or Pursuant to the Grant of the aforesaid Certificate of Occupancy.”
(Italics mine)

The parties then filed and exchanged pleadings. The issues joined on the pleadings were duly tried and in a reserved judgment the learned trial Judge, Adeyemi, J., rejected all the plaintiff’s reliefs and proceeded to dismiss his entire claims.

The plaintiff (hereinafter referred to as appellant) was thereby aggrieved and has appealed to this court on eight grounds of appeal. The parties filed and exchanged briefs of argument incompliance with the practice and procedure of this court. Briefs of argument were settled at amended appellant’s brief, first, second and third respondents’ joint amended respondent’s brief and fourth respondent’s amended brief of argument.

Pausing at this juncture, I am to avert to the existence of a respondent’s notice put in by fourth respondent. It contains three grounds which read as follows:
“1.01 The appellant’s claim should have been dismissed on the ground that the sale under the Deed of Conveyance (Exhibit 5) relied on by him was caught by the doctrine of lis pendens.
1.02 The lower court should have declined jurisdiction and struck out the case on the ground that the plaintiff’s case raises question concerning or pertaining to the right of the 1st respondent to grant a statutory right of occupancy to the 4th respondent.
1.03 The appellant’s action having been based on the provisions of the Public Lands Acquisition Law of Oyo State should have been dismissed for having been barred by a provision of the same Law.”
At the hearing of the appeal, learned counsel for appellant adopted and placed reliance on the amended appellant’s brief. The learned counsel for first, second and third defendants (hereinafter respectively referred to as first, second and third respondents) adopted and relied on their joint brief. The fourth respondent’s brief was duly adopted and relied upon.

Neither party is contesting the competence of the Governor to acquire the property in dispute for public purpose. Nor any of them contesting the acquisition of the same. What is in dispute therefore is whether subsequent grant of the land acquired for public purpose to Tawa investments Nigeria Ltd. constitutes public purpose under the Land Use Act. The issue calling for determination therefore falls within a very narrow compass which is encompassed by the following issues:-
‘(i) Whether the compulsory acquisition is not a nullity taking into account that the appellant who was the owner or a person in effective possession was not served with a notice of revocation.
(ii) Whether the grant to the fourth respondent served the intent of the notice which was for public purpose absolutely.

In arguing the first issue as formulated by me which is related to ground 6 the learned counsel for appellant strenuously contended that the strict requirement of notice stipulated in sections 28(6) and 44 of the Land Use Act and which are similar to those contained in the Oyo State Public Acquisition Law have not been complied with. He referred to the case of Peter Dzungwe v. Gbishe (1985) 2 NWLR (Pt.8) 528. The learned counsel for first, second and third respondents contended that the land in dispute was acquired for public purpose in 1981 under section 28 of the Land Use Act, 1978. He further contended that the acquisition is contained in Oyo State Notice No. 53 in the Oyo State of Nigeria Gazette No. 10, Vol. 7 of 11/3/82. Counsel then submitted that since the land acquired was undeveloped it was not possible to effect personal service of the notice of acquisition on the appellant.

The learned counsel for fourth respondent on behalf of that respondent argued that the issue of non-compliance with the requirement of notice was raised for the first time in this court. He contended that this question was not raised in the appellant’s pleading in the court below and there was therefore no issue joined at the trial. He pointed out that the appellant while giving evidence in 1988 admitted he had knowledge of the acquisition about four years ago. He did not tell the court how he came about his knowledge of the acquisition. He then contended that he could not have derived his knowledge from outside the notice published in the Gazette Notice which he himself tendered as exhibit 1(a). He then urged upon us that his complaint of non-service of notice is an after-thought and it should be rejected.

I have carefully pondered on the submissions of learned counsel. I take those of the learned counsel for fourth respondent which I consider adroit and crucial first. The appellant pleaded in paragraph 11 of his statement of claim as follows-
The plaintiff by humble PETITION dated 1st November 1987 addressed to the Permanent Secretary, Oyo State ministry of Lands, Ibadan for onward transmission and Information to the 1st, 2nd and 3rd defendants drew attention to the ANOMALIES in the grant of the Certificate of Occupancy in respect of the Land to the 4th defendant.”
In proof of the averments contained in paragraph 11 set out above the appellant tendered a letter which he addressed to the Permanent Secretary, Ministry of Lands, Housing and Survey, Ibadan which petition was accepted in evidence and was duly marked as exhibit 6. It reads thus-
“SW4/768, Olorunsogo Street,
Akuro, Oke-Ado,
Ibadan.
18th November, 1987
The Permanent Secretary,
Ministry of Lands, Housing and Survey,
Ibadan.