Col. Charlton Ekundayo & Anor V. Federal Capital Development Authority & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 24th of May, 2011, by Honourable Justice Maryanne E. Anenih.

The plaintiffs, now appellants, before the lower court claimed the following reliefs, at page 195 of the record of proceedings:

1. A declaration that the 1st plaintiff’s title to the plot No.1220 Cadastral Zone A4, Asokoro in issue is still intact, as purported revocation was not for any reason known to law, equity and good conscience.
2. A declaration that the purported revocation of the plaintiff’s plot by the defendants was not done in accordance to and/or in compliance with the provisions of the Land Use Act and hence illegal, void and of no legal effect.
3. Perpetual order of court restraining the defendants, either by themselves or their agents by whatever name called or description, anybody acting through and by them, from ever again disturbing the plaintiff’s quiet enjoyment of Plot No.1220, Cadastral Zone A4, Asokoro District.
4. Cost of this action.

The Lower Court dismissed the entire reliefs sought by the plaintiffs, now appellants; dissatisfied they now lodged this appeal by a notice dated and filed on the 7th of July, 2011, page 477 of the record.

Briefly stated the facts that necessitated the action at the Lower Court, and subsequently this appeal are that the appellants were allocated the land in dispute, i.e. Plot 1220 Cadastral Zone A4, Asokoro Abuja in 1992 by the respondents, with a statutory right of occupancy to boot, and later revoked the said right of occupancy, on the ground that the land was not developed in accordance with the terms and conditions of the Certificate of Occupancy, which required that the land be developed “…..within two years from the date of the commencement…” of the right of occupancy.

The notice of appeal contained eight grounds of appeal from which the following issues were formulated for determination by the appellants:

1. Whether the learned trial judge was right in holding that the equitable doctrine of waiver did not apply to the revocation of the appellants’ plot, and that if it did, waiver does not operate in perpetuity, ground one.
2. Whether the learned trial judge was right in holding that the reason for the revocation of the appellants’ right of occupancy not being for overriding public interest, is valid, constitutional and in accordance with Section 28 of the Land Use Act, grounds seven and eight.
3. Whether the learned trial judge was right in making far reaching findings on the issues of non development and breach of development approval which were issues not supported by the pleadings of the parties and thereby making a case for the respondents and against the appellants, ground two.
4. Whether the learned trial judge was right in upholding the notice of revocation in spite of patent non compliance with the provisions of Section 44 of the Land Use Act in the mode of service of same grounds 3, 4, 5 and 6.

On issue one Olasoji O. Orowolafe Esq. of counsel to the appellant submitted while referring to NWADIKE V AWKA SOUTH LOCAL GOVT. (2008) 16 NWLR part 1112 AT 220 AND NIGERIAN BANK FOR COMMERCE AND INDUSTRY V INTEGRATED GAS LTD (2005) 4 NWLR part 916 at 643 that where there is waiver there is estoppel; and that the 1st and 2nd respondents actually waived the provisions of clause 2 of the Right of occupancy, i.e. Exhibit E, and did so validly.

This is so learned counsel argued because Exhibit E was issued on the 2nd of September, 1992, from which date the appellants were to complete development on the property, of at least N1 Million within two years; and the two years lapsed on the 1st day of September, 1994.

Learned counsel further submitted that the respondents effectively waived the requirement for development within two years contained in clause 2 of Exhibit E, when they granted the appellants approval for development in 2002, the basis upon which the appellants commenced development.

That also the lower court was wrong to have held that the power to revoke a Right of occupancy cannot be subject of a waiver or that it cannot be so in perpetuity, as that contention amounted to equating a legal right to a legal duty; he referred this court to EDEWOR V UWEGBA (1987) 1 NWLR part 50 at 313.

That if Section 28 (5) (b) were mandatory the word “shall” would have been used instead of “May”; and a sanction for failure to carry out the duty would also have followed. But the Section is permissive, allowing the 1st defendant to decide on the breach of a term in the Certificate of Occupancy; learned counsel referred this court to AROIRI V ELEMO (1983) 1 SCNLR 1 at 13.

Learned counsel further submitted that the right of the governor to revoke a right of occupancy for overriding public interest does not include a breach of a term in the Certificate of Occupancy or a term of grant, and so he argued the revocation was wrong on that account; this is so he contended because Section 28(2) of the Land Use Act defined overriding public interest, and it does not include a breach of a term in the Certificate of Occupancy; he contended the provision of clause 2 of Exhibit E had been waived by the 1st respondent, and this court as a result should resolve this issue in favour of the appellant.

On issue two learned counsel submitted that the only valid and constitutionally acceptable reason for revocation of statutory right of occupancy is overriding public interest; to buttress the requirement of fair hearing to the holder when a certificate is revoked on account of breach he referred this court to ONONUJU v AG ANAMBRA (2009)10 NWLR part 1148 at 208, OSHO V FOREIGN FINANGE CORP (1991) 4 NWLR part 184 at 195, OGUNLEYE V ONI (1990) 2 NWLR part 135 at 745 and OTO V. ADOJO (2003) 7 NWLR part 820 at 636; and contended that the appellant was not given any fair hearing when a breach was alleged, but judged on a perceived breach, contrary to the requirements of the Land Use Act; and the plot in dispute allocated to another person contrary to Section 28(2) of the Land Use Act; he urged this court to resolve this issue in favour of the appellant.

On issue three learned counsel submitted that the appellants as borne out by page 198 of the record developed the land, but not to completion; and there was no evidence from the respondents that the right was revoked because the value of development was not as required by Exhibit E; yet the Lower Court found that the evidence before it amounted to conceding to breach of terms of Exhibit E, as per page 466 of the record.