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.

The respondents have challenged exhibit E as not being fit to pass the test of being unequivocal in requiting the respondent to perform their public duty grounded on section 5(1)(a) of the Land Use Decree 1978 – a necessary condition precedent. See R. v. I.R.C. Re: Nathan (1884) 12 Q.B.D. 461 and Fawehinmi v. Akilu (1987) 4 NWLR (Pt.67) 797; (1987) 3 SC (Pt.11). They strongly contend that exhibit is in every respect a demand letter to perform a public duty.

They urge that the court dismiss the appeal and allow the cross-appeal.

Because of the common nature of the issues canvassed in this appeal and the cross-appeal, the parties have rightly in my view, treated the two appeals simultaneously. I have closely examined the two sets of issues for determination that are raised in the two appeals and I see that the two sets of issues are reconcilable and could be paired and treated together. To do otherwise, would involve repeating myself. For example, the appellant’s issues one and two completely encompass issues one and two in the brief filed by the respondents/cross appellants. As for issues three and four in the appeal and cross appeal respectively they raise an identical question to answer and so could be paired for disposition by the same stroke of reasoning. And thereafter, issue three in the respondents’ brief, I shall take in my stride. But for the respondents’ third issue, I am disposed to be guided in dealing with both appeals by the issues as raised by the appellant’s brief of argument.

I do not intend to split hairs over the nature of public duty cast upon the 1st respondent by section 5(1)(a) of the Land Use Act, Cap. 202 Laws of the Federation; it comprises granting Certificate of Occupancy under circumstances prescribed in the said Act to persons having the requisite locus standi. Based on that proposition of the law the appellant contend that the 1st respondent after having been requested by the appellant as per exhibit E has refused to perform the said public duty imposed on the 1st respondent by section 5(1)(a) (supra) i.e. towards the appellant by granting Certificate of Occupancy of plots 3 and 4 of Shomolu Extension Layout, Lagos. And this is so inspite of the appellant’s claim of legal right for the allocation of the said plots. Wherefore, the appellant in order to assert her legal right over the said plots has brought this action by way of order of mandamus for the wrongful refusal to exercise the jurisdiction or discretion in her favour. The court below as stated earlier refused to grant the order of mandamus.

It is settled that, where a person or body has a duty of public nature to perform or discretion of a public nature to exercise, order of mandamus can be issued to compel the performance of the duty or exercise of the discretion provided a request to so do preceded it. See Chief Emanuwa Utavbegho & Ors. v. Minister of Local Government (1957-58) WNLR 179 and Chief Gani Fawehinmi v. Inspector General of Police and Ors. (2002) 7 NWLR (Pt.767) 606 SC; The Stare Ex parte Savage v. E.C.N., Owerri 8 ENLR 55 and Layanju v. Araoye (1959) SCNLR 416.

Before examining section 5(1)(a) of the Land Use Act, if at all to ascertain the nature or otherwise of the public duty contemplated thereof, I think it is best to begin by ascertaining, indeed to see if it is established, the legal right the appellant has so profoundly asserted in this matter.

The court below not in so many words at page 36 lines 2 to 3 of the record declared that:

“It is also the view of this court that there is legal right on the part of the applicant to the order sought. Infact, Mr. Pedro concede this to her.”

Relying on exhibit C, the appellant has made a concerted submission in her brief of argument in the same vein as the court below. However, the respondents/cross appellants have disputed the basis of the assertion to any legal right. There can be no doubt that without legal right to the said plots, the assertion cannot stand and so the application has to fail. The point should be made that the appellant has not hinged the instant claim on her right of entitlement to compensation for the acquisition of her land in 1958. This was the substance of her claim before the land tribunal that was abandoned. Rather she has predicated the claim to legal right to the allocation of the said plots on having principally fulfilled the terms and conditions precedent as stipulated in exhibit C. The appellant stated categorically that she fulfilled all the terms and conditions for the allocation hence the legal tight to apply for the exercise of the public duty in her discretion. In other words, her claim to any legal right stands or falls on exhibit C. The question therefore is whether the appellant has met the terms and condition stipulated in exhibit C. The onus is squarely in this regard on the appellant. There can be no doubt that the payment of the sum of N65,000.00 is a necessary precondition. It is contended that a cheque for the said sum was sent to the Land Use and Allocation Committee by the appellant but that it was rejected. The court in acknowledging the importance of this point said at page 38 lines 30-32 to page 39 lines 1-12 thus:

“However, after stating all these, Mr. Pedro brought a fine point of law that the applicant has not provided

evidence that the cheque for N65,000.00 and other demanded requirements were ever received by the respondent.

This is a fine point but then it is so very important. Unfortunately Mr. Okunuga had not been able to provide an answer to it. To be able to exercise the discretion of this court judicially, this type of fine point of law which in fact 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 II.”

I agree with the court below that to invoke the court’s discretion the appellant should have met this said condition. It could have been a different kettle of fish if the said cheque had been appropriated into the respondents’ account. The appellant contend vigorously that she paid as directed in exhibit C. She issued the cheque accordingly. A great deal of controversy has raged between the parties as per their briefs as to the said rejection of exhibit D. The counter affidavit from paragraphs 12 to 18 have from the respondents’ point of view averred as to what happened to the cheque. They have not been challenged or denied as no reply was filed. The averments state as follows:-

“12. That when Penbridge Trading Company Limited became aware of the revocation of its right of occupancy and the allocation of its land to the applicant it briefed its solicitors Prof. A. B. Kasumu Chambers whom then petitioned the State government. A copy of the petition is attached as Exhibit A.

13. The respondents herein reviewed the whole matter and came to the conclusion that the former Military Administrator and Attorney General of the State were misinformed and erroneously revoked the right of occupancy of Penbridge Trading Company Ltd.
14. That consequently the respondents decided to cancel the notice of revocation of the right of occupancy of the land published in the official gazette of 25/5/99 and the letter of allocation of the land granted to the applicant on the 10th August, 1999.
15. That the respondents also approved for the applicant alternative piece of land within any government scheme of her choice in full and final settlement of her claim for compensation.
16. That the Executive Secretary Land Use and Allocation Committee of Lagos State informed me and I verily believed him that he conveyed the decision of the government on the matter to both parties.
17. That I was informed by the said Executive Secretary and I verily believed him that the cheque for N65,000.00k presented by the applicant for payment of the land in dispute was rejected by the respondents for reasons stated in paragraphs 14 and 15 above.
18. That I am aware that no official receipt for payment of the land in dispute was issued by the respondents to the applicant.”

The implication of not replying to the foregoing averments is to deem them admitted, therefore true and the court is expected to act on them. See Nwosu v. Imo State Environmental Sanitation Authority (supra) and Ajomale v. Yaduat No.2 (supra). Also, I agree with the respondents that address or submissions in such circumstances no matter how brilliantly done can never take the place of unchallenged evidence be it oral or by affidavit before the court. See Ekpenyong v. Etim (1990) 3 NWLR (Pt.140) 594 and Akibu v. Race Auto Supply Co. (2000) 14 NWLR (Pt. 686) 190. In the face of the foregoing overwhelming evidence as deposed to by the respondents on the question of rejection of the cheque, the terms and conditions in exhibit C cannot be said to have been complied with to the letter and so a legal right calling for enforcement has not as it were crystalised.

Meaning that there is no basis for the court below to exercise the jurisdiction or discretion to order a mandamus. In The State Ex parte Savage v. E.C.N.. Owerri (supra) the applicant in the cited case had fulfilled all the necessary conditions to entitle him to have electricity connected to his house and mandamus was ordered. Also in Banjo & Ors. v. Abeokuta Urban District Council (supra) the applicants had completed the necessary forms and all the conditions by the bye-law to entitle them to an order of mandamus.

The two above cited cases show conclusively that all the conditions set out as in this case to qualify for the exercise of the jurisdiction or court’s discretion have to be satisfied.

On the letter exhibit E my cursory remark in view of my stance so far in this matter is that the court below is right to hold that it qualified as a direct demand for the issuance of Certificate of Occupancy of the said plots 3 and 4. The message to this effect is clear as exhibit E invited the attention of the respondents through the Permanent Secretary to the outstanding matter of non-issuance of a Certificate of Occupancy in the matter. Besides, there is no statutory format. It is a constituent of the appellant’s standing to sue in this matter. In the circumstances, the respondents’ case in this respect must fail. And I so hold.

The other more serious obstacle to the court’s exercise of its jurisdiction or discretion in this regard stems from the third party’s interest that has stepped in by the cancellation of the notice of revocation in this matter so that the said plots 3 and 4 went back to Pen bridge Trading Co. Ltd. This is a critical point no court worth its salt would ignore i.e. third party interest.

The appellant has not denied the averments contained in paragraphs 12 to 18 of the counter-affidavit and so cannot feign ignorance of the said third party; she even took the 3rd party to court claiming the said plots. It therefore, comes to this that the respondents having divested themselves of the said plots were no longer in a position to perform the said public duty as requested by the appellant as the said plots have ceased to exist at the material time for allocation to the appellant. In this regard it would tantamount to an order in vain to have ordered mandamus. This situation is exemplified in the case of Queen v. Resident Ijebu Province Ex parte J. A. Oshunlajo WNLR (1957/58) 173, where the trial court granted an order of mandamus. On appeal, the order was discharged on the ground that the office had been abolished and therefore the public duty was incapable of performance. To put it more pungently once the situation averred in paragraphs 12 to 18 has resulted the respondents have become functus officio in that respect vis-a-vis the said plots.

I have no doubt that the court below properly directed itself in law in this regard by giving due attention to the foregoing matters before exercising the discretion to refuse the order of mandamus in the matter. On the whole I find no justification whatsoever for attacking the final conclusion reached by the court below to refuse the application. It is right in my view. The court below arrived at a fair and just conclusion whether rightly or wrongly it is immaterial in considering whether the decision ought to be set aside. I am even more fortified that in matters of discretion as here this court as an appellate court should not lightly overrule the discretion of the court below.

The Supreme Court clearly made that point in the case No. SC.201/2000 Chief Gani Fawehinmi v. Inspector General of Police & Ors. delivered on 10/5/2002, [(2002) 7 NWLR (Pt.767) 606], it said:

“If there is discretion in the performance of the duty, the court has the power to examine whether the discretion to refuse to act has been properly exercised. In the exercise of that power, the court will not lightly overrule the discretion just because it considers it desirable that the duty be performed. Even if it is found that the discretion was not properly exercised or that there was in fact no discretion at all in the matter, the court may still exercise its own discretion not to order mandamus on the general ground that the court would make no order in vain which could no longer be carried out on the ground of expediency…” per Uwaifo, J.S.C.

From the foregoing quotation, it seems to me that even though the latitude of court’s discretion in matters of mandamus is really wide enough the court all the same as here ought to be circumspect and avoid making orders in vain that could no longer be enforced.

In fact, I have been guided by the principle in the above cited quotation in dealing with this appeal. As to the matter of whether there is discretion in the performance of the instant public duty which is not in issue here, I suppose one has to examine the provisions of section 5(1)(a) of the Land Use Act and in my view relate the same to the provisions in section 34(3) of the Land Use Act. I set out the provisions thus:

Section 5(1)(a) states:

“It shall be lawful for the Military Governor in respect of land whether or not in an urban area-

(a) to grant statutory rights of occupancy to any person for all purposes.”

Section 34(3) states:-

“In respect of land to which subsection (2) of this section applies there shall be issued by the Military Governor on application to him in the prescribed form a Certificate of Occupancy if the Military Governor is satisfied that the land was, immediately before the commencement of this Decree, vested in that person.”

I have set out above the foregoing provisions for ease of reference. These provisions are instructive as to the nature of public duty exercisable by the 1st respondent in matters relating to grant of certificate of occupancy under the Land Use Act. However, it is only section 5(1)(a) that is relevant to have.

I do not decide that there is discretion in the performance of the duty evident from the provisions of sections 5(1)(a) and 34(3) of the Land Use Act. I will assume it with regard to section 5(1)(a) for purposes of this appeal. It is one factor that is certainly common to the parties in their submissions.

I need not therefore, pronounce specifically on the point as it is not directly in contest in the appeal except to say that in this regard the court below exercised its discretion rightly in my view. Again, it is even less expedient on the peculiar facts of this matter to accede to an order of mandamus.

As regard issue three in the respondents/cross appellants brief, I share with respect, the same view as the respondents that the order to offer the appellant a piece of land of equal value in another prime area without demanding any further payment was made without jurisdiction. It is not asked for. It is trite law that a court has to confine itself to reliefs sought by the parties and not act like father christmas. See Yisi (Nig.) Ltd. v. Trade Bank Plc (supra) and Col. M. B. Kaliel v. Alhaji Aliero (supra). Both parties are agreed on this point and rightly of course. The said order more or less has with respect put in confusion the meaning of the refusal of the order of mandamus. After all the court below has doubted if the cheque was ever received by the respondents. The only option open to this court in this situation and settled by the authorities is to vacate that order and accordingly I so order.

In conclusion, I find no merit whatsoever in the main appeal. I uphold the cross appeal as partly successful. Subject to my vacating the order as regards the relief not sought in this matter (that is on issue three in the cross appellants’ brief) by the parties, the main appeal stands dismissed in its entirety. Considering the circumstances of this matter, I make no order as to cost.

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Other Citations: 2002)LCN/1209(CA)