Sole Administrator Offa Lga V. Deaconess V.I. Adegboye (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

The Respondent herein is a holder of Oyun Local Government Customary Right of Occupancy No 1903 dated 11/7/1991 over a parcel of land lying and situate at Igbonna Road Offa, measuring 900 Sq metres. The present Offa Local Government was carved out of Oyun Local Government Area.

On the 1st of December, 2004, the Appellant by a public notice published in the Herald Newspaper and Kwara State Radio and Television informed allotees of Residential plot along Igbonna and Ikotun roads Offa to develop such plots of land within one month from the date of publication of the notice or have their Customary Right of Occupancy revoked.

On the 12th of July, 2005, the Respondent was served with a letter of revocation of Customary Right of Occupancy from the Appellants’ office on the ground that she failed to develop the plot allocated to her. After the revocation, the Respondent’s land was allocated to another person as she was told that she was at liberty to apply for another plot of land on payment of an application fee of N35,000.00.

The Respondent made moves to recover her plot through several letters in which she sought for settlement out of court with the Appellant, without success. She therefore took out a writ of summons and a statement of claim both dated 28th August, 2006 and filed the same date in which she claimed for a declaration that Mr. Yusuf O.M’s letter dated 12/7/2006 is unauthorized, null and void and of no effect whatsoever and that the claimant’s Customary Right of Occupancy still subsists. This claim was frontloaded with the statement on oath of the Respondent and seven documents.

Mr. B.F Lawal, learned counsel for the Appellant filed a memorandum of appearance and an 11 paragraphs statement of defence. Attached to the statement of defence is a written statement on oath of AbdulAzeez Adebiyi and a list of documents to be used at the trial.

Issues having been joined the case was set down for hearing. The Respondent adopted her statement and tendered some documents which were admitted in evidence. The sole witness for the Appellant also adopted his statement on oath and tendered in evidence some documents which were admitted as Exhibits. Learned counsel for the parties addressed the court. Thereafter, in a reserved and considered judgment which was delivered on the 3rd February, 2009, Kawu J held thus:

“I am satisfied from the evidence before me that the defendant did not act within the letter and spirit of the Land Use Act when it purported to revoke the claimant’s Right of Occupancy No.1903. I hereby accordingly declare the said revocation to be invalid, null and void.”

The Appellant herein is dissatisfied with the decision of the lower court. Being aggrieved it has brought this appeal. Its notice of appeal dated and filed on the 27th April, 2009 contains three grounds qf appeal. However, by a motion dated and filed on the 27/2/2012, the Appellant applied for and was granted leave to file and argue one additional ground of appeal.

Parties filed and exchanged briefs of argument. Appellant formulated two issues for determination of this appeal. They read as follows:-

1. “Whether having regard to the totality of the evidence before the lower court and the documents tendered as Exhibits a different case had not been made for the parties by the lower court in arriving at the decision reached.
2. Whether non-compliance with the provision of Order 33 of the Kwara State High Court divest the trial court of its competence/jurisdiction.”

Issue one is said to arise from ground 1, 2 and 3, while issue two from the additional ground of appeal.

For the Respondent’s notice of preliminary objection to the competence of the additional ground of appeal dated and filed on the 5/7/2012 was issued and same was argued in the Respondent’s brief of argument dated and filed on the 23/5/2012. Thereafter the Respondent formulated two issues for determination of the appeal. These issues are hereunder reproduced as follows:-

1. “Whether having request to the totality of the evidence before the lower court different case had not been made for the parties by the lower court in arriving at the decision reached.
2. Whether non-compliance with the provision of Order 33 of the Kwara State High Court (Civil Procedure) Rules divest the trial court of its competence/jurisdiction.”

The Appellant filed a reply brief on the 18/6/2012.

The issues formulated for determination of this appeal by the Appellant and those formulated by the Respondent are the same, I will therefore adopt the issues formulated by the Appellant in determination of this appeal. However, before delving into the argument and resolution of those issues, it is pertinent to consider the preliminary objection issued by the Respondent first.