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Lagos State Development and Property Corporation & Ors. v Foreign Finance Corporation (1991) – SC

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➥ CASE SUMMARY OF:
Lagos State Development and Property Corporation & Ors. v Foreign Finance Corporation (1991) – SC

by “PipAr” B.C. Chima

➥ COURT:
Supreme Court – SC. 9/1988

➥ JUDGEMENT DELIVERED ON:
17th May, 1991

➥ AREA(S) OF LAW
Notice of revocation.
Fair hearing.
Right of occupancy.

➥ NOTABLE DICTA
⦿ COURT OF APPEAL IS BOUND BY HER PREVIOUS JUDGEMENT
This is a hypothetical and an academic question but my answer to the question is in the affirmative, i.e., that the Court of Appeal is bound by its previous judgments. It is also bound by the judgments of the Supreme Court. The Court of Appeal has not contended the contrary. Since the Court of Appeal sits in divisions, now there exists the danger of decisions delivered in one division conflicting with decisions in another division. — Obaseki, JSC.

⦿ A DECISION IS PRESUMED INNOCENT UNTIL THE ERROR ON APPEAL IS CORRECTED
Under our judicial system In this country, every party not satisfied with the decision of the Court of Appeal has a constitutional right to appeal against the decision. See section 213 (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1979. This right, under the Constitution, the Supreme Court Rules and the Supreme Court Act has to be exercised In the manner prescribed and within the time prescribed by the Act or extended by the Court. Where the right is not exercised, it is presumed that the parties have accepted the judgment given without question and are not aggrieved. Even where a party has appealed against a decision, the decision is presumed correct until the error complained of is established. See Odiase v. Agho (1972) 1 All N.L.R. See Folorunsho v. Adeyemi (1975) 1 N.M.L.R. 128; See Williams v. Johnson (1973) 2 WA.C.A 253. The presumption of correctness of the decision is stronger where there is no appeal against the decision. — Obaseki, JSC.

⦿ TO VARY COURT JUDGEMENT, RESPONDENT NEEDS TO FILE RESPONDENT’S NOTICE
The 1st defendant cannot in the circumstances of this case, it not having appealed and not having filed a respondent’s notice, pray for a variation in the judgment in its favour. — Obaseki, JSC.

⦿ AN ACTION IN TRESPASS IS BASED ON EXCLUSIVE POSSESSION
An action In trespass Is based on exclusive possession of the land. See Mohammed Ojomu v. Salawu Ajao (1983) 9 S.C. 22; Amakor v. Obiefuna (1974) N.M.L.R. 331; (1974) 3S.C. 66. It lies against the whole world except one who can show a better title. See Aromire & Ors. v. Awoyemi (1972) 2 S.C. 1; Amakor v. Obiefuna (supra) at 77.  Trespass is a wrong to possession. It constitutes the slightest disturbance to possession by a person who cannot show a better title. See Abotche Kponugho & Ors. v. Adja Kodadja (1933) 2 WA.C.A. 24 per Lord Alness.  In order to succeed, a plaintiff must show that he is the owner of the land or that he had exclusive possession of it. A trespasser does not by the act of trespass secure possession in law from the person against whom he is in trespass. Jimoh Adelakun v. Sabitiyu Oduyele (1972) 6 S.C. 208 at 210.  A trespasser without a claim of right is a trespasser ab initio and the onus is on him to prove that he has a better right to possession In order to succeed in the defence. See O. Solomon & Ors. v. A.R. Mogaji & Ors. (1982) 11 S.C. 1. When trespassers knowingly and unlawfully take possession of lands, the defence of laches is not available to them. See Lasupo Akanni & Ors. v. Makanju (1978) 11 & 12 S.C. 13 at 21. — Obaseki, JSC.

⦿ R OF O HOLDS LARGER INTEREST THAN HOLDER OF LEASE
The Interest of a lessee in land is not exactly the same as that of a holder of a right of occupancy. A holder of a right of occupancy enjoys a larger interest than a holder of a lease (i.e. lease) although the two interests enjoy a common denominator which is a term of years. — Obaseki, JSC.

⦿ A GOVERNOR CAN DEFINITELY REVOKE A C OF O
On the issue of revocation, the Governor definitely has power to revoke a certificate of occupancy for  (1) a breach of the provisions which a certificate of occupancy is by section 10 deemed to contain;  (2) a breach of any term contained in the certificate of occupancy or in any special contract made under section 8.  See section 28(5) (a) & (b) Land Use Act, 1978. — Obaseki, JSC.

⦿ REVOCATION NOTICE IS TO BE SERVED
There is no evidence that any revocation notice was served on plaintiff in the manner stated above. The defendants’s witness’s testimony on service of the forfeiture notice on 13th November, 1979 is no compliance. The 4th defendant’s witness’s evidence of how on the 7th of November, 1980 he went on the land with labourers to clear the person moulding blocks on the land and the blocks is very implicating. More so as he was a Principal Executive Officer with the 1st defendant and acted on instruction of the 1st defendant. — Obaseki, JSC.

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⦿ COMPENSATION FOR REVOCATION UNDER THE LAND USE ACT
Compensation under sub-section (1) of section 28 of the Act would be as respects:-  (a)    the land for an amount equal to the rent if any paid by the occupier during the year in which the right of occupancy was revoked, i.e. 1979;  (b)    buildings, installation or improvements thereon for the amount of the replacement cost of the building, installation or improvement, that is to say, such cost as may be assessed on the basis of the prescribed method of assessment as determined by the appropriate officer less any depreciation together with interest at the bank rate of delayed payment of compensation and in respect of any improvement in the nature of reclamation works being such cost thereof as may be substantiated by documentary evidence and proof to the satisfaction of the appropriate officer;  (c)    crops on land apart from any building, installation or improvement thereon, for an amount equal to the value as prescribed and determined by the appropriate officer. — Obaseki, JSC.

⦿ TRESPASS: SPECIAL VS GENERAL DAMAGES
In an action for damages for special damages for trespass, special dam-ages must be pleaded and strictly proved, the value pleaded being normally a reflection of the prevailing market prices. The vital difference between a claim for compensation under the Land Use Act and compensation in trespass Is that general damages is only claimable in trespass. — Obaseki, JSC.

⦿ GOVERNOR HAS NO RIGHT TO REVOKE R OF O FOR ANOTHER PRIVATE PERSON
The evidence shows that the right of the plaintiff was revoked on the pretext of overriding public interest but in reality the land was thereafter granted to the 3rd defendant, a private person, for its private business. With the exception of revocation on ground of alienation under section 28(2) (a) or of the requirement of the land for mining purpose or oil pipelines under section 28(2)(c), the Governor has no right to revoke the statutory right of an occupier and grant the same to a private person for any other purpose than those specified by section 28(2) of the Act. — Bello, CJN.

⦿ JUSTICE DOES NOT TILT BY VIRTUE OF THE PERSONS BEFORE THE COURT
By our trial process court relies on what parties have lawfully brought before the court and their evidence In support of those matters will dictate where the scale of justice tilts. But under no circumstances will the scale be tilted by virtue of the personalities In a case or importance of a case In the eyes of the public, for cases are not decided by public acclaim, I lathe lawful evidence that influence the fate of every case. — Belgore, JSC.

⦿ OVERZEALOUS PUBLIC SERVANTS MUST BE MADE TO PAY FOR THEIR ACTIONS
It is not out of place to sound another note of warning to public servants generally on the execution of their duties: Many a time some of them go out of their way by resorting to methods that will embarrass the government or their employers in carrying out simple duties. No government anywhere should condone the violation of its own laws. The breach of the law which sometimes leads to payment of damages is a sad reflection on those who are employed and paid to assist in the implementation of the rules and regulations made under the law. Those who think that might be right and that the Government can do no wrong should better have a second thought. We have long passed that stage. Public servants who behave as if they are above the law believing that their actions will be approved by the Government are not better than those who deliberately set out on a collision course with the law … The time has come that a copy of judgment wherein erring officials who set out to serve their personal interests should now be sent to the government so that those who mislead the government should be surcharged for damages incurred by the government as a result of their ill-advised action. Overzealous public servants must be made to pay for their actions. The laws, rules and regulations for public servants are designed to guide them in the discharge of their public duties. No laws place them above the laws of the land. — Olatawura, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Obaseki JSC

➥ APPEARANCES
⦿ FOR THE APPELLANT
Professor A.B. Kasunmu, S.A.N.

⦿ FOR THE RESPONDENT
Chief G.O.K. Ajayi, S.A.N.

➥ CASE HISTORY
It was not seriously disputed that in 1971, the 1st defendant had granted a lease of State Land for a period of 90 years to the plaintiff who took possession and made some developments thereon. On 7th November, 1980, the defendants, their servants and agents broke onto the land and demolished the plaintiff’s buildings. The land has been granted to the 3rd defendant by the Government of Lagos State on 7th August, 1980.  The defendants’ defence was that the Lagos State Government forfeited the plaintiff’s interest in the land on the ground that he had committed breaches of the terms of the grant to him to wit, failure to pay ground rents which had been in arrears for many years and failure to develop the land in accordance with the condition of the grant. In the alternative, the defendants pleaded that the interest of the plaintiff in the land had been determined by the revocation of his right of occupancy over the land by the Governor of Lagos State under an instrument of revocation dated 8th February, 1980 pursuant to the provisions of the Land Use Act, 1978 section 28.

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The plaintiff claims special and general damages against the defendants jointly and severally for the sum of one million naira (N1,000,000.00) for the destruction of the plaintiff’s property and trespass committed by the defendants.

The issues joined came up for trial before Onalaja, J. After hearing evidence and addresses of counsel, he delivered a well-considered judgment:-  (a) dismissing the claim against the 4th defendant in its entirety, and  (b) entering judgment in favour of the plaintiff against the 1st, 2nd and 3rd defendants for damages for trespass; and  (c) granting an order of injunction against the 1st, 2nd and 3rd defendants.

The Defendants appealed to the Court of Appeal which dismissed the appeal on the question of liability but allowed it in part on the issue of damages.

➥ ISSUE(S) & RESOLUTION

I. On the revocation by the governor.

RULING:
“The purposes for which the power of revocation of a right of occupancy was conferred on the Military Governor of a State have been clearly set out in the Land Use Act. Any revocation for purposes outside the ones prescribed even though ostensibly for purposes prescribed by the Land Use Act is against the policy and intention of the Land Use Act and can be declared Invalid and null and void by a competent court of law. The Court of Appeal having found on the evidence that the Military Governor revoked the plaintiff’s right of occupancy not in the manner and for the purposes prescribed by the Land Use Act was perfectly justified to have declared the revocation invalid, and null and void.”

“Generally, it is settled principle of law and rule of practice that parties are bound by their pleadings. If on the pleadings an Issue of validity of the revocation is joined and evidence is led to establish the Invalidity of the revocation, the court cannot escape the duty of declaring the revocation Invalid notwithstanding the fact that those reasons or grounds were not pleaded. Invalidity having been pleaded, the failure to plead the evidence Is not fatal. See Peenok’s case Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) N.S.C.C. vol. 13 page 477.”

“The burden is on the defendants to plead and prove valid revocation. It is common ground that the plaintiff/respondent was in possession. Since the appellants raised the issue of title and revocation of the right of occupancy, any pleading which does not set out facts which constitute valid revocation of the right of occupancy under section 28 of the Land Use Act will not advance the case of the respondent one inch along the line.  The plea of revocation involves acknowledgment of the existence of a right of occupancy prior to that act of revocation. The burden is therefore on the defendants to plead and prove a valid revocation.”

“Revocation is a different penal action from forfeiture. It is a deprivation of a right of occupancy. The predisposing causes may be the same. Revocation does not involve judicial process but forfeiture does. Revocation involves a ministerial process to bring it into effect and does not unlike forfeiture, Invariably depend on the default of the grantee or tenant. There is no evidence that the right of occupancy of the plaintiff was revoked for any of the above stated breaches. The revocation was supposed to be for public purposes. See Exhibit 18. Public purposes are defined in section 50 of the Land Use Act and do not include the revocation of the right of occupancy of one grantee for the purpose of vesting it in another. This is on the evidence what has happened in this case where the statutory right of occupancy granted to the plaintiff was revoked (see Exhibit 18) without complying with the legal formalities and vested in the 3rd defendant/respondent (see Exhibit 20). Public purposes under the Land Use Act have been defined to include:-  (a)    For exclusive government use or for general public use; (b)    for use by any body corporate directly established by law or by any body corporate registered under the Companies Decree 1968 (now Companies and Corporate Affairs Decree) as respects which Government owns shares, stocks or debenture;  (c)    for or in connection with sanitary improvements of any kind;  (d)    for obtaining control overland contiguous to any part or overland the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the government;  (e)    for obtaining control over land required for or in connection with the development of telecommunications or provisions of electricity;  (f)     for obtaining control over land required for or in connection with mining purposes;  (g)    for obtaining control over land required for or in connection with planned urban or rural development or settlement;  (h)    for obtaining control overland required for or in connection with economic, industrial or agricultural development;  (i)     for educational and other social services. See section 50 Land Use Act, 1978 No. 6.  When therefore public purpose Is stated to be the ground for revocation, any of the above purposes Is Impliedly Incorporated In the order. If as has occurred in the Instant appeal the land taken ostensibly for public purposes in the order of revocation is later discovered to be In use for other purposes, the revocation of the statutory right of occupancy is vitiated and the order becomes unlawful.”

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“Other purposes not specified as public purposes in the section cannot be lawful purpose under the Act. To revoke a statutory right of occupancy for public purposes, the letter and spirit of the laws must be adhered to. Since revocation of a grant deprives the holder of his proprietary right, the terms must be strictly complied with and strict construction of the provisions made. See Bello v. The Diocesan Synod of Lagos & Ors. (1973) 3 S.C. p.131.”
.
.
II. Non-joinder of the Lagos State Government.

RULING:
“Raises the question of non-joinder of Lagos State Government as a party in view of the plea of invalidity of the revocation. The radical title to the land is not in issue and so the non-joinder of the Lagos State Government did not affect the proper determination of the issues joined. There was no complaint of trespass against the Lagos State Government.”
.
.
III. On right of reentry for breach of covenant.

RULING:
“A right of re-entry for breach of a covenant contained in a lease cannot override the process of recovery prescribed by statute be it the State Land Law Cap. 134 Law of Lagos State or the Recovery of Premises Law, Cap. 118, Laws of Lagos State.”

“Prudence and the law demand that a Governor revoking a right of occupancy for public purpose or for any purpose should accord all those aggrieved by the revocation fair hearing as provided by section 33(1) of the Constitution if revocation is for breaches of the terms of the certificate of occupancy.”

“Having regard to the present state of the law therefore unless the appellants can establish a better title than the plaintiff/respondent their entry into the land in dispute constitute an act of trespass. The burden therefore was on the defendants to prove valid peaceable re-entry and valid revocation, since the pleading of such defences pre-supposes valid prior title. The forceful manner of entry only serves to aggravate the act of trespass and enhance the quantum of damages recover-able.”
.
.
IV. On stating the public purpose for revocation.

RULING:
“If there is no secrecy about the public purpose for which the land is required, I see no ground for withholding information as to the public purpose from the holder of the right of occupancy and the public.”

“I have in Ereku & Ors. v. The Military Governor of Midwestern State of Nigeria & Ors. (1974) 10 S.C. 59 at the trial stage years ago emphasised the need to spell out the public purpose in the notice of acquisition. I would now today give the same advise in cases of revocation. The words of section 28 of the Land Use Act are clear and unambiguous as to what constitutes lawful revocation.”

.
.
.
✓ DECISION:
“The appeal fails and is hereby dismissed with N500.00 costs to the Respondent. The decision of the Court of Appeal is hereby affirmed.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Sections 28, 29, 34, 44, Land Use Act.

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

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