1. CANAL INVESTMENT LIMITED
1. TOURIST COUNTRYSIDE RESORTS LIMITED
2. JACCEE PROPERTIES NIGERIA LIMITED
3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
(DELIVERED BY HON. JUSTICE TANI YUSUF HASSAN. JCA)
This appeal is against the judgment of the High Court of Federal Capital Territory, Abuja delivered on the 30th day of November, 2009, in Suit No. FCT/HC/GWD/CV/19/2008.
The appellant was not a party to the suit at the lower court. However by a motion dated and filed on the 11th day of May, 2015, the appellant prayed this court for the following orders:
1. An order granting leave to the person interested/applicant to appeal as an appellant being an interested person in the judgment of Federal Capital Territory, High Court, Abuja presided by Honourable Justice O. C Agbaza delivered on 30th November, 2009 in Suit No. FCT/H/GWD/CV/19/ I 2008 between Tourist Countryside Resorts Limited , and Anor Vs Federal Capital Development Authority
2. An order of this Honourable court enlarging the time within which the person interested/Applicant may seek leave to appeal against the judgment of Federal Capital Territory, High Court, Abuja presided over by Honourable Justice O, C Agbaza delivered on 30th November, 2009 in Suit No. FCT/HC/GWD/CV/19/2008 between Tourist Country-side Resorts Limited and Anor Vs Federal Capital Development Authority.
3. An order granting leave to the person interested/applicant to appeal against the judgment of the Federal Capital Territory, High Court, Abuja presided over by Honourable Justice O. C. Agbaza delivered on 30th November, 2009 in Suit No. FCT/HC/GWD/CV/19/2008 between Tourist Country-side Resorts Limited and Anor Vs Federal Capital Development Authority.
4. An order enlarging time within which the person interested/applicant may appeal against the judgment of the Federal Capital Territory, High Court, Abuja, presided over by Honourable Justice 0. C. Agbaza delivered on 30th J November, 2009 in Suit No. FCT/HC/GWD/CV/19/2008 between Tourist Countryside Resorts Limited and Anor Vs Federal Capital Development Authority.
5. : An order that the Records of Appeal already compiled in Appeal No. CA/A/298/2012 be used as the Record of Appeal in this appeal and that same be deemed as if the Record was compiled by the interested person/applicant.
6. An order of interlocutory injunction restraining the Respondents, their agents, privies, servants or any other person or authority, deriving power, authority, rights or privileges from any of the Respondents from disturbing, removing, evicting, harassing, displacing or doing anything or act adverse to the possession, occupation and peaceful enjoyment of the land covered by the judgment of the Federal Capital Territory High Court delivered by Honourable Justice O. C. Agbaza, on 30th of November, 2009 in Suit No. FCT/HC/GWD/CV/19/2008, pending the final determination of this Appeal.
7. An order of stay of Execution of the judgment of the Federal Capital Territory High Court delivered by Honourable Justice O. C. Agbaze, on the 30th of November, 2009 in suit No. FCT/HC/GWD/CV/19/2008, pending the final determination of this appeal.
And for such further order(s) as the Honourable Court may deem fit to make in the circumstances of this case.
The application is predicated on the following grounds:
a) The appellant/applicant being dissatisfied with the judgment of the lower court delivered on 30/11/2009 against its interest without joining it as a party filed a motion on Notice to the lower court to set aside the judgment.
b) The learned trial judge in a ruling delivered on the 3r day of . March, 2011refused to set aside the judgment of 30/11/2009.
c) The appellant/applicant briefed its former counsel to appeal the refusal to set aside the judgment of 30/11/2009 to this Honourable Court but both applications filed on 25th February and 17th June, 2011 to this Honourable Court were struck out on technical grounds hence this application.
d) The appellant/applicant was also not aware of the judgment of 30/11/2009 until early 2010 when the 1st and 2nd
respondents came to chase out the over forty (40) tenants of the appellant/applicant of the shopping mall.
e) The appellant/applicant was also allocated the plot of land in dispute by the Federal Capital Territory in January, 2006, has been in quiet possession ever since and had constructed a high rise shopping mall occupied by over forty (40) rent paying tenants since 2008.
f) The Respondents throughout the period of trial at the court below between 2008 and 2009 deliberately refused to put the appellant/applicant on notice of the pendency of this suit thereby getting judgment to take over the multimillion shopping mall without any opportunity of been heard.
g) The Records of Appeal have been settled in Appeal No. CA/A/298/2012
h) The grounds of appeal raise issues that are weighty and could be decided in favour of the Appellant/Applicant.
i) If the 1st and 2nd Respondents are allowed to continue their invasion of the shopping mall of the appellant/applicant all the tenants would be frightened away and this Honourable Court would have been presented with a fait accompli.
j) The Appeal No. CA/A298B/2012 in which leave was earlier granted the applicant to appeal as an interested person was struck out by the Honourable on technical ground having adjudged incompetent on Friday, the 8th of May, 2015 hence this application.
k) The grant of this application would enable this case to be tried on its merit and justice would be done to all parties thereby.
I) It is the interest of justice to maintain status quo ante bellum pending the determination of the appeal.
m) The delay occasioned in hearing this case on its merit was due to error and omission.
The application was supported by thirty eight paragraph affidavit and annexures, marked exhibits "A-J". The application was granted on the 26th May, 2015.
Briefly the facts of the case are that, the 1st and 2nd Respondents as plaintiffs at the lower court filed a writ of summons and statement of claim against the 3rd Respondent as defendant therein, on the 10th of April, 2008. The 1st Respondent was granted a Certificate of Occupancy No. FCT/ABU/MISC/10972 over plots 498 and 499 Central Business District, FCT on 31st October, 1994, The 1st Respondent appointed the 2nd Respondent as her lawful attorney and management of all affairs pertaining to plots 498 and 499. On 24/04/2004, the 3rd Respondent withdrew the allocation of plots 498 and 499 to the Respondents.
That sometimes in 2004/2005 the 3rd Respondent demanded that owners of parcels of land within the FCT should submit their title documents for recertification and the Respondents submitted the original copy of the Certificate of Occupancy in respect of plots 498 and 499. A revocation notice dated 10/05/2005 was delivered to the Respondents on 14th September, 2005.
The appellant was allocated the plots 498 and 499 later renamed plot 1138 in Cadastral Zone A00 of Central Business District FCT Abuja, by the 3rd respondent in the year 2006. The appellant immediately commenced the construction of a shopping mall on the plot 1138 which was completed within 2 years that is in 2008, The shopping mall is now in occupation of over 40 (forty) tenants, enjoying undisturbed, quiet and exclusive possession until the 14/06/2011 when the 1st and 2nd Respondents came with a claim that they obtained judgment from the lower court to take over the multimillion naira shopping mall built by the appellant. *
The judgment of the lower court gave rise to this appeal. The Notice of Appeal filed on the 27th of May, 2015 has four grounds with their particulars and reliefs sought.
The Appellant's Brief settled by its counsel B. J. Akomolafe Esq .was dated and filed on 31st July, 2015. In it three issues are distilled as follows:
1. "Whether or not the judgment of 3rd November, 2009 delivered by the learned Trial Judge without hearing. either the Minister of Federal Capital Territory, Abuja or the Appellant has occasioned miscarriage of Justice in anyway" (Grounds 1 and3).
2. "Whether or not it is sufficiently notorious to residents or inhabitants of FCT, Abuja that infrastructures in Central Business District FCT, Abuja are already established and/or developed (Ground2).
3, "Whether or not the 1st and 2nd Respondents by their conduct have not intimated that they will offer no opposition to the construction of the multimillion naira shopping on plot No. 498 and 499 (later renamed plot No. 1138) Cadastral Business District, FCT, Abuja (Ground 4).
The 1st and 2nd Respondents Counsel B. C. Igwilo also identified three issues for determination of this appeal as follows:
1. "Whether the non joinder of the Minister, Federal Capital Territory Minister FCT") and the appellant robbed the trial court of jurisdiction to hear and determine the 1st and 2nd Respondents action thus leading to a miscarriage of justice" (Grounds 1 and 3).
2. "Whether or not it is sufficiently notorious to residents or inhabitants of FCT, Abuja that infrastructures in Central Business District FCT, Abuja are already established and/or developed" (Ground 2).
3. "Whether the 1st and 2nd Respondents are guilty of estoppel by conduct"
The 3rd respondent's counsel J. D. Elogun did not file any brief on behalf of the 3rd respondent.
I have considered the issues formulated by the parties, taking into account the grounds of appeal filed. It is my opinion that the issues formulated by the 1st and 2nd respondents are more apt to the determination of this appeal.
"Whether the nonjoinder of the Minister, Federal Capital Territory ("Minister FCT"), Abuja and the Appellant robbed the trial court of jurisdiction to hear and determine the 1st and 2nd Respondents action thus leading to a miscarriage of justice"
On this issue the appellant's counsel submitted that in an action for recovery of land, all the persons who are in possession should be joined as defendants. That it is trite a court will not make an order or give a judgment that will affect the interest or right of a person or body that is not a party to the case and who was never heard in the matter. The court was referred to Maikori Vs Lere (1992) 3 NWLR (part 231) 525, Olawuyi Vs Adeyemi (1990) 4 NWLR (part 147) 746 and Oroh Vs Buraimoh (1990) 2 NWLR (part 134) 641. Also relying on Nkwocha Vs MTN (Nig.) Comm. Ltd (2008) 11 NWLR (part 1099) 439 at 459, N.D.I.C Vs Ifediegwu (2003) 1 NWLR (part 800) 56 and Ekiyor Vs Bonor (1999) 9 NWLR (part 519)1. It is submitted for the appellant that any decision of a court that determines a person's civil rights and obligations without giving the person whose rights and obligations were so determined the opportunity of making representations must be declared void on appeal, as the decision would be in-conflict with section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
It is contended that the 1st and 2nd respondents knew of the appellant's interest on plot Noi 1138 Cadastral Zone A00 Central Business District FCT, Abuja with over forty (40) tenants in occupation of the shopping mall built by the appellants four years before the commencement of the suit filed by them. But the 1 and 2nd respondents failed to join the appellant as a defendant in the suit pursuant to Order 10 Rule 3(1) of the High Court of Federal Capital Territory, Abuja. The case of Ngwu Vs Onuigbo (1999) 13 NWLR (part 636) 512 at 533 was referred.
That the minister of Federal Capital Territory who is vested with the statutory power to allocate and revoke land in FCT Abuja was also not joined as a necessary party in the suit at the lower court. It is submitted that for a court to be competent and have jurisdiction over a matter, proper parties must be joined in the suit. Appellant's counsel referred to Cotecna Int'l Ltd Vs Churchgate (Nig.) Ltd (2010) 18 NWLR (part 1225) 346 at 396 paragraphs E-H.
Relying on the case of Mpama Vs F.B.N Plc (2013) 5 NWLR (part1346) 176 at 204, it is submitted that failure of the respondents to join the appellant as a party to the suit has denied the appellant of its right to fair hearing and occasioned a miscarriage of justice.
The court was urged to resolve the issue in favour of the appellant and set aside the judgment of the trial court.
Responding, it is contended for the 1st and 2nd respondents that the appellant is not a necessary party and the trial court was properly constituted with FCDA as defendant and under the control of the Minister. That joining the Minister is unnecessary having been represented by FCDA, which defendended the suit vigorously. The respondents counsel submitted that what makes a person a necessary party to a suit is twofold:
a) That he should be bound by the result; and
b) That the question to be settled must be a question in the action which cannot be effectually and completely settled unless he is a party. He referred to Green Vs Green (1987) 3 NWLR (part 61) 480.
The Respondents contended that their suit is on the validity or otherwise of the Notice of Revocation which the FCDA claimed it undertook, and tendered same at the trial to justify the revocation. That the Minister had constructive notice of the suit and would have joined if he had anything to say different from what the FCDA told the court. The case of Goldmark (Nig.) Ltd Vs Ibafon Comp. Ltd. (2012) 10 NWLR (part 1308) 291 was referred to.
It is also contended for the respondents that the alleged revocatisn of the 1st and 2nd respondent's Certificate of Occupancy on 24/04/2004 and the Notice of Revocation dated 10/05/2005 served on the respondents on 14/09/2005 was declared null and void by the trial court which finding is not appealed against and remains binding on the appellant The court was referred to Nwora Vs Nwabueze (2011) 17 NWLR (part 1277) 699.
That the suit was founded between the 1st and 2nd respondents on one hand and the FCDA and or Minister FCT on the other hand which vested the trial court with jurisdiction to entertain the matter which is as far as necessary parties are concerned.
It is trite law that jurisdiction is determined by the plaintiff's claim as endorsed on the Writ of Summons and statement of claim. Counsel referred Onuorah Vs KRPC Ltd (2005) 6 NWLR (part 921) 393.
That the appellant's presence at the trial would not have served any useful purpose as it had no role to play in the determination of the primary question for resolution at the trial, not been a necessary party. The court was referred to Biyu Vs Ibrahim (2006) 8 NWLR (part 981) 1, Ojo Vs Ogbe (2007) 9 NWLR (part 1040) 542 Peenok Invs Ltd Vs Hotel Presidential (1982) 12 SC 1 and Madu V Madu (2008) 2 3 SC(part 11) 109.
It is further submitted that the revocation of the land in 2004 and notice of revocation served in 2005 is a breach of the Land Use Act. That the Certificate of Occupancy granted the 1st respondent since 1994 remains valid and subsisting. The case of Ganikon Vs Ugochukwu Chem. Ind. Ltd. (1993) 6 NWLR (part 297) 55 was referred to.
It is also contended that the 1st and 2nd respondents were not aware of the presence of the appellant on the land and there was no relief sought against the appellant, and its non joinder would not affect the proper determination of the issues joined. 1st and 2nd respondents counsel relied on Dantsoho Vs Mohammed (2003) 2 SC 42.
That the purported grant of the disputed land to the appellant is invalid because the 3rd respondent has no title or interest on the land to transfer. The court was referred to Kyari Vs Alkali (2001) SC (part 11) 192, Attorney General of Bendel State Vs Aideyan (1980) 4 NWLR (part 118) 646 SC and Osho Vs Foreign Finance Corporation 1991) 4 NWLR (part 184) 157 SC.
He urged the court to resolve the issue in favour of the 1st and 2nd respondents.
The appellant's reply brief is that the cases cited by the respondent are irrelevant and should be discountenanced.
The contention of the appellant is that it has been in possession of the disputed land for over four years before the institution of the suit and judgment therein. If the judgment of the court were to be enforced against the appellant, the appellant stands to lose its life investment for failure of the 1st and 2nd respondents to join the appellant in the suit at the lower court.
One of the cardinal requirements of law, to vest a court with jurisdiction to hear a case is that the parties or persons to be affected by its decision must be dully summoned or served with the processes of court and given opportunities to be heard. This is an inalienable constitutional right of every person under section 36 (1) of the Constitution of the Federal Republic of Nigeria 1^999 (as amended) - Ayoade Vs Spring Bank Plc (2014) 4 NWLR (part 1396) 93 at 100.
In the instant case, the appellant was not a party to the suit before the High Court, FCT. Its property was directly in issue and its interest was directly affected in the suit and it was never put on notice. Paragraph (d) of the grounds upon which the application was predicated to appeal as an appellant being an interested person in the judgment of the Federal Capital Territory High Court, Abuja in Suit No. FCT/HC/GWA/CV/19/2008 delivered on 30th November, 2009 reads:
"The Appellant/Applicant was also not aware of the judgment of 30/11/2009 until early 2010 when the 1st and 2nd respondents came to chase out the over forty (40) tenants of the Appellant/Applicants Shopping Mall",
The1st and 2nd respondents contrary to their claim that they were not aware that the appellant was in possession of the disputed land, contemplated making the occupiers of the shopping mall, victims at the receiving end of their suit. The 1st and 2nd respondents had a legal and moral duty to make the appellant a party to the suit, to give it opportunity to be heard which the order sought may inflict on the property.
Necessary parties are those who are not only interested in the subject matter of the proceedings, but also who, in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the parties cannot be properly settled unless they are parties to the action instituted by the plaintiff. See Green Vs Green (1987) 3 NWLR (part 61) 480, Mobil Oil Pic Vs Denr Ltd (2004) X NWLR (part 853) 142, Lawal Vs PGD (Nig.) Ltd. (2001) 17 NWLR (part 742) 393 and Obasanjo Vs Yusuf (2004) 9 NWLR (part 877) 144.
The respondents' counsel submitted that the findings of the trial court binds the appellant since the appellant did not appeal against the said findings. However the respondents' counsel submitted further that the appellant was not a necessary party to the proceedings. If the appellant as contended by the respondents is not a necessary party, it does not therefore arise for them to complain that the findings of the trial court binds the appellant for its failure to appeal against the said judgment. I find this submission as totally misconceived, especially as the 1st and 2nd respondents' counsel conceded that an order made by a court against a person not a party before it or without giving the person a hearing is an order made in breach of section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
After making this clear concession the respondents' counsel delved into another misconception to maintain that the findings of the trial court was not made against the appellant.
However any judgment made with an order against a necessary and desirable party behind its back will be of no avail. It was a party whose presence before the court as a defendant was apt to enable the court effectually and completely adjudicate or settle all the questions involved in the matter. See N.U.R.T.W Vs Road Transport (2012) 1 SCNJ 330 at 333.
The counsel should always be consistent in presenting his case, not to approbate and reprobate. The court must also be fair to all those who have interest in the decision that will follow. Therefore trials must be conducted according to law and all rules formulated to ensure that justice is done to the parties, to a cause or matter - PDP Vs Abubakar (2007) 3 NWLR (part 1022) 515.
The case of the 1st and 2nd respondents is that the 1st respondent was allocated the land No. 498 and 499 now renamed plot 1138 in Cadastral Zone A00 of Central Business District FCT Abuja in 1994. That the allocation was withdrawn in the year 2004 and the Revocation Notice was issued in 2005.
The appellant on the other hand claimed to have been allocated the same plot 1138 in the year 2006.
It is therefore very clear in the circumstance that the appellant is a necessary party in the suit instituted by the l5t and 21d respondents for a declaration that the 1st respondent is the lawful owner of plots 498 and 499 now plot 1138 Central Business District FCT, Abuja.
This is because the appellant's interest in the property may be affected by the judgment of the trial court. Since the allocation of the respondents on the property has been revoked and same properly allocated to the appellant, the appellant is not only a necessary party but a desirable party for an effectual and just determination of the suit.
A court has no jurisdiction to make orders to bind a party that was not given opportunity to be heard by the court before issuing the orders. See Biyu Vs Ibrahim (2006) 8 NWLR (part 981) 1 and Nnaemeka Vs Chukwuogor (2007) 5 NWLR (part 1026) 60.
In the instant case the non joinder of the appellant in the suit instituted by the 1st and 2nd respondents robbed the trial court of jurisdiction to entertain the matter.
Having considered the submissions of both counsel to the parties, I have no difficulty in agreeing with the submission of the counsel for the appellant. Both the circumstances of this case and the law are in favour of the appellant. I find the steps taken by the appellant by filing an application for leave to be person/applicant interested to appeal as an appellant, being an interested party in the judgment delivered on 30th November, 2009 in suit No. FCT/HC/GWD/CV/19/2008, as proper and contrary to the submission of the respondents' counsel that the appeal is unnecessary, being academic.
Issue one is resolved in favour of the appellant against the respondents.
"Whether or not it is sufficiently notorious to residents or inhabitants of FCT, Abuja that infrastructures in Central Business District FCT, Abuja are already established and/or developed".
The appellant's counsel submitted on this issue that it is general knowledge that infrastructures in Central Business District of FCT Abuja had long been fully developed. Counsel referred to section 122(2)(a) to (m) 2011 of Evidence Act of facts which court must take judicial notice. That the l5t and 2nd respondents suppressed these facts to avoid been held to have refused to develop plot 1138 of Cadastral Zone A00 Central Business District FCT, Abuja since 1994 when the plot was allegedly allocated to them contrary to the terms of the grants.
- It is submitted for the appellant that a court can take judicial notice of happenings in the environment in which the court is situated. The case of Mumu Vs Agor (2003) 8 NWLR (part 313) 573 at 584 was referred. That judicial notice are facts which a judge can be called to act upon either from his general knowledge of them or from inquiries to be made for his own information from proper sources. The court was referred to M. W. T- (Nig-) Ltd- Vs P. T. F- (2007) 15 NWLR (part 1058 457 at 487.
He urged the court to resolve the issue in favour of the appellant.
In response counsel to the 1st and 2nd respondents submitted that Ground 2 under which issue 2 was formulated is not a ratio decidendi in the judgment but an orbiter. He referred to Saude Vs Abdullahi (1989) 4 NWLR (part 116) 387 at 429 paragraph F.
The respondents submitted that assuming without conceding that the issue is properly founded on a valid ground of appeal the notorious nature of existence of infrastructure has no probative value whatsoever and in particular on determining whether the Notice of Revocation was valid or invalid.
Submitting that the existence of infrastructures cannot prejudicially affect the consequence of non compliance with the Land Use Act by the non service of revocation, before a revocation. The court was referred to Goldmark (Nig.) Vs Ibafon Comp. (supra).
It is finally submitted that while section 122(4) of the Evidence Act, 2011 grants the courts license to accept matters of judicial notice as they deem fit, they are- entitled to insist on proof. Counsel urged the court to resolve the issue against the appellant.
In order to bring out the picture clearer, it may be better to reproduce ground 2 of the Notice of Appeal which reads. The Trial Judge misdirected himself when he held as follows:
"The court is not informed if there are already established infrastructures in the area where these plots are located or that the plots have been reallocated".
The contention of the 1st and 2nd respondents is that the Notice of Revocation issued to the 1st respondent by the 3rd respondent is in breach of the provisions of the Land Use Act, because the revocation was said to be in 2004 and the Notice of Revocation served thereafter in 2005 instead of the other way round. This is the determining outcome of the suit at the trial court.
The Supreme Court in Marine Management Vs N- M. A. (2012) 12 SCNJ 128 at 133 held:
"An issue arising from the ground of appeal and admissibility of Exhibit upon which the court has taken a decision is relevant and cannot be regarded as mere orbiter dictum. The court was bound and obliged to pronounce on it"
In the instant case the findings of the trial court as reflected at page 232 of the record is based on the Notice of Revocation issued to the 1st respondent by the 3rd respondent and the argument of counsel that the 1st and 2nd respondents are unaware of any structure on the disputed plot.
The trial court relied on the Notice of Revocation admitted as exhibit W at page 73 of the record to declare it null and void and of no effect. Also the argument of counsel that the 1st and 2nd respondents are unaware of any structure on plot 1138 which the court was obliged to make a pronouncement on it.
Therefore observation of the 1st and 2nd respondents that ground 2 of the Notice of Appeal is orbiter cannot be correct. This Is because the findings of the trial court was based on Revocation Notice and argument of counsel upon which the court made its findings.
j It is not in dispute that Is1 respondent was allocated plots 498 and 499 now renamed plot 1138 in 1994.
The allocation was withdrawn in 2004 and Notice of Revocation dated 10th May, 2005 was issued to the 1st respondent. What is in contention was the time the notice was served on the 1st respondent.
By virtue of section 28(6) of the Land Use Act, any revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor in respect of state and (Minster in respect of Federal) and notice thereof shall be given to the holder - Mulima Vs Usman (2014) 16 NWLR (part 1432) 160 at 175.
By the above provision of the Land Use Act what is important is to put the holder on notice. This step has been complied with in the case of 1st respondent. Section 28(5)(a) and (b) of the Land Use Act 1978 is to the effect that a Governor of a State (Minister at Federal) has power to revoke a Certificate of Occupancy for a breach of the terms which is deemed to be contained in the Certificate of Occupancy N.E.W. Ltc Vs Denap Ltd (1997) 10 NWLR (part 525) 481 at 487 - 488.
PW1, Kenechukwu Obi is the 1st respondent's witness at the trial court who confirmed under cross examination at page 214 of the record that he did not comply with the requirement in the Certificate of Occupancy to develop the property within two (2) years.
DW1 is Jonah Audu. His evidence under cross examination was that the reason for revocation of the plot allocated to the 1st respondent was as a result of continuous contravention of the terms of grant, particularly failure to develop within the stipulated period.
The allocation to the l5t respondent was in 1994 and by the time it was revoked in 2005 there was no development on the land.
One of the preconditions for the exercise of power of revocation is that it must be shown clearly to be for overriding public interest. See R.C.O. and S Ltd Vs Rain bow net Ltd (2014) 5 NWLR (part 1401) 516 at 524.
In the instant case the plots 498 and 499 now plot 1138 was allocated to the 1st respondent in 1994 in Central Business District for public purpose. The allocation of the same plot to the appellant in the year 2006 was also in the interest of public who would make use of the building.
The appellant constructed a shopping mall in occupation by over forty tenants, within two years of allocation in 2008.
It follows therefore that the revocation and reallocation of the said plot of land in favour of the appellant on the same terms and conditions given to the 1st respondent was also in the interest of the pubta, which makes the revocation justified. See Osho Vs Foreign Finance Corporation (1991) 4 NWLR (part 184) 157 and Dantsoho Vs Mohammed (2003) 6 NWLR (part 817) 457
Apart from revocation for overriding public interest, the FCT can revoke the land for failure to observe one of the conditions of the grant to develop within 2 years. Since there is evidence that the 1st respondent did not so develop, the revocation was in order, the issue of overriding interest does not arise.
The argument of the 1st and 2nd respondent's counsel that the withdrawal of allocation to the 1st respondent was in 2004 and notice of revocation was issued in 2005 is immaterial. What is important is for the 1st respondent to be put on notice and was duly put on notice of revocation. As at 2006 when the same plot was allocated to the appellant, the 1st respondent knew that he was dispossessed of his title to the land. So the Notice of Revocation dated 10th May, 2005 signed by Mainasara B. G. Assistant Chief Land Officer, for, The Minister (FCT) issued to Tourist Countryside Resort Ltd (1st respondent) for continued contravention of the terms of development of the Right of Occupancy is in order. The Notice of Revocation is at page 73 of the record.
The 1st respondent cannot complain of breach of the Land Use Act when it is also in breach of the terms as contained in the Certificate of Occupancy which gave rise to its revocation,
It is sufficiently notorious to residents of FCT that infrastructures in Central Business District of FCT are already established.
It is therefore immaterial whether or not judicial notice or the fact was taken that infrastructures in Central Business District FCT, Abuja are established, since the determining outcome of the case is the revocation notice which fact has been established.
Issue 2 is resolved in favour of the appellant against the respondents.
"Whether the 1st and 2nd Respondents are guilty of Estoppel by Conduct''.
The submission of the appellant's counsel on this issue is that even though the 1st and 2nd respondents admitted they were served with the revocation notice dated 10th May, 2005, they folded their arms and watched the appellant (a later allottee) develop the Shopping Mall for over four years without lifting a finger. The court was referred to Yusufu Vs Dada (1990) 4 NWLR (part 146) 657 which is in all fours with this case. Also relying on the case of Adeniran Vs Alao (1992) 2 NWLR (part 223) 350 at 374 paragraphs A-D it is submitted that if a land owner who stood by while a stranger developed his land in good faith, such owner would be estopped from reaping the benefit of such development and the court of equity would not assist him in enforcing his legal rights, Coker Vs Oguntola (1985) 2 NWLR was also referred.
Counsel urged the court to hold that the 1st and 2nd respondents are estopped from laying any claim on plot 1138 and urge the court to resolve the issue in favour of the appellant.
i Counsel to the 1st and 2nd respondents responded that the 1st respondent became aware of the presence of the appellant on the plot sometime in September, 2010. That to come within the principles of estoppel the appellant must have established by evidence that the 1st respondent had knowledge of his adverse possession of the land, and upon perceiving appellants mistake abstained from setting them right and left them to persevere in their mistake. Relying on the case of Temco Eng. And Co. Ltd Vs SEN Ltd (1995) 5 NWLR (part 397) 607 and Nwokobi Vs Udeorah (2012) 4-5 SC, it is submitted that estoppel by conduct is a question of fact. That the appellant is relying on assumptions rather than establishing the fact by evidence. He urged the court to dismiss the appeal.
The general rule as to estoppel by silence or standing by was laid down in Ramsden Vs Dyson (1886) L.R.I.H.L 129 where it was held that "if a stranger begins to build on land supposing it to be his own and the real owner perceiving his mistake abstains from setting him right and leaves him to preserve in his error a court of equity will not afterwards allow the real owner to assert his title to the land". This case was cited with authority by the Supreme Court in Yusuff Vs Dada (supra). Initeni Vs Efamo (2001) 10 NWLR (part 720) 1.
A party who stood by, to allow a stranger to develop his land without lifting a finger to intimate him, he cannot in equity now turn round to claim the land with the development on it. Although the respondents argued that they did not know of the development on the land and cannot be guilty of standing by, the record has shown that they were in fact aware. This is because as at the 10th of April, 2008 when the suit was filed, the respondents were aware that their allocation was revoked by the notice of revocation issued to them in September, 2005. There is no evidence on record that the respondents challenged the FCT for revoking the plot. At any rate is it in keeping with common sense and good faith to abstain from checking a plot of land in such a high-brow district for 2 years? If that was done it shows a complete lack of interest on the plot. It may also show, that was done because the respondents knew that the plot had been revoked and they no longer had any stake.
The respondents slumbered and unreasonably delayed action, only to wake up after development, to reap where they did not sow. Whatever the situation is, their conduct is a clear exhibition of doctrine of standing by.
At any rate by 2005 when they were served with the Revocation Notice the plot in question ceased to be their allocated land and cannot lay any claim to it.
Issue 3 is resolved in favour of the appellant.
The appeal succeeds and it is allowed. The judgment of the trial court delivered on 30th day of November, 2009 in suit No. FCT/HC/GWD/CV/19/2008 is hereby set aside.
A cost of N100,000.00k to the appellant against the respondent.
ABUBAKAR P. YAHAYA. JCA: I have had a pre-view of the leading judgment of my learned brother Hassan JCA just delivered. AH the issues have been well resolved and I agree with the reasoning and conclusion therein, f also allow the appeal and set aside the judgment of the trial court in Suit No.
FCT/HC/GWD/CV/19/2008 delivered on 3/11/09
1 abide by the order as to costs.
JOSEPH E. EKANEM. JCA: I had the privilege of reading in advance the judgment which has just been delivered by my learned brother, Tani Y. Hassan, JCA. I agree with the reasoning and conclusion therein. I abide by the orders made in the judgement.
1. B. J. Akomolafe
2. Miss D. A. Aluko - for Appellants
3. Miss J. Nyam
4. B. C. Ighilo
5. M. O.Ibe - for 1st 2nd Respondents
6. G. C. Okeke
7. J. D. Elogun for 3rd Respondent