CIL RISK ASSET MGT LTD v. GOVT & ORS

CITATION: (2018) LPELR-45865(CA)

In the Court of Appeal In the Ado-Ekiti Judicial Division Holden at Ado-Ekiti

ON WEDNESDAY, 11TH JULY, 2018 Suit No: CA/EK/48/2017

Before Their Lordships:

AHMAD OLAREWAJU BELGORE Justice, Court of Appeal FATIMA OMORO AKINBAMI Justice, Court of Appeal PAUL OBI ELECHI Justice, Court of Appeal

Between

CIL RISK ASSET MANAGEMENT - Appellant(s) LIMITED (2018) LPELR-45865(CA)And 1. EKITI STATE GOVERNMENT 2. MINISTRY OF LANDS, HOUSING AND URBAN DEVELOPMENT, EKITI STATE - Respondent(s) 3. ATTORNEY GENERAL OF EKITI STATE 4. AFE BABALOLA UNIVERSITY

RATIO DECIDENDI 1. LAND LAW - REVOCATION OF RIGHT OF OCCUPANCY: Whether uncontroverted evidence of service of notice of revocation can be held to be sufficient proof of same "On issue 1, the Appellant anchored its case on the issue of service, on it, of the notice of revocation of its Right of Occupancy by the 1st-3rd Respondents. Attempts were made to question the veracity and probative value of Exhibits E, F, And FBA1 attached to the 1st -3rd Respondents' Further and Better Affidavit, which exhibits are the same as Exhibits D, E and F attached to the 4th Respondent's Further and Better Affidavit in support of the Preliminary Objection. It is worthy of note that the two sets of further and better affidavits were not responded to by the Appellant at the lower Court. The Appellant did not raise any issue(s) at the lower Court, relating to the propriety and/or probative value of the said exhibits, and if it did, it was only part of counsel's address which did not constitute evidence. The contention of learned counsel for the Appellant at paragraphs 4.1.10 to 4.1.14 of the Appellant's brief of argument that the documents attached to the two further and better affidavits of the 1st-3rd and the 4th Respondents are of no probative value and a complete after thought remains what it is- "counsel's address". This goes to no issue. Counsel's address cannot constitute evidence and it does not qualify as a response to affidavit evidence. Having failed to file a further counter-affidavit at the lower Court in response to the two further and better affidavits, it is late in the day to raise the issue of the veracity and the probative value of those affidavits before this Court without the leave of the Court first sought and obtained. The two sets of Respondents are on a firm ground when they argued that it is late in the day to now challenge the veracity and probative value of documents attached to their respective further and better affidavits in counsel's address. Given the above scenario, it is my view that the Appellant shot itself in the foot when it failed to repute or challenge, in a further counter affidavit, the weighty allegations, showing by documentary evidence, that he was in fact served with the notice of revocation in December, 2014 as manifest on the face of the further and better affidavits. The law is settled that an affidavit evidence constitutes evidence and it must be so construed. Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted. See OWURU & ANOR V. ADIGWU & ANOR (2017) LPELR-42763 (SC). Per Onnoghen, JSC (as he then was, at page 22. In LONG-JOHN & ORS V. BLAKK & ORS [1998] 6 NWLR (PT. 555) 524, it was held, per IGUH, JSC that- "It is trite law that where facts provable by affidavit evidence are duly deposed to in an affidavit by a party to a suit, his adversary has a duty to controvert those facts in a counter-affidavit if he disputes them, otherwise such facts may be regarded as duly established." The learned trial Judge was right to have found that the Appellant was served with the letter of revocation of its Right of Occupancy in December, 2014, on the basis of Exhibits E, F, and FBA1 attached to the further and better affidavit of the 1st -3rd Respondent, on the one hand; and Exhibits D, E, and F attached to the further and better affidavit of the 4th Respondent. This issue is hereby resolved against the Appellant. By this finding of the learned trial Judge, it naturally follows that the cause of action in this suit accrued on the 22nd day of December, 2014. The Appellant instituted this action in January, 2017, that is, a period of three years after the accrual of the cause of action. By Section 44 of the Land Use Act, the Appellant was entitled to be notified of the revocation of his title to land. That notice was served on the Appellant in December, 2014 as demonstrated by Exhibits E, F, and FBA1 or Exhibits D, E, and F attached to the two further and better affidavits respectively, which were not controverted by the Appellant. To controvert these, the Appellant ought to have deposed to a further counter-affidavit, stating either that the address to which the letter was addressed was not its registered office or that the recipient was not its staff. There was no such denial, not even in the counsel's address, which has been held elsewhere in this judgment as not constituting evidence. ?The duration of a right or cause of action which is conferred on an injured party is necessarily limited and does not last till eternity. It lapses after the date the statute of Limitation proclaims that no such legal action or proceedings may lawfully be taken or commenced by an injured party. It is, therefore, necessary when dealing with statutes of limitation to first determine the precise date the cause of action accrued because time will start to run from the moment the cause of action arose. EBOIGBE V. N. N. P. C. [1994] 5 NWLR (PT. 347) 649 @ 663. Respondents, by uncontroverted further and better affidavit evidence, furnished the lower Court with, not only the notice of revocation, but also proof of service of such notice on the Appellant; as well as the evidence of payment to the courier company that delivered the mail. Refer to paragraph 3 of the 1st-3rd Respondents' further and better affidavit together with the exhibits (documents) attached thereto. The Appellant's Counsel submits that the 1st Respondent purportedly revoked its Right of Occupancy whimsically, bad faith and in flagrant breach of Section 28, 29 and 44 (a) - (e) of the Land Use Act, as well as Section 44 (1) (a) and (b) of the Constitution of the Federal Republic of , 1999 (as amended), in that no notice of revocation whatsoever was served on the Appellant. The learned counsel, for the purpose of the above submission, quotes verbatim from the Land Use Act, Section 28 (1), (4), (6) (7); and Section 44 (a) (b) (c)(d) (e). By reason of the findings by the learned trial Judge, which I hold to be correct, that it is evident that the Appellant was served with the notice of revocation of its Right of Occupancy in December, 2014 and that its cause of action accrued in December, 2014. It is convenient for the learned counsel to quote Section 28 (1) (4) (6) and (7) of the Land Use Act and to surreptitiously leave out Section 28 (5) of the Act. It is Subsection (5) of this Section that empowers the Governor to revoke a right of occupancy on grounds other than for overriding public interest. Section 28 (5) provides as follows:- "(5) The Governor may revoke a statutory right of occupancy on the ground of - (a) a breach of any of the provisions which a certificate is by Section 10 of this Act deemed to contain; (a) a breach of any term contained in the certificateof occupancy or in any special contract made under section 8 of this Act; (b) a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the governor under Section 9 (3) of this Act." Section 44 (a) - (e) is about the service of the notice of revocation. I agree with the learned trial Judge that the provisions of this section have been satisfied since the further and better affidavits to which the documentary evidence of service of the notice of revocation remain uncontroverted. As stated, earlier in this judgment, the Appellant did not respond to the Respondents' further and better affidavits except through the address of its learned counsel which cannot be a substitute for affidavit evidence. Reference by the Appellant to the various cases on the issue of notice of revocation and its service is of no assistance to it. INAKOJU V. ADELEKE (Supra) and a host of other authorities cited to buttress the contention that Courts are bound to enforce the mandatory provisions of a substantive law are of no moment since it has not been demonstrated how or where the lower Court failed to comply with these authorities. The Appellant has also failed to show that the 1st Respondent was in breach of any of the provisions of the Land Use Act. The Appellant is under the canopy of the Supreme Court authority in OSHO V. FOREIGN FINANCE CORPORATION [1991] 4 NWLR (PT.184) 157 at 194 where it was held that- "An acquiring authority cannot rob Peter to pay Paul by depriving one citizen of his interest in property and vesting the same on another." What the Appellant(2018) fails to appreciate is the fact thatLPELR-45865(CA) OSHO'S case (Supra) arose as a result of revocation of a right of occupancy for OVERRIDING PUBLIC INTEREST whereas the instant case arose as a result of revocation for breach of provisions and terms contained in the certificate of occupancy. Whereas the revocation for overriding public interest cannot mean an intention to vest interest in the property/land on another person; a revocation for breach of terms and condition contained in a certificate of occupancy entitles the Governor to re-allocate the same land to another citizen. ?By its own outing, the Appellant pleads in its statement of claim that the reason given for revocation of its title was that he did not comply with the terms and conditions contained in its certificate of occupancy which demands that it should pay ground rent on the 1st day of every year and that within two years of the grant of the right of occupancy, it should complete the development of the land covered by the certificate after the submission of an approved building plan for the purpose for which the certificate was granted. The statement of claim fails to disclose that the ground rents were paid or that it indeed developed the land in accordance with the purpose for which the certificate was granted; or that it ever submitted an approved building plan as demanded by the certificate of occupancy. In the light of the above, the learned trial Judge cannot be faulted when he held that the suit did not disclose a reasonable cause of action. This brings me to the question whether or not the provisions of the Public Officers (Protection) Act, 2004 apply to revocation of land. I have gone through the Supreme Court decisions in MULIMA V. USMAN [2014] 16 NWLR (PT. 1432) 160, 212; A-G., [2013] 3 NWLR (PT. 1340) 123, 150; and others. All the authorities, without exception, relate to where the revocation was based on overriding public interest. I have searched in vain to see the opinion of the apex Court where the revocation is on the ground of breach of terms and conditions contained in a certificate of occupancy as provided by Subsection (5) of Section 28 of the Land Use Act. It is my candid firms view that where the revocation is on the ground of a breach of terms or conditions contained in the certificate of occupancy as it is in the instant case, Public Officers are afforded the protection provided under Section 2 (a) of the Public Officers (Protection) Act, 2014. In view of my holding, that the lower Court was right in finding that the Appellant was served with the notice of revocation of its right of occupancy; that the learned trial Judge was right in holding that the Appellant's statement of claim did not disclose a reasonable cause of action; and that the learned trial Judge was right that the action before him was statute-barred, and despite the grandiosity of the submissions of learned counsel for the Appellant, it will amount to a mere academic exercise for me to proceed to considering all the other issues formulated by the Appellant."Per BELGORE, J.C.A. (Pp. 66-75, Paras. A-F) - read in context AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Ekiti State High Court, Ado-Ekiti Division, contained in the Ruling of Honourable Justice C. I. Akintayo, delivered on the 5th day of June, 2017 in Suit No. HAD/05/2017.

The facts of the case are that the Appellant herein was allocated a piece or parcel of land lying and situate along Ado-Ikare Road, Ado-Ekiti, measuring 26.672 Hectares and more particularly described and delineated in the Survey Plan No. AD0.970 and covered by the Certificate of Occupancy No. DG 00104/2007, registered in the Lands Registry Office, Ado-Ekiti on the 4th day of May, 2012. A Certificate of Occupancy had earlier been granted to the Appellant in the year 2008. This was withdrawn and a new one was issued in 2012 with the term for payment of N691,450.00 Ground Rent in 2008 and N6,668,000.00 for 2012 (See pages 28, 44, and 197 respectively of the record of appeal. (2018) LPELR-45865(CA)

Because the Appellant failed to pay Ground Rents and to develop the land in line with the terms of the C of O as provided in Paragraph 12 (ii) of the C of O, 1st Respondent

1 herein revoked the grant by a Notice of Revocation issued on the 16th day of December, 2014. This Notice was published in Ekiti State Government Official Gazette No. 1, vol. 20 of 20th October, 2016 and subsequently published in the Nigerian Tribune Newspaper of November, 14, 2016 for Public Notice.

It was against this backdrop that the Appellant instituted the action leading to this appeal. In the Writ of Summons and the Statement of Claim, the Appellant sought from the High Court (Now, “Lower Court”) declaratory and injunctive reliefs for unlawful revocation of the Certificate of Occupancy and also challenged the grant of a right of Occupancy (C of O) over the same piece of land to the 4thRespondent herein.

Upon being served with the originating processes, the two sets of Respondents i.e. the 1st -3rd Respondents and the 4th Respondents, separately, filed Memoranda of Conditional(2018) Appearance LPELR-45865(CA) and Notice of Preliminary Objection to the hearing of the Suit. The grounds of objection are that-

(a) The action was statute-barred, and (b) The Suit did not disclose reasonable cause of action.

2 When served with the Preliminary Objections, the Appellant filed a counter affidavit to each of the two preliminary objections. It also filed a Notice of Motion challenging the Preliminary objections on the ground that the Respondents ought to have filed their pleadings from which the objection should have been raised.

The Preliminary Objections and the Motion challenging same were consolidated and heard together. The lower Court delivered its ruling on the 5th day of June, 2017 dismissing the Appellant’s motion and upholding the preliminary objections and consequent thereafter struck out the Suit for disclosing no reasonable cause of action and for the action being statute-barred.

It is against this ruling that his appeal has been brought via an Amended Notice of Appeal filed on the 8th day of September, 2017 and deemed by this Court as having been properly filed and served on the 16th day of January, 2018. The appeal(2018) is predicated LPELR-45865(CA) on Six Grounds of Appeal in the terms hereinafter appearing-

GROUND ONE The learned trial judge erred in law and occasioned a miscarriage of justice when he held that the respondents proved that the appellant was served Notice of Revocation of its Right of Occupancy.

3 PARTICULARS: i. pursuant to Section 44 of the Land Use Act, the requisite notice of revocation shall be effectively and validly served on a holder of the Right of Occupancy, as the appellant herein, in line with Section 44 (a)-(e) of the Act before his title can be revoked, and failure to serve the same render any purported revocation null and void. ii. The Appellant was never served any notice of revocation of its right of occupancy whether by the 1st Respondent, any of its agencies or any of the Respondents. iii. The Appellant only became aware that its Right of Occupancy over the said land had been purportedly revoked vide a publication in the Nigerian Tribune Newspaper of 14th November, 2016. iv. Publication of the notice of revocation in the Gazette without effecting personal service on the Appellant is ineffective to achieve a valid revocation. GROUND(2018) TWO LPELR-45865(CA) The learned trial judge erred in law and occasioned a miscarriage of justice when he held as follows:

“The Claimant/Respondent has not been able to prove that he has paid a dine(sic) as ground rent for any part

4 of the period of the validity of the Certificate of Occupancy before it was revoked. The Claimant/Respondent has also failed to show that he has any plan to develop the land as required in the Certificate of Occupancy by showing that he has drawn up a building plan for the five Star Hotel within two years or at all.”

And thereby struck out the Appellant’s Suit on the ground that the Statement of Claim disclosed no reasonable cause of action.

PARTICULARS i. The Appellant was lawfully allocated the land in dispute, measuring 26.672 Hectares by the 1st Respondent and same is covered by the Certificate of Occupancy No:DG00104/2007, registered as No.67 at Page 67 in volume 68 of the Certificate of Occupancy registered in the Land Registry Office, Ado-Ekiti on the 4th day of May, 2012. ii. Pursuant(2018) to its LPELR-45865(CA) Official Gazette of 20th October, 2016, the 1st Respondent purportedly revoked the appellant’s right of occupancy over the said land, without any notice of revocation served on the Appellant as prescribed by Section 44(a)-(e) of the Land Use Act. iii. By Suit No: HAD/05/2017 filed on 16th January, 2017, the Appellant approached

5 the trial Court to challenge the unlawful revocation of its Right of Occupancy by the 1st Respondent and thereby seek judicial remedy to same. iv. The decision of the learned trial Judge that the Appellant’s Suit disclosed no reasonable cause of action is wrong and same ought to be set aside. GROUND THREE The learned trial Judge erred in law and occasioned a miscarriage of justice when he held that the Appellant’s cause of action occurred on 16th December, 2014 and thereby struck out the Appellant’s Suit for being caught by the limitation period provided in Section 2(a) of Public Officers’ (Protection) Act, 2004.

PARTICULARS i. Notice of the purported revocation of the Appellant’s Right of Occupancy by the 1st Respondent was published in the Nigerian Tribune Newspaper of

14th November, 2016, and the Appellant became aware of the revocation of its Right of Occupancy on the same(2018) day. LPELR-45865(CA) ii. Suit No: HAD/05/2015, between: CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & 3 ORS which culminated in the instant Appeal was filed by the Appellant in the trial Court on the 16th day of January, 2017.

6 iii. The Suit leading to the present Appeal was commenced within a period of (3) three months provided by Section 2(a) of Public Officers’ (Protection) Act, 2004. iv. The decision of the learned trial Judge that the Appellant’s cause of action occurred on the 16th December, 2014 is wrong and same ought to be set aside. GROUND FOUR The learned trial judge erred in law and occasioned a grave miscarriage of justice when in determining the Respondents’ Preliminary Objections, he determined the substantive Suit at an interlocutory stage.

PARTICULARS (1) The dispute to: (i) Payment of ground rent on the land; (ii) Development of the said land; (iii) Service of notice of revocation on the appellant; and (iv) Thedate(2018) on which LPELR-45865(CA) the cause of action occurred. All form the substratum of the Appellant’s case and the real issues for determination in the substantive suit. (2) By making positive pronouncements touching on the substantive issues in the suit while determining the respondents’ preliminary objection at an interlocutory stage, the trial Court pre-judged the real matters when

7 evidence has not been led nor argument marshaled on the substantive suit. (3) It is not part of the trial Court’s function at a preliminary interlocutory stage of litigation to determine the substantive suit or resolve material conflict of affidavit evidence. (4) The trial Court ought to have been circumspect of determining the substantive suit at an interlocutory stage. DECISION ON MOTION NO: HAD/131M/2017 DATED 10/03/2017 AND FILED ON 15/03/2017

GROUND FIVE The learned trial Judge misdirected himself in law and thereby occasioned a miscarriage of justice when he held as follows: -

“The Claimant/Applicant has submitted that Defendant should be made to file their defences and place all the facts before the Court before raising their Preliminary Objection.” And thereby dismissed the appellant’s motion on notice.

PARTICULARS(2018) LPELR-45865(CA) (i) Contrary to the erroneous finding/holden of the learned trial Judge, the Appellant’s contention is not, and the Appellant never submitted in its said motion on notice that the Defendants should be made to file their defences and place all the facts before the Court before raising their Preliminary Objection.

8 (ii) The submission of the Appellant in the said motion on Notice is that the provision of Order 22 Rule 1 of the High Court of Ekiti State (Civil Procedure) Rules, 2011 forbids a defendant from filing preliminary objection unless same is raised in his pleading as point of law. (iii) Consequently, the Appellant contended that by filing their Notices of preliminary objection on the 1st day of February, 2017, rather than raising same as points of law in their pleadings, the Defendants breached the provision of Order 22 Rules 1 & 2 of the High Court of Ekiti (Civil Procedure) Rules, 2011. (iv) The decision of the learned trial judge is perverse and liable to be set aside because it does not represent the content of the Appellant’s contention/submission in its Motion on Notice No: HAD/131M/2017, filed on 15/03/2017. GROUND SIX The learned trial judge erred in law and occasioned a miscarriage(2018) of justice LPELR-45865(CA) when he held as follows:

“It has been laid beyond disputation that where there is a challenge to the Court’s jurisdiction, it is a fundamental and it can be raised

9 at anytime even before filing a defence, there is therefore a difference between a demurer proceeding and an objection to the Court’s jurisdiction. To this end, the objection of the Claimant/Applicant to the Preliminary Objection of the Defendants lacks merit and it is hereby dismissed.” PARTICULARS (i) The provision of Order 22 Rules 1 & 2 of the High Court of Ekiti State (Civil Procedure) Rules, 2011, is abundantly clear that no demurer shall be allowed and any party shall be entitled to raise by his pleading any point of law any points so raised shall be disposed of by the judge who tries the cause at or after the trial. (ii) The effect of Order 22 Rules 1 & 2 of the High Court of Ekiti State (Civil Procedure) Rules, 2011 is that the said High Court Rules recognizesonly proceedings in lieu of demurer in which a defendant wishing to challenge the competence of a Suit by a preliminary(2018) objection LPELR-45865(CA) on a point of law, is required to file a statement of defence and raise the point of law in it. (iii) In the instant case,the 1st -3rd and 4th Respondents raised their objections by Notice of Preliminary Objection, instead of

10 raising or including same in their Statement of Defence. (iv) By failing to raise their preliminary objections by their pleadings, the respondents adopted a fundamentally wrong procedure and the trial Court ought to have dismissed the aforementioned preliminary objection for amounting to demurer, which has long been abolished.

Parties filed and exchanged their respective briefs of argument. In the Appellant’s brief, settled by Chief Robert Clarke, SAN, Six issues are distilled for determination, namely-

1. Whether the learned trial Judge was right when he held that the Respondent proved that the Appellant was served Notice of Revocation of its right of Occupancy. (Distilled from Ground 1 of the Amended Notice of Appeal). 2. Whether the trial Court was right when it held that the Appellant’s(2018) case LPELR-45865(CA) disclosed no reasonable cause of action. Distilled from Ground 2 of the Amended Notice of Appeal). 3. Whether the learned trial Judge was right when he held that the Appellant’s cause of action accrued on 16/12/2014 and thereby struck out the Appellant’s case for being caught by the limitation period provided in

11 Section 2 (a) of Public Officers (Protection) Act, 2004. Distilled from Ground 3 of the Amended Notice of Appeal). 4. Whether in determining the Respondents’ Preliminary Objections, the trial Court did not determine and prejudge the substantive Suit at an interlocutory stage. Distilled from Ground 4 of the Amended Notice of Appeal). 5. Whether the learned trial Judge was right when he held that the Appellant’s submission in its Motion on Notice filed on 15/03/2017 is to the effect that the Respondents should be made to file their defences and place all the facts before the Court before raising their respective Preliminary Objections. Distilled from Ground 5 of the Amended Notice of Appeal). 6. Whether the learned trial Judge was right when he held that there is a difference between a Demurer proceeding and an objection to the Court’s jurisdiction, and that such objection can be raised even before(2018) filing aLPELR-45865(CA) defence. Distilled from Ground 6 of the Amended Notice of Appeal).

In the 1st-3rd Respondents’ brief settled by Olalekan Olatawura Esq., the issue formulated by the Appellant are adopted.

12 In the 4th Respondent’s brief,settled by Oluwasina Ogungbade, four (4) issues are formulated for determination- a. Whether the learned trial Judge was not correct in finding that in view of the pleadings of the Appellant before the Trial Court, the Appellant failed to disclose a reasonable cause of action (Ground 2 of the Notice of Appeal). b. Whether the Learned Trial Judge was not right when he held that the Appellant’s case was statute- barred regard being had to the undefeated evidence of service of the notice of revocation on the Appellant (Grounds 1 and 3 of the Notice of Appeal). c. Whether the Learned Trial Judge’s reliance on affidavit evidence in coming to factual conclusions at an interlocutory stage violated the judicial restriction against determining substantive matters at an interlocutory stage. (Ground 4 of the Notice of Appeal). d. Whether(2018) the Learned LPELR-45865(CA) Trial Judge misapprehended the purport of the Appellant’s contention in the motion filed on the 15th of March, 2017 and if so, whether the said misapprehension occasioned a miscarriage of justice in view of the settled position regarding the difference between a demurer and a preliminary

13 objection to the jurisdiction of the Court (Grounds of 5 and 6 of the Notice of Appeal).

Issues 1 and 3 are argued together by the Appellant. He argued as follows:- It is submitted that the case of the Appellant is that its Right of Occupancy which was lawfully allocated to it was unlawfully revoked by the 1st Respondent without compliance with the mandatory legal requirement of Notice in line with Section 44 (1) (a)-(e) of the Land Use Act. It is also contended that the only materials to which the Respondents hold so dear, in their evasive attempts to establish that notice of revocation was served on it are Exhibits E, F and FB A1, i.e. notice of revocation, currier service receipt, and EMS Speedpost Delivery form attached to the Affidavit and further and Better Affidavit in support of the 1st -3rd Respondents’ Notice of Preliminary Objection, which are the same with Exhibits D, E, and F attached to the Affidavit and Further and Better Affidavit in support (2018)of the 4th LPELR-45865(CA) Respondent’s Notice of Preliminary Objection.

Attention is drawn to paragraphs 24, 25, 26, 27, and 28 of the Statement of Claim at pages that Exhibits E, F, and FB

14 A1 or Exhibits D, E and F were never served on the Appellant and are non-existent and complete afterthought. It is argued that the stated exhibits were infected by falsehood in that they were allegedly served on the Appellant in 2014 but the 1st Respondent did not revoke the C of O until in 2016 on the basis of those exhibits when Exhibit D of the 4th Respondent which is the same with Exhibit E of the 1st -3rd Respondents neither bears the Letterhead of the 2nd Respondent from whom it purported to have proceeded nor shown to have been signed by any officer in the 2nd Respondent’s Ministry. Attention is also drawn to what is termed as irreconcilable discrepancy and conflict between Exhibits B and C as proceeding from the same source. It is also contended that Exhibits F and FB A1 of the 1st -3rd Respondent and Exhibit F of the 4th Respondents show the desperation of the Respondents to prove that Notice of Revocation was served on the Appellant. It is argued that the Notice was never served on the Appellant. (2018) LPELR-45865(CA)

In view of the foregoing, it is submitted that there was the need for the lower Court to force oral evidence instead of resolving the averments in the

15 various affidavit in limini. Reliance is placed on

OGBONNAYA & ORS V. ADAPALM NIGERIA LTD (1993) LPELR-2288 (SC); and BAKARE V. BAKARE [2012] 16 NWLR 20 @ 49-50. It is submitted that the law does not encourage that a Court of law be turned to a blacksmith’s workshop where evidence is manufactured by means so sinister. Sections 28 (1) (4)(6) (7) and 44 (a) – (e) of the Land Use Act are quoted verbatim. Reliance is also placed on NIGERIAN ENGINEERING WORKS LTD V.

DENAP LTD [2001] 18 NWLR (PT. 746) 741; THE ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA V. EKE SPIFF [2009] 1 NWLR (PT. 800) 114; ONONUJU V. A –G [1998] 11 NWLR (PT. 573) 305 @ 320-322; INAKOJU V. ADELEKE [2007] 4 NWLR (PT. 1025) 423; MAKO V. UMOH [2010] 8 NWLR (PT. 1195) 82 @ 107-108. It is submitted that where a law provides for the procedure for doing a thing, no other method should be employed in doing it, citing in support,NWOKORO V.

ONUMA(2018) [1990] LPELR-45865(CA) 3 NWLR (PT. 136) 22 @ 32; OKPALAUZUEGBU V. EZEMENARI [2011] 14 NWLR (PT. 1268) 492 @ 524-525; APAPA V. INEC [2012] 8 NWLR (PT. 1303) 409 @ 431; GALAUDU V. KAMBA [2004] 15 NWLR (PT. 895) 31; ABUBAKAR V. NASAMU

16 (No. 2) [2012] 17 NWLR (PT. 1330) 407 @ 590; C. S. S. BOOKSHOPS LTD V. R. T. M. C. R. S. (2006) LPELR– 824(SC); and others. It is contended that notice of revocation must be proved to have come to the holder of the Right of Occupancy. Learned Senior Counsel for the

Appellant relies on OLATUNJI V. MILITARY GOVERNOR

OF [1995] 5 NWLR (PT. 397) 586; A - G, BENDEL STATE V. AIDEYAN [1989] 4 NWLR (PT. 118) 646; A - G V. SOWANDE [1992] 8 NWLR (PT. 261) 587 @ 601-602.

It is submitted that it was wrong to have revoked the Appellant’s Right of Occupancy without notice and to reallocate same to the 4th Respondent. Reliance is placed on ORIANZI V. A-G, RIVERS STATE [2017] 6 NWLR

(PT. 1561) 224 @ 272; and OSHO V. FOREIGN FINANCE CORPORATION [1991] 4 NWLR (PT. 184) 157 @ 194.

On issue(2018) 3, the AppellantLPELR-45865(CA) adopts and relies on the submissions proffered on issue 1 in respect of which the Court is urged to resolve in favour of the Appellant. ​ It is submitted that the Appellant having become aware of the revocation of its Right of Occupancy vide a publication in the Nigerian Tribune Newspaper of 14th November, 2016 after the actual revocation

17 had been carried out by the 1st Respondent pursuant to its Official Gazette of 20th October, 2016, its cause of action accrued on the 14th day of November, 2016 when it became aware of the revocation. It is therefore, submitted that the Suit No. HAD/05/2017 filed on the 16th day of January, 2017 challenging the revocation and, culminating in the instant appeal is not caught by the provision of Section 2 (a) of Public Officer (Protection) Act, 2004 and is not statute-barred. It is submitted that the Act does not apply to this case and does not avail any of the Respondents herein, in that the Appellant commenced the action within 3 months, reckoned from 14th November, 2016 when its cause of action accrued. Reliance is placed on EGBE V. ADEFARASIN [1987] 1 NWLR (PT. 47) 1 @

20; WOHEREM V. EMEREUWA (2004) 6-7 SC 161; SAVANNAH BANK OF NIGERIA LTD V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCY LTD.

[1987] 1 NWLR (PT.49) 212; ARAKA V. EJEAGWU [2000] 15 NWLR (PT. 692) 684; IBRAHIM V. JUDICIAL(2018) SERVICE LPELR-45865(CA) COMMISSION [1998] 14 NWLR (PT. 584)1; MILITARY ADMINISTRATOR, EKITI STATE V. ALADEYELU [2007] 14 NWLR (PT.1055) 619; etc.

18 It is submitted, in the light of the foregoing authorities, that the law is trite that time begins to run for the purpose of limitation law when the cause of action arose, which is when the plaintiff becomes aware that his legal right has been breached by the defendant, citing the Supreme Court authority in MICHAEL AROWOLO V. IFABIYI [2002] 4

NWLR (PT. 757) 356 @ 383; BULL COAL MINING CO. V. OSBORNE (1989) A. C. 351 @ 363; and FAROLY ESTABLISHMENT V. N. N. P. C. [2011] 5 NWLR (PT. 1241) 457. It is contended that the Suit was not statute- barred.

Assuming, but without conceding, that the Suit was caught by the three months limitation period provided by Section 2 (a) of the Public Officer (Protection) Act, 2004, the Act is inapplicable to the instant case, in that an action founded on land is an exception to the applicability of that provision.

It is submitted that the Suit leading to this appeal is an action founded(2018) on contract, LPELR-45865(CA) in that the land allocated to the Appellant by the 1st and 2nd Respondents in consideration of the sum of N54,000,000.00 (Fifty Four Million Naira) only paid by the Appellant is a contractual arrangement between the parties.

19 It is also submitted that the Certificate of Occupancy issued by the 1st Respondent to the Appellant in 2012 contains terms and conditions which create a binding contract between the Appellant and the 1st Respondent and, as such, the applicable Limitation Law is Section 4(1) of the Limitation Law of Ekiti State. Reliance is placed on

TAJUDEEN V. C. I. P. S. B. [2010] 4 NWLR (PT. 1184) 325 @ 339: GOVERNMENT V. DALAMI NIGERIA LTD [2007] LPELR (SC); NIGERIAN PORT AUTHORITY V. CONSTRUCTION GENERAL FARSURA COGEFAR SPA & ANOR (1974) 1 ALL NLR (PT.2) 463; and ENERGY MARINE AND INDUSTRIAL LTD. V. MINISTER OF THE FEDERAL CAPITAL TERRITORY & ANOR (2010) LPELR- 19774 (CA). It is submitted that by the foregoing authorities, the Suit was not by any stretch of imagination, statute-barred. ​ It is submitted that the revocation was actuated by malice and bad faith both of which render the provisions of Section (2018)2(a) of the LPELR-45865(CA)Public Officer (Protection) Act, 2004 inapplicable, citing HASSAN V. ALIYU [2010] 17 NWLR

(PT. 1223) 547 @ 589; OFFOBOCHE V. OGOJA LOCAL GOVERNMENT [2001] 17 NWLR (PT. 739) 458 @ 485; MUHAMMED V. A. B. U. ZARIA [2014] 7 NWLR (PT.

1402) 500 @ 534; and A-G RIVERS STATE V. A-G BAYELSA

20 STATE [2013] 3 NWLR (PT. 1340) 123 @ 148. It is then urged that issue 1 and 3 be resolved in favour of the Appellant.

With regard to issue 2, it is submitted that the Suit leading to this appeal, as constituted in the Writ of Summons and the Statement of Claim filed on 16/01/2017 disclosed a reasonable cause of action upon which the lower Court can adjudicate. It is contended that the Supreme Court defined the term “reasonable cause of action” inRINCO

CONSTRUCTION CO. V. VEEPEE IND. LTD [2005] 9 NWLR (PT. 929) 85 @ 96. Section 44(1) (a) and (b) of the Constitution of the Federal Republic of Nigeria is quoted. It is, therefore, submitted that the Suit disclosed a reasonable cause of action upon which the lower Court can adjudicate pursuant to the combined provision of Section 44(1) (a) and (b) and Section 272(1) of the Constitution of the Federal Republic of Nigeria, as amended (Now referred to hereinafter as “The Constitution”). ​ (2018) LPELR-45865(CA) It is contended that the 1st Respondent based the computation of the Ground Rent payable granted to the Appellant in 2008 instead of the Certificate Occupancy re- issued to it in 2012.

21 He describes the C of O of 2008 as “Old and Spent”. It is submitted that the drawn and unlawful manner in which the 1st Respondent purportedly revoked its Right of Occupancy in fact, constitutes the bedrock and pillar upon which the Appellant’s case rests, and from which a reasonable cause of action eminently emerged. Reference is made to paragraphs 25, 26, 27, 28 and 35 of the Statement of Claim at pages 13-17 of the record of appeal. It is argued that the 2nd Respondent’s letter of 25th July, 2007 is inapplicable to this case as the said letter relates to the old and spent Certificate of Occupancy of 2007 and does not relate at all to the extant Certificate of Occupancy issued to the Appellant in 2012, which does not contain any such condition as “fencing and clearing only of the allocated land is not regarded as development”. It is submitted that expression uniusest exclusion alterious (express mention of one thing excludes other things not mentioned), citing NECO V. TAKODE [2011] 5 NWLR

(PT. 1239) 45 @ 69; and OGBUNYINYA V. OKUDO (1979)(2018) 6-9 SC 32.LPELR-45865(CA)It is stated that the Appellant commenced development of the land in dispute by erecting a

22 completed fence on same. Reference is made to the legal definition of the word “development” at page 482 of the Black’s Law Dictionary, Eight Edition and Section 51 of the Land Use Act which define “developed land”. Reference is also made to DAPIANLONG V. DARIYE [2007] 8 NWLR

(PT. 1036) 332 where the Supreme Court held that-

“Where words or expressions in the provisions of a statute have been legally or judicially defined or determined, their ordinary meanings will definitely give way to their legally or judicially defined meanings. See also ACME BUILDERS V. K. S. W. B. (1999) 2 NWLR (PT.590) 288."

Premised on the foregoing, it is submitted that Suit No. HAD/05/2017 disclosed a reasonable cause of action and the Court is urged to so hold and to resolve this issue in favour of the Appellant.

On issue 4, the Court is invited to page 1034 of the record of appeal(2018) where the lowerLPELR-45865(CA) Court held that-

“It is important to point out that the Defendant/Applicant has been able to prove that Claimant/Respondent was served with Notice of Revocation despite its denial of same.

23 The Claimant/Respondent has not been able to prove that he (sic) has paid a dine (sic) as ground rent for any part of the period of the validity of Certificate of Occupancy before it was revoked. The Claimant/Respondent has also failed to show that he (sic) has any plan to develop the land as required in the Certificate of Occupancy by showing that he (sic) has drawn up a building plan for the Five Star Hotel within two years or at all. All these point to no other conclusion that (sic) that the Claimant/Respondent has no reasonable cause of action disclosed by his (sic) Statement of Claim. From all indication, the Claimant/Respondent action is incompetent. Application succeeds. The Claimants’ claim is hereby struck out for lack of competence."

It is then submitted that the lower Court has, by these pronouncements, determined and prejudged the issues to be tried in the substantive action in the course of the consideration(2018) of an LPELR-45865(CA) interlocutory matter. It is submitted that it is wrong for the learned trial Judge to have resolved conflicts in the various affidavits of parties at the interlocutory stage without hearing oral evidence and arguments and submissions of counsel.

24 Reliance is placed on ONYESOH V. NNEBEDUN (1992)

3 SCNJ 420; BAKARE V. BAKARE [2012] 16 NWLR (PT.29) @ 49-50; NGERIAN CIVIL SERVICE UNION V. ESSIEN [1985] 3 NWLR (PT.12) 306 @ 316; AMERICAN CYANAMID CO. V. ETHICON LTD (1975) 1 ALL E.R. 504 @ 510; EBEBI & ORS V. DENWIGWE & ORS (2011) LPELR -4909 (CA); SUSSEX JUSTICES, EX PARTE McCARTY (1924) 1 KB 256 @ 259; NDABA (NIG.) LTD V. UBN PLC [2007] 9 NWLR (PT. 1040) 439 @ 469; OGBONNAYA V. ADAPALM NIGERIA LTD (1993) LPELR-2288 (SC); etc. It is submitted that issues in respect of which the lower Court made positive pronouncement at the interlocutory stage are the issues for trial of the substantive action. The Court is urged to resolve issue 4 in favour of the Appellant. ​ Issues 5 and 6 are argued together by the Appellant. The

Appellant argues that it was not its contention that the learned trial Judge should make the Respondents to file the pleadings(2018) and raise LPELR-45865(CA)any points of law therein before filing their Notices of Preliminary Objection. Rather, it is argued, that the stand submissions of the Appellant was that the filing of the preliminary objection before filing the defence was in breach of Order

25 22, Rule 1 of the Ekiti State High Court (Civil Procedure) Rules, 2011 which forbids a defendant from filing preliminary objection unless same is raised in his pleadings as points of law. It is submitted that the Respondents breached the provision of Order 22, Rules 1 and 2 of the High Court (Civil Procedure) Rules, 2011 by filing their Notice of Preliminary Objection, rather than raising same as points of law in their pleadings. To this end, it is submitted that the learned trial Judge misapprehended the purpose of the Motion on Notice filed by the Appellant challenging the Notice of Preliminary Objection filed by the Respondents at the lower Court. Reliance is placed on

UDENGWU V. UZUEGBU [2003] 13 NWLR (PT. 836) 136; WILLIAMS & ANORS V. OGUNDIPE & ORS (2006) LPELR-7593 (CA); and UKATTA V. NDINAEZE [1997] 4 NWLR (PT.499) 251. The Court is urged to resolve issue 5 in favour of the Appellant, and to set aside the lower Court’s decision in this regard.

On issue(2018) 6, it is submitted, LPELR-45865(CA) for the Appellant, that the procedure adopted by the Respondents in filing their Notice of Preliminary Objection in the lower Court is in gross violation of the

26 provisions of Order 22, Rules 1 and 2 of the Ekiti State High Court (Civil Procedure) Rules, 2011, which forbid demurrer and provide for proceedings in lieu of demurer. It is submitted that the procedure adopted by the Respondent in raising preliminary objection amounted to a demurer which has been abolished, citing BAMISILE V. OSASUYI

[2007] 9 NWLR (PT. 1042) 225; LASISI FADARE V. OYO STATE (1982) 4 SC 1 @ 4, 7-8; IDACHABA V. ILONA [2007] 6 NWLR (PT.1030) 277 @ 297- 298; TAOFIK DISU V. AJILOWURA [2006] 14 NWLR (PT.100) 783 @ 805-808. It is submitted that the provisions of the various Rules of the different High Courts considered in all the authorities cited here above are in pari material with the provisions of Order 22, Rules 1 and 2 of the Ekiti State High Court (Civil Procedure) Rule, 2011.

This Court is urged to resolve all the issues in favour of the

Appellant and to allow the appeal.

I stated(2018) earlier inLPELR-45865(CA) this judgment that the 1st -3rd Respondents adopt the 6 issues formulated by the Appellant.

It is submitted by learned counsel for the 1st -3rd Respondents that the Appellant required leave of this Court to raise the issue of probative value

27 of Exhibits F and FBA1 which are the notice of revocation and receipt for payment of dispatch of the notice of revocation as well as the proof of delivery attached to the 1st -3rd Respondents’ Further and Better Affidavit, to which the Appellant did not respond at the lower Court. Referring to paragraph 4.1.16 of the Appellants brief, it is submitted that I agree with the submission of learned counsel for the 4th Respondent to the effect that the law has been settled to a point of notoriety that address of counsel cannot take the place of evidence. See ORERE V.

ORERE (2017) LPELR-42160 (CA); and IBIKUNLE V. THE STATE (2007) LPELR-8068 (SC); and ADEBAYO V. OKEYA (2015) LPELR -40095 (CA). It is contended that the Appellant has argued in extenso, challenging the veracity of the Exhibit F, either on the grounds that the receipt is a fictitious receipt, or that the stamp on Exhibit FBA1, the proof of delivery, is dated 1st March, 2017, 1 month and 13 clear days after the date the action was instituted, as contended by the Appellant in paragraph 4.1.10 of(2018) its brief ofLPELR-45865(CA) argument. It is submitted that the proper thing for the Appellant to do was to file an

28 affidavit denying that the place where the letter was delivered was not its registered place of business and that no person with the name Bukola works in that office. The Appellant chose not to respond to the Further and Better Affidavit to which these documents were attached. It is also argued that contrary to the invidious appraisal given to Exhibits F and FBA1, if the Appellant’s counsel had carefully scrutinised the said Exhibit, the stamp and the date stated therein as 1st March, 2017, he would have known that it was the date the documents were certified. This Court is urged to discountenance all the Appellant’s arguments thereon.

It is submitted that, contrary to the contention of the Appellant that the learned trial Judge by making positive pronouncement prejudged the real issues in controversy and that same cannot stand, the issue raised in the preliminary objection being an issue of jurisdiction can be determined on affidavit evidence if same can terminate the proceedings(2018) in limine, LPELR-45865(CA) citingA-G. V.

OLAWALE [1993] 1 NWLR (PT. 272) 645 @ 663-664; and ONIBUDO V. AKIBU (1982) ALL BLR 207 @ 241.

29 It is submitted that the Appellant had every opportunity to controvert the averments contained in the Further and Better Affidavit of Joachim B. Ojo to which were attached the documents alleged by the Appellant to be of doubtful probative value, instead, it chose to rely on the address of counsel to do same, which is no substitute for evidence. Reliance is placed on the Supreme Court authority in

OKWEJIMINOR V. GBAKEJI (2008) LPELR-2537 (SC) where it was held per Muhammad, JSC that-

“No matter how brilliant the address of counsel is, it cannot be a substitute for pleadings or evidence."

It is submitted that, in the circumstance, the averments of issuance of notice of revocation, Exhibit F, and service of same Exhibit FBA1, are deemed admitted in Law, and the learned trial Judge acted within the ambits of the law to have relied on them to hold that the Appellant’s suit disclosed no reasonable cause of action, and, afortiori, statute-barred by virtue of Section 2 (a) of the Public Officers(2018) (Protection) LPELR-45865(CA) Act. Reliance is placed on

NJOEMANA V. UGBOMA (2014) LPELR-2242 (CA); and MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR V. EXPO SHIPPING LINES NIG. LTD (2010) 5

30 SCM 111 @ 130. It is submitted that by this admission by the Appellant, the 1st-3rd Respondents did not only establish but proved that the Appellant’s Certificate of Occupancy was validly and legally revoked in accordance with the provisions of the Land Use Act, and, therefore, the learned trial Judge was right when he held at page 52 of his Judgment contained at page 1034 of the record thus:-

“It is important to point out that the Defendant/Applicant has been able to prove that the Claimant/Respondent was served with notice of revocation despite its denial."

It is further submitted that the contention of the Appellant that the 1st Respondent acted in bad faith and in flagrant breach of the provisions of Sections 28, 29 and 44 of the Land Use Act in revoking its Right of Occupancy, is not only fallacious and unsubstantiated but the same is contrary to the Appellant’s pleadings and ludicrous. Reference is made to FABIYI V. THE STATE (2013) LPELR- 21180 (CA) where this(2018) Court defined LPELR-45865(CA) the word “Malice”. It is argued that it is evidence from Exhibit E, the notice of revocation, that the Right of Occupancy granted to the

31 Appellant was revoked for failure to develop the land within 2 years as unequivocally state in the Notice of Revocation at page 170 of the record of appeal. It is submitted that the Appellant by its own admissions in paragraphs 17 and 18 of the statement of claim, had admitted that it was issued with a Certificate of Occupancy in 2012. It is submitted that Section 28(5) of the Land Use Act, which the Appellant deliberately left out in its brief, confer on the State Governor the right to revoke a Certificate of Occupancy on the grounds of breach of any of the terms and conditions contained in the said Certificate of Occupancy. It is stated that paragraphs 1 and 4 of the Certificate of Occupancy issued to the Appellant reads thus:

“1. To pay in advance without demand to the Government of Ekiti State (hereinafter referred to as the Governor) or any other office appointed by the Governor. a. The reversed annual ground rent of N6,668,000.00 from the 1st day of January of each year. b. Such(2018) revised ground LPELR-45865(CA) rent as the Government may from time to time prescribed. c. Such ground rent as the Governor may from time to time impose.

32 2. …… 3. …… 4. Within two years from the date of the commencement of the Right of Occupancy to erect and complete on the land, buildings and other specified in related plans approved by the Ministry of Land and Regional Planning and any other Agency empowered to do so.

It is submitted that the Appellant, by paragraph 30 of the statement of claim, admitted that it did not pay ground rent in 2011 and asked for a waiver, but it made a volte face summer-sault in the since paragraph 30 by saying that it was not entitled to pay ground rent said its operation commenced in 2011. It is submitted, if the Appellant was not entitled to pay ground rent between 2007 to 2011, which is not conceded; it was obligated to pay from 2012 to 2014 when its Certificate of Occupancy was revoked, and for that reason, the action of the 1st – 3rd (2018) LPELR-45865(CA)

33 Respondent in revoking the Appellant’s Right of Occupancy was legal in the circumstance as and cannot be correctly argued to be premised on bad faith, malice or howsoever. It is further submitted that a person who acts within the confines of powers inuring and donated to him under a statute cannot be said to have acted in bad faith or with malice, particularly in the instant case when the Appellant has shown that it failed to pay ground rents and has failed to develop the land within two (2) years stipulated in the Certificate of Occupancy granted to it. Reliance is placed on HASSAN V. ALIYU (2010) LPELR-1357 (SC). It is submitted, for the 1st -3rd Respondents, that the Appellant misapplied the principles enunciated in A-G., RIVERS

STATE V. A-G., [2013] 3 NWLR (PT. 1340) 123 and MULIMA V. USMAN [2014] 16 NWLR (PT.1430) 160. Distinction is drawn between a Public Office/Officer in his role as an instrumentality of the state/command authority. It is submitted that in respect to land disputes in particular, there is a difference between a Public Office/Officer(2018) LPELR-45865(CA)as a landholder/occupier and a Public Office/Officer in its role as a land

34 overseer/trustee. It is submitted that the effect of the difference is that in its role as a landholder/occupier, the Public Officer will not be allowed to employ the use of the provisions of Public Officer (Protection) Act to confer title to land (a commonwealth of Nigerians) on himself or another. However, where the Public Officer merely plays this role as Trustee of Land and that role is challenged, the provision of Public Officer (Protection) Act will apply, and this distinction easily explains the decisions of the Supreme

Court both in A-G., RIVERS STATE (Supra) and

MULIMA (Supra). In A-G RIVERS, the defendant was Bayelsa State Government in its role as the occupier of all that land on which the Soku Oil Field were situated. In MULIMA, the action at the trial Court was principally against private parties (Zannah Mustapha and Alhaji Buka Mulina) jostling for competing right to land under private law. The Attorney General and the State

Commissioner for land and Survey were only joined as nominal 3rd and 4th Defendants so that the plaintiffs could set aside(2018) the issuance LPELR-45865(CA) of a Certificate of Occupancy to the deceased Mai Kyari in whose name the

35 Certificate had been improperly obtained 7 years after his death. It is argued that, indeed, in that Suit, there was no allegation of revocation against the 3rd and 4th Defendants. It is contended that the implication of the above is that, in both cases, the complaint was not against the Public Office/Officer as a trustee of land; rather, each case was a dispute in private law between competing asserters of right to land. It is finally submitted that the revocation of the Appellant’s title took effect on the 22nd day of December, 2014 and in view of the filing of the action herein in January, 2017, the Suit failed to be brought timeously within the 3-month window allowed by the Public Officers (Protection) Act, 2004 and accordingly, the Suit was statute-barred and was rightly struck out by the trial Court. We are urged to so hold and to resolve the issues against the Appellant. Issues 3 and 4 are also argued together by the 1st-3rd Respondents. ​ It is submitted(2018) that LPELR-45865(CA) the learned trial Judge was right to have made positive pronouncements touching on the substantive suit at interlocutory stage because, the issues involved in the Preliminary

36 Objection are those of the competence of the Suit and the jurisdiction of the lower Court to hear and determine the case. The 1st-3rd Respondents have challenged the Appellant’s suit on the ground that it did not disclose reasonable cause of action against the 1st-3rd Respondents and as such, the lower Court had no jurisdiction to entertain it. On the meaning of “cause of action” and

“reasonable cause of action”, reliance is placed on FIRST

BANK OF NIGERIA PLC & ORS V. A-G., FEDERATION & ORS (2013) LPELR-20152 (CA); SHELL PETROLEUM DEVELOPMENT COMPANY LTD & ANOR V. X.M FEDERAL LTD & ANOR (2006) LPELR-3047 (SC) which affirmed the decision of the

Court in both AMODU V. DR. AMODE & KWARA STATE

COLLEGE OF TECHNOLOGY [1990] 5 NWLR (PT.150) 356; and OSHOBOJA V. AMUDA & ORS [1992] 6 NWLR (PT. 250) 690. It is submitted that the law is settled that cause of action touches on the jurisdiction of a Court to hear and determine any matter pending before it. The contention(2018) of LPELR-45865(CA) the 1st-3rd Respondents that the Appellant’s claims disclosed no reasonable cause of action was a jurisdictional issue which can be raised at any stage and when raised, must

37 be resolved first by the Court one way or the other before proceeding to either hear the substantive action or strike same out. It is also submitted that it trite that in order to determine whether a Court before which a matter is pending has the jurisdiction to entertain same, the Court has to look, only at the statement of claim before it and not the defence put forward by the defendant. Reliance is placed on AMAECHI V. GOVERNOR OF RIVERS STATE

& ORS (2017) LPELR-43065 (CA). OLOFU V. ITODO (2010) LPELR-2585 (SC); and INAKOJU V. ADELEKE [2007] 4 NWLR (PT. 1020) 427 @ 588-589.

It is submitted that the lower Court could not have conveniently resolved the issue of jurisdiction as raised by the 1st-3rd Respondents which is the substratum of the 1st -3rd Respondents Preliminary Objection without examining the facts contained in the Appellant’s Statement of Claim and making appropriate findings in relation to whether the Appellant’s Statement of Claim disclosed facts that can sustain (2018)the action LPELR-45865(CA)since it is the Appellant’s case that determines the jurisdiction of the Court, notwithstanding that such findings many touch on the substance ofthe matter at the interlocutory stage.

38 It is submitted that failure by the Appellant to plead having fulfilled the condition of grant of the Certificate of Occupancy to it, such as payment of the required ground rents, development of the land within two years of the grant, or even showing development of the land based on an approve building plantantamounts to the fact that its suit has not disclosed a reasonable cause of action. Failure to plead these necessary facts shows that the action has no chances of success. It is further submitted that the Appellant from its own showing in paragraphs 29-31 of the statement of Claim, tacitly admitted to have breached the conditions of the grant by not developing the land and default in payment of ground rent, at pages 13-15 of the record of appeal. It is submitted that the contentions of the Appellant that a judge should avoid making pronouncements touching on the substantive suit at the interlocutory stage and the authorities relied in support thereof are not applicable and did not arise in the instant case. It is submitted that a careful consideration of all the cases cited(2018) by the Appellant LPELR-45865(CA) in

39 paragraphs 4.3.5-4.3.10 of its brief of argument will show that the interlocutory application involved in those cases are in relation to injunctions in matter which the Court has the requisite jurisdiction to hear and determine. It is also submitted that in the instant case, the notice of Preliminary Objection of the 1st-3rd Respondents was challenging the competence of the Appellant’s action and the jurisdiction of the lower Court to hear and determine same and to this end, the principle relied upon by the Appellant is not applicable in this case and the cases cited are distinguishable. Reliance is placed on the authority of the

Supreme Court in UDO V. THE STATE (2010) LPELR

-40710 (SC), in submitting that a case is an authority for what it decides and that it must be borne in mind that the decision of a Court must always be considered in light of its own peculiar facts and circumstance because no case is identical to another, though they may be similar.

​ It is, therefore, submitted that the learned trial Judge was in order(2018) when he rightlyLPELR-45865(CA) found and concluded that the Appellant has no reasonable cause of action, after examining the relevant facts or set of facts

40 as contained in the Appellant’s statement of clam, though touching on the substance of the suit but being a jurisdictional issue consequently struck out the Appellant’s action.

As to the issue that parties joined issues and that the facts deposed to in the parties affidavit are materially in conflict which cannot be resolved in the absence of oral evidence led by the parties, it is submitted, for the 1st -3rd Respondents, that the issues raised by the 1st-3rd Respondents in the Preliminary Objection and the affidavit in support thereof are issues of jurisdiction and same can be conveniently determined in limine by affidavit evidence without the Court calling for oral evidence, citing

EZECHUKWU & ANR. v. V. I. O. C. ONWUKA, Suit No. SC/190/2005 delivery on the 22nd of January, 2016, on the meaning of word “Conflict”. It is then submitted that there are no violent disagreements/conflicts in the averments of the parties in their respective affidavits. ​ (2018) LPELR-45865(CA) It is submitted that the 1st-3rd Respondents in their affidavit in support of their Preliminary Objection deposed that the Appellant breached the conditions of the grant for failure

41 to develop the land in dispute within two years as stipulated by the Certificate of Occupancy or submit the necessary approved building Plan, and the non-payment of ground rent. The Appellant, in its counter affidavit did not dispute the above facts by showing that it paid a ground rent, developed the land or obtained an approve building plan in respect of the land in dispute.

It is contended that the 1st -3rd Respondent also deposed to a further and better affidavit wherein evidence of service of notice of revocation was exhibited which the Appellant did not controvert at the trial Court by filing a further counter affidavit to that effect. Reference is made to page 159,160,855-859 and 868 of the record of appeal.

It is further submitted that contrary to the argument of the Appellant, there are no conflicts in the affidavit of the 1st-3rd Respondents and the counter affidavit of the Appellant to warrant calling of oral evidence by the lower Court or(2018) which made LPELR-45865(CA) it unsafe and indeed impossible for the Court to draw conclusion thereon. It is submitted that it is trite that it is not only by calling oral evidence that conflicts in affidavit

42 evidence can be resolved, such conflicts can be resolved by documentary evidence annexed to one of the affidavits in conflict with another, citing BAWA V. PHENIAS [2007] 4

NWLR (PT. 1024) 251 @ 267-269. We are urged to resolve these issues against the Appellant.

Issues 5 and 6 are argued together by the 1st-3rd Respondents. The point here is that the Appellant denies in this appeal that it ever made the submission attributed to it by the learned trial Judge to the effect that:-

“The Claimant/Appellant has submitted that the Defendant should be made to file their defence and place all the facts before the Court before raising their Preliminary Objection."

To this finding by the learned trial Judge, the Appellant contends that there is a misdirection which has occasioned a miscarriage of justice. (2018) LPELR-45865(CA)

In response, the 1st -3rd Respondents draw the attention of this Court to the submissions of the Appellant in respect of its motion filed on the 15th day of March, 2017, i.e. Motion No. HAD/131M/2017. In particular, attention is drawn to page 931 of the record where learned counsel for the Appellant, at the lower Court, submitted as follows:-

43 “We submit that the clear meaning of the above provision of the rules of this noble Court is that where a party in this case, a Defendant wishes to raise any point of law by way of challenge to the jurisdiction of the Court, such a party can only do so by raising same in his pleadings (Statement of Defence). And no party shall be allowed to raise such points of law merely by way of preliminary objection without filing his pleading along with same. It is therefore, when a defendant, as in this present case, raise a preliminary objection without first filing his statement of defence or raising such objection therein that the proceedings will amount to demurer which is no longer the practice."

It is argued, for the 1st -3rd Respondents that the wordings of the Appellant’s submission as reproduced here above are as clear as crystal ball which is to the effect that the 1st -3rd Respondents should be made to file their pleadings (Statement(2018) of defence) LPELR-45865(CA) first before raising their preliminary objection or filing preliminary objection along with their pleadings. It is submitted that it was that submission that the learned trial

44 Judge aptly summarized in his own language, albeit conveying the same meaning and effect with the submission of the Appellant. The Court is referred to dictum of Lord Denning in SEAFORD COURT ESTATE V.

ASHER [1949] 2 ALL E. R. 155 @ 164where the eminent jurist stated that English Language is not a Mathematical instrument of precision which must be followed in letters and figures. English Language which is the Language of the Court is an embodiment of synonyms and there is no known rule of practice and procedure which limits a trial Judge to the exact wordings used by a counsel in Court while making its findings. It is submitted that the lower Court did not in any way misconceived the Appellant’s submission in Motion No. HAD/131M/2017, and did not misdirect itself in any way. The Court is urged to resolve issue 5 against the Appellant.

With regard to issue 6, it is submitted that a preliminary objection to jurisdiction of a Court to entertain a matter before it(2018) is not a LPELR-45865(CA)demurer proceeding contrary to the contention of the Appellant, and such objection can be filed by the Defendant and taken by the trial Court first without filing of defence.

45 It is submitted that the notice of preliminary objection filed by the 1st -3rd Respondents sought for an order striking out the Appellant’s action in limini for want of jurisdiction on the ground that the Appellant’s action is statute-barred; discloses no reasonable cause of action; and ought to have been commenced by prerogative writ of certiorari. It is submitted that these are jurisdictional issues which can be raised at any stage of the proceedings with or without first finding a defence and the Court is duty bound to resolve same once raised one way of the other before hearing the substantive suit. It is further submitted that plethora of judicial authorities have over the years distinguished between objection to jurisdiction of Court to entertain a matter before it and demurer proceeding. Reliance is placed on- BAMISILE V. OSASUYI & ORS [2002] 7

NWLR (PT. 766) 272 @ 296 -297; AJAYI V. ADEBIYI & ORS (2012) LPELR 7811 (SC); and ELABANJO V.

DAWODU (2006) LPELR-1106 (SC).

It is further(2018) submitted LPELR-45865(CA) the an objection to jurisdiction of the Court, as done by the 1st -3rd Respondent in this case, is not an ordinary point of law contemplated by

46 Order 22, Rule 2 of the Rules of the lower Court that can be raised in pleadings. It is submitted that the said rule did not preclude the Respondents from filing a notice of preliminary objection to the jurisdiction of the lower Court before filing of defence as the issues raised by the 1st -3rd Respondents decisively disposed of the subject matter of the Appellant’s suit. Reliance is placed on OJOMO & ORS

V. FROZEN FOODS NIGERIA LTD & ORS (2009) LPELR-8926(CA) which interpreted High Court (Civil Procedure) Rules which is in pari material with Order 22. Rule 1 and 2 of the Ekiti State High Court (Civil Procedure) Rules.

It is submitted that assuming the 1st -3rd Respondents violated the provision of Order 22, Rules 1 and 2, the Appellant has waived its right to complain of such violation, having taken steps by filing a counter affidavit to the preliminary objection before filing Motion No. HAD/131M/2017. The 1st -3rd Respondents rely on Orders

5, Rules(2018) 1 and 2LPELR-45865(CA) of the lower Court’s Rules; CO-

OPERATIVE & COMMERCIAL BANK (NIG.) PLC V. A. G. ANAMBRA [1992] 8 NWLR (PT. 261) 528 @ 554; and NYESOM WIKE V. PETERSIDE (2016) 14 JSC 100 @ 161.

47 It is urged that issue 6 be resolved against the Appellant and that the appeal be dismissed.

For the 4th Respondent, it is submitted that the learned trial Judge was right in coming to the conclusion that the statement of claim did not disclose a reasonable cause of action. Attention is drawn to the fact that the Appellant had applied for and was granted a Right of Occupancy on a piece of land allocated to him in 2007 and in respect of which a Certificate of Occupancy was issued to it dated 6th day of February, 2008 (See Paragraphs 7 to 8 of the Statement of Claim at pages 9 and 10 of the record of appeal). The Certificate of Occupancy aforesaid was issued based upon certain conditions the 4th of which reads as follows:-

“(4) Within two years from the date of commencement of the Right of Occupancy to erect and complete on the said land, building (s) or other works specified in related plans approved by the Ministry(2018) of Lands, LPELR-45865(CA) Urban and Regional Planning or any other Agency empowered to do so” (This Certificate is located at page 28 of the record). ​ This Certificate was withdrawn in 2011 and replaced with another one in 2012

48 which is at page 30 of the record. It is submitted that this new certificate contains the same 4th conditions as in the previous are demanding for development of the land within two years and in terms of approve plans. It is contended that the land allocated to the Appellant was for the purpose of development of the land within two years and in terms of approved plans. It is contended that the land allocated to the Appellant was for the purpose of development of a five- star hotel under a collage setting, according to paragraph 6 of the Statement of Claim at page of the Statement of claim at page 9 of the record of appeal. It is contended that the Appellant did not build a five-star hotel under a cottage setting on the land allocated to it, and it was only between the months of February and April, 2015 that the Appellant put up a fenceonthe land, according to Paragraph 20 of the Statement of claim at page 12 of the record. It is argued that it was due to the failure of the Appellant to develop the land within two years window given to it and its failure to pay ground rent that it’s Right of Occupancy was revoked. Reference(2018) is made to LPELR-45865(CA) paragraph 24 of the

49 statement of Claim at page 24 of the record in contending that the Appellant was aware of the revocation, hence its erection of the fence.

With regard to what amounts to a cause of action and how it ought to be set outin an action in Court, the following authorities of the Supreme Court are relied on- IBRAHIM

V. OSIM [1988] NWLR (PT. 82) 257; and RINCO CONSTRUCTION CO. V. VEEPEE IND. LTD [2005] 9 NWLR (PT. 929) 85 @ 96.

It is submitted that, in the light of these authorities, to disclose a reasonable cause of action, the Appellant ought to have pleaded certain things each as the facts constituting its right, i.e. that it had an allocation; that the allocation came with conditions; and that it complied with the conditions of the grant, on the one hand. On the other hand, the Appellant’ Suit ought to have set out the Constituting infraction of its right by the Respondents, i.e. that notwithstanding(2018) LPELR-45865(CA) its compliance with the conditions of the grant the 1st-3rd Respondents revoked the grant without colour of right or legal justification. It is submitted that the Appellant did not plead along this line, and what the Appellant pleaded was the

50 opposite. With respect to the payment of ground rent and the development of the land in question, it is submitted that a perusal by the Court of the Statement of Claim will reveal that there is nowhere where the Appellant pleaded that it paid any ground rent or that it developed and build on the land a five-star hotel based on a collage setting being the purpose for which the Right of Occupancy was granted. There is also no pleading that it submitted a plan for a five- start hotel for approval as required by the Certificate of Occupancy. Rather, the Appellant pleaded that it erected a fence on the land between the months of February and April, 2015, long after the expiration of the two years allowed for development of the land, even, counting from development of the land, even, Counting from the year 2012. It is submitted that the Appellant’s statement of claim did not comply with the formula set out by the Supreme Court in RINCO (Supra). It is submitted that the Appellant was required to do more than pleading that it developed the land by building a fence on the land. What is required(2018) of it was to pleadLPELR-45865(CA) that it had developed the land by erecting and

51 completing on the land (building(s) or other works specified in related plans approved by the Ministry of land, Urban and Regional Planning or any other Agency Empowered to do so. It is contended that the Appellant failed to plead that it complied with clause 4 of the Certificate of Occupancy.

It is submitted that it is essential to plead compliance with the condition of grant not only because it constitutes sufficient disclosure within the meaning of RINCO, but also because in an action challenging unlawful revocation of tittle to land, it is essential to show that one is not in breach, and failure to do so is fatal to the claim as held in

CANAR INO LTD V. T. C. R. LTD (2017)3 NWLR (PT. 1553) 464.

It is further submitted that after revocation, it is lawful to allocate the same land to a corporate entity where the revocation is for breach of condition and not for public purpose. Reliance is placed on OBI V. MECT [2015] 9

NWLR (2018)(PT. 1465) LPELR-45865(CA) 610. It is submitted that this all important question and the authority are completely overlooked by the Appellant as it has continued to dwell on the identity of the subsequent allocation of the land rather than focusing

52 on the manner of revocation which ought to be the focus in an action challenging revocation for breach of condition.

As to the amount payable as ground rent, it is submitted that the argument of the Appellant to the effect that the 1st -3rd Respondent failed to compute ground rent payable from the year 2012 is laughably disingenuous. It is submitted that parties are not allowed to approbate and reprobate on an issue or to present a case at the trial Court and present another at the appellate Court. Reference is made to INTERCONTINENTAL BANK LTD V. BRIFINA

LTD (2012) LPELR-977 (SC); and AJIDE V. KELANI [1985] 3 NWLR (PT.12) 248.Reference is made to paragraph 18 of the Appellant’s statement of claim at page 11 of the record where the Appellant had averred that-

“The Claimant avers that when the Certificate of Occupancy was issued in 2012, the ground rent payable in respect of the said parcel of land had increased from N691,459.00 per annum to N6,668,000.00(2018) perLPELR-45865(CA) annum.”

It is submitted that, by this pleading, the Appellant was fully aware of the yearly ground rent payable in respect of the land allocated to it and to now argue as

53 the Appellant has done is akin to a tenant arguing that he failed to pay the rent value of the demised promises because he did not know the rental value to pay whereas the rental value was a term of the tenancy agreement he already signed. It is further submitted that clause 1 of the Certificate of Occupancy at page 197 of the record which the Appellant had frontloaded as part of its pleadings already obviated the need for computation or demand. The clause reads as follows:-

“To pay in advance without demand to the Government of Ekiti State (Hereinafter referred to as “the Governor”) or any other officer appointed by the Governor (a) the revised ground rent of N6,668,000.00 from the first day of January of each year …….”

It is submitted that the Appellant knewthe amount to pay, the person to pay to, the day on which to pay and the manner in which it ought to pay (in advance), and cannot honesty (2018)allege before LPELR-45865(CA) this Court the non-computation by the 1st -3rd Respondent.

On the issue of the case being statute-barred, it is submitted that the learned trial Judge was right when he held that the

54 Appellant’s suit was caught by the provisions of the Public Officers (Protection) Act and his finding in that regard is unassailable. The learned trial Judge found that the Appellawnt as served with the notice of revocation in December, 2014. It is the case of the 4th Respondent that when the Appellant, in its counter affidavit to the notice of preliminary objection, denied that it was ever served with notice of revocation of his Right of Occupancy, that 4th Respondent deposed to a further and better affidavit to which was attached the EMS Nigeria proof of dispatch slip to show that the notice was indeed sent by registered post to the Appellant and a copy of the notice is located at page 202 of the record, while a copy of the EMS slip is at page 203 of the record. The 4th Respondent also attached to the further and better affidavit, a copy of the EMS Delivery Form showing that the Appellant as addresses was served through one Gbemisola on the 22nd day of December, 2014. The action herein was commenced on the 16th day of January, 2017. It is submitted that by simple arithmetical calculation(2018) the Appellant’s LPELR-45865(CA) Suit at the lower Court was filed 2 years and a Month after

55 the notice of revocation had been served on it, that is, 25 Months after the accrual/occurrence of the cause of action (revocation of the Appellant’s title). It is submitted that the Appellant’s Suit was dead on arrival, this is because the law is trite that a cause must be alive before it can be entertained by a Court. It must be brought within the window allowed by the relevant limitation statute, as held by the Supreme Court in A. G., & ORS

V. A. G. F. (2014) LPELR-23221 (SC). It is submitted that the limitation statute applicable to this case is the Public Officers (Protection) Act, 2004 is view of the character of the 1st -3rd Respondent as described by the Appellant in paragraph 4 of its statement of claim at page 9 of the record. Reference is made to and reliance is placed on Section 2 (a) of the Public Officer (Protection) Act, 2004, in submitting that the action of the Appellant having been brought at a period beyond three Months window allowed by the law, the action was statute-barred as rightly held by the lower Court. Learned counsel for the 4th Respondent cites the(2018) cases LPELR-45865(CA)ofINEC V. OGBADIBO LOCAL

GOVERNMENT & ORS

56 (2015) LPELR-24839 (SC); CBN V. OKOJIE [2015] 13 NWLR (PT. 1479) 231 @ 260.

On the need to call oral evidence to resolve conflict in the various affidavits filed at the lower Court, it is submitted, for the 4th Respondent, that apart from the fact that the Appellant never asked for oval evidence and never alluded to any conflict before the lower Court, any conflict there was has been resolved by the documentary evidence attached to the further and better affidavit which showed that the notice of revocation was written and couriered and also that it was delivered. It is submitted that Court can resolve conflict in opposing affidavits by using documents attached to one of the affidavits, citing in support,

GBILEVE & ANOR V. ADDINGI & ANOR (2014) LPELR-22141 (SC); and NWOSU V. ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) 4 SCNJ 97. It is the submission of the 4th Respondent that it is apparent that the Appellant labours under a(2018) misunderstanding LPELR-45865(CA) of the law as pertains to conflicts in affidavit, as the obvious intentions of every deponent to a counter affidavit is to contradict the facts in the affidavit being responded to.

57 It is contended that if every contradiction occasioned by a counter affidavit would automatically result in the calling of oral evidence, then affidavits will lose their time saving, plenary-obviating litigation value. It is submitted that conflicts in affidavit evidence can be resolved by documents made available in the affidavits and the learned trial Judge merely followed the admonition of the Supreme Court in

GBILEVE and NWOSU (Supra) in coming to the conclusion he did.

As to paragraph 4.1.11 of the Appellants brief where it has complained bitterly that it would have liked certain documents to be “demonstrated at trial”, it is submitted that the Appellant never filed an application at the lower Court to cross-examine any of the deponents to affidavits in support of the notices of preliminary objection. It is submitted that it is late in the day to now hammer on the need to call oral evidence. ​ With regard(2018) to the freshLPELR-45865(CA) issues being raised on appeal by learned counsel for the Appellant as to the handwritings and signatures on the various exhibits evidencing the issuance and service of the notice of revocation,

58 it is submitted that address of counsel, however forceful, cannot take the place of evidence. It is submitted that there is no evidence upon which to hang the Appellant counsel’s tirade in paragraph 4.1.10 of the Appellant’s brief of. It is submitted that the Appellant’s brief is a spirited but futile attempt to discredit the very plain documents relied upon by the 4th Respondent.

It is further submitted that the Appellant, at the lower Court, did not deny or disown Aret Adams House, Ikorodu Road, Ilupeju, as its registered/principal address, and when the letter of revocation was delivered there, the provisions of Section 44 (d) of the Land Use Act, upon which the Appellant anchors its case, has been satisfied.

Marked difference between a public office/officer in its role as an asserter of a private right and a public office/officer in its role as an instrumentality of the state/communal authority. It is argued that the difference between the two is in the(2018) fact that LPELR-45865(CA)the former is a landholder/occupier whereas the latter is a land overseer/trustee. The law will not allow the former to use the provisions of the Land Use Act to confer title to land

59 (a Common Wealth of Nigerians) on himself or another, whereas in the case of the latter in his role as Trustee of Land, where the role is challenged, the provisions of the Land Use Act will apply. It is submitted that this distinction easily explains the decisions of the Supreme Court in A-G.

RIVERS and MULIMA case (Supra). In both cases, it is asserted, the complaint was not against the public officer as a trustee of land but the cases were disputes in private law between competing asserters of right to land. It is, therefore, submitted that revocation of the Appellant’s title took place on the 22nd day of December, 2014, and in view of the filing of the Appellant’s case in January, 2017, the suit failed to be brought timeously within the three months window envisaged by the Public Officer (Protection) Act, and for this reason, the suit was statute-barred and rightly struck out by the lower Court.

Coming to the issue of the learned trial Judge having made positive findings on the substratum of the substantive action at(2018) an interlocutory LPELR-45865(CA) stage, it is submitted, for the 4th Respondent, that the learned trial Judge acted only in accordance with the law that in the

60 consideration of whether a suit discloses a reasonable cause of action, the trial Judge should restrict himself to the statement of claim, and this explains the reason why the learned trial Judge had to probe into the adequacy of the appellant’s pleadings. It is argued that, in resolving the issue and stating that the Appellant had not paid ground rent or that it had not developed the land, the Court was simply evaluating the pleadings of the Appellant in line with the principle that in determining disclosure of reasonable cause of action, the Court will restrict itself to the pleadings of the plaintiff. It is submitted that it is a misstatement and misrepresentation of the holding of the lower Court to state that the learned trial Judge prejudged the substantive suit at interlocutory stage. Reference is made to page 1034 of the record.

It is also submitted that the Appellant misconstrues the nature of depositions in affidavit which the law considers to be evidence straightaway and that they are available for use by the(2018) Court the LPELR-45865(CA)same way oral evidence is available to the Court without the need for their deponents to adopt, reiterate

61 or activate their contents. Reliance is placed on HENRY

STEPHENS ENGINEERING LTD V. S. A YAKUBU (NIGERIA) LTD (2009) LPELR-1363 (SC); and BADEJO V. FEDERAL MINISTRY OF EDUCATION [1990] 8 NWLR (PT. 464) @ 42. It is therefore, submitted that the lower Court did not turn a blind eye to the affidavit evidence before it in determining its jurisdiction. It is submitted that the Supreme Court has had to consider the propriety of utilizing affidavit case ofAJAYI

V. ADEBIYI [2012] 11 NWLR (PT.1310) 137 @ 180.

It is further submitted that the disputes as to payment of ground rent and as to the development of the land allocated to the Appellant were not the substratum of the Appellant’s case at the lower Court. It is argued that the Appellant has expressly stated that it did not pay ground rent for the years 2007-2012 and deemed as unimportant the question of whether it paid ground rent after 2012. It is also argued that the issue of development was not a dispute submitted by the Appellant(2018) for LPELR-45865(CA)determination before the lower Court, as it did not institute the action to interrogate or evaluate the sufficiency or compliance of its own development on the land.

62 It is further argued that the issue of service of the revocation notice of 22nd December, 2014 was not an issue submitted to the lower Court by the Appellant because up until the preliminary objections were heard and determined, the Appellant feigned ignorance of the revocation altogether. It is submitted that the date on which the cause of action arose could not have been submitted by the Appellant to the lower Court for determination except the Appellant is contending that it filed an action to inquire as to the date on which its cause of action arose. It is finally submitted that the lower Court did not at an interlocutory stage resolved any issue calling for resolution in the substantive suit as the Court merely evaluated the sufficiency of the Appellant’s pleading regarding ground rent and development, and the Court merely relied on affidavit evidence with regard to the service of revocation notice which it was not only safe to rely on, but was required by the Supreme Court decision in

AJAYI V. ADEBIYI (Supra), to rely on. (2018) LPELR-45865(CA)

As to the Appellant’s allegation that the learned trial Judge misunderstood or did not appreciate its argument

63 concerning the non-filing of pleadings by the Respondents before filing the notices of preliminary objection, it is submitted, for the 4th Respondent, that the difference between the Appellant’s position and the learned trial Judge’s reportage thereof can be liken to the difference between “six” and “half-a-dozen”. It is submitted that the grouse of the Appellant is with the phraseology of the Court, and that the law is settled that there is no hard and fast rule to the stage of judgment-writing as the Supreme

Court held in JIMOH GARUBA V. ISIAKA YAHAYA

(2007) LPELR-1311 (SC). It is submitted that the Appellant may have misspoken at the lower Court and may now wish to correct itself before this Court but it ought not to deprecated and castigate the learned trial judge for accurately reporting its previous misspeak. It is submitted,assuming without conceding, that even if the learned trial Judge has misrepresented the argument of the

Appellant in paragraph 3.1.2.of its address in support of its motion filed on the 15th March, 2017, the misrepresentation(2018) isLPELR-45865(CA) not fatal and it was not enough to make this Court to set aside his judgment on that

64 point, because His Lordship came to the right decisions on the issue of demurer. It is submitted that it is not every ship by the trial Court that will attract the appellate Court sanction by setting aside its decision except where it can be demonstrated that a substantial miscarriage of justice has been occasioned. Reliance is placed onBAYOL V.

AHEMBA [1999] 10 NWLR (PT. 623) 381.It is submitted that the objection of the 4th Respondent at the lower Court transcended the provisions of Order 22, Rules 1 and 2 of the Ekiti State High Court (Civil Procedure) Rules, 2011 and the Rules cannot impede the manner as to how or time objection to the jurisdiction of a Court can be raised, citing NASIR V. CIVIL SERVICE COMMISSION,

KANO STATE & ORS (2010) LPELR-1943 (SC); MOBIL OIL (NIGERIA) PLC. V. IAL 36 INC. (2000) LPELR-1883 (SC); and GEOMEK NIGERIA LIMITED V. MATORI (2002) LPELR-12268 (CA). It is submitted that demurer has no place in the instant case. The Court is urged to dismiss this appeal for lacking merit. (2018) LPELR-45865(CA)

​The Appellant filed a Reply Brief to each of the two sets of Respondents. I have critically looked at the Reply Briefs and found them to be a re-argument of the appeal. I will discountenance them in this judgment.

65 As stated earlier in this judgment, the determination of this appeal will be based on the issue as formulated by the Appellant.

On issue 1, the Appellant anchored its case on the issue of service, on it, of the notice of revocation of its Right of Occupancy by the 1st-3rd Respondents. Attempts were made to question the veracity and probative value of Exhibits E, F, And FBA1 attached to the 1st -3rd Respondents’ Further and Better Affidavit, which exhibits are the same as Exhibits D, E and F attached to the 4th Respondent’s Further and Better Affidavit in support of the Preliminary Objection. It is worthy of note that the two sets of further and better affidavits were not responded to by the Appellant at the lower Court. The Appellant did not raise any issue(s) at the lower Court, relating to the propriety and/or probative value of the said exhibits, and if it did, it was only part of counsel’s address which did not constitute evidence. The contention(2018) of learnedLPELR-45865(CA) counsel for the Appellant at paragraphs 4.1.10 to 4.1.14 of the Appellant’s brief of

66 argument that the documents attached to the two further and better affidavits of the 1st-3rd and the 4th Respondents are of no probative value and a complete after thought remains what it is- ”counsel’s address”. This goes to no issue. Counsel’s address cannot constitute evidence and it does not qualify as a response to affidavit evidence. Having failed to file a further counter-affidavit at the lower Court in response to the two further and better affidavits, it is late in the day to raise the issue of the veracity and the probative value of those affidavits before this Court without the leave of the Court first sought and obtained. The two sets of Respondents are on a firm ground when they argued that it is late in the day to now challenge the veracity and probative value of documents attached to their respective further and better affidavits in counsel’s address. Given the above scenario, it is my view that the Appellant shot itself in the foot when it failed to repute or challenge, in a further counter affidavit, the weighty allegations, showing by documentary evidence, that he was in fact served(2018) with the LPELR-45865(CA) notice of revocation in

67 December, 2014 as manifest on the face of the further and better affidavits. The law is settled that an affidavit evidence constitutes evidence and it must be so construed. Therefore, any deposition made in an affidavit which is not challenged or controverted is deemed admitted. See

OWURU & ANOR V. ADIGWU & ANOR (2017) LPELR-42763 (SC). Per Onnoghen, JSC (as he then was, at page 22. In LONG-JOHN & ORS V. BLAKK &

ORS [1998] 6 NWLR (PT. 555) 524, it was held, per IGUH, JSC that-

“It is trite law that where facts provable by affidavit evidence are duly deposed to in an affidavit by a party to a suit, his adversary has a duty to controvert those facts in a counter-affidavit if he disputes them, otherwise such facts may be regarded as duly established." The learned trial Judge was right to have found that the

Appellant was served with the letter of revocation of its Right of Occupancy in December, 2014, on the basis of Exhibits (2018)E, F, and FBA1 LPELR-45865(CA) attached to the further and better affidavit of the 1st -3rd Respondent, on the one hand; and Exhibits D, E, and F attached to the further and better affidavit of the 4th Respondent. Thisissue is hereby resolved against the Appellant.

68 By this finding of the learned trial Judge, it naturally follows that the cause of action in this suit accrued on the 22nd day of December, 2014. The Appellant instituted this action in January, 2017, that is, a period of three years after the accrual of the cause of action. By Section 44 of the Land Use Act, the Appellant was entitled to be notified of the revocation of his title to land. That notice was served on the Appellant in December, 2014 as demonstrated by Exhibits E, F, and FBA1 or Exhibits D, E, and F attached to the two further and better affidavits respectively, which were not controverted by the Appellant. To controvert these, the Appellant ought to have deposed to a further counter-affidavit, stating either that the address to which the letter was addressed was not its registered office or that the recipient was not its staff. There was no such denial, not even in the counsel’s address, which has been held elsewhere in this judgment as not constituting evidence. ​The duration of a right or cause of action which is conferred(2018) on an injured LPELR-45865(CA) party is necessarily limited and does not last

69 till eternity. It lapses after the date the statute of Limitation proclaims that no such legal action or proceedings may lawfully be taken or commenced by an injured party. It is, therefore, necessary when dealing with statutes of limitation to first determine the precise date the cause of action accrued because time will start to run from the moment the cause of action arose. EBOIGBE V. N. N. P.

C. [1994] 5 NWLR (PT. 347) 649 @ 663. Respondents, by uncontroverted further and better affidavit evidence, furnished the lower Court with, not only the notice of revocation, but also proof of service of such notice on the Appellant; as well as the evidence of payment to the courier company that delivered the mail. Refer to paragraph 3 of the 1st-3rd Respondents’ further and better affidavit together with the exhibits (documents) attached thereto. The Appellant’s Counsel submits that the 1st Respondent purportedly revoked its Right of Occupancy whimsically, bad faith and in flagrant breach of Section 28, 29 and 44 (a) – (2018)(e) of the LandLPELR-45865(CA) Use Act, as well as Section 44 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria,

70 1999 (as amended), in that no notice of revocation whatsoever was served on the Appellant. The learned counsel, for the purpose of the above submission, quotes verbatim from the Land Use Act, Section 28 (1), (4), (6) (7); and Section 44 (a) (b) (c)(d) (e). By reason of the findings by the learned trial Judge, which I hold to be correct, that it is evident that the Appellant was served with the notice of revocation of its Right of Occupancy in December, 2014 and that its cause of action accrued in December, 2014. It is convenient for the learned counsel to quote Section 28 (1) (4) (6) and (7) of the Land Use Act and to surreptitiously leave out Section 28 (5) of the Act. It is Subsection (5) of this Section that empowers the Governor to revoke a right of occupancy on grounds other than for overriding public interest.Section 28 (5) provides as follows:-

“(5) The Governor may revoke a statutory right of occupancy on the ground of – (a) a breach of any of the provisions which a certificate(2018) is by SectionLPELR-45865(CA) 10 of this Act deemed to contain; (a) a breach of any term contained in the certificateof occupancy or in any special contractmade under section 8 of this Act;

71 (b) a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the governor under Section 9 (3) of this Act." Section 44 (a) – (e) is about the service of the notice of revocation. I agree with the learned trial Judge that the provisions of this section have been satisfied since the further and better affidavits to which the documentary evidence of service of the notice of revocation remain uncontroverted. As stated, earlier in this judgment, the Appellant did not respond to the Respondents’ further and better affidavits except through the address of its learned counsel which cannot be a substitute for affidavit evidence. Reference by the Appellant to the various cases on the issue of notice of revocation and its service is of no assistance to it.

INAKOJU V. ADELEKE (Supra) and a host of other authorities cited to buttress the contention that Courts are bound to enforce the mandatory provisions of a substantive law are of(2018) no moment LPELR-45865(CA) since it has not been demonstrated how or where the lower Court failed to comply with

72 these authorities. The Appellant has also failed to show that the 1st Respondent was in breach of any of the provisions of the Land Use Act. The Appellant is under the canopy of the Supreme Court authority in OSHO V. FOREIGN FINANCE

CORPORATION [1991] 4 NWLR (PT.184) 157 at 194 where it was held that-

“An acquiring authority cannot rob Peter to pay Paul by depriving one citizen of his interest in property and vesting the same on another." What the Appellant fails to appreciate is the fact that OSHO’S case (Supra) arose as a result of revocation of a right of occupancy for OVERRIDING PUBLIC INTEREST whereas the instant case arose as a result of revocation for breach of provisions and terms contained in the certificate of occupancy. Whereas the revocation for overriding public interest cannot mean an intention to vest interest in the property/land on another person; a revocation for breach of terms and condition contained in a certificate of occupancy entitles (2018)the Governor LPELR-45865(CA) to re-allocate the same land to another citizen. ​By its own outing, the Appellant pleads in its statement of claim that the reason given for revocation of

73 its title was that he did not comply with the terms and conditions contained in its certificate of occupancy which demands that it should pay ground rent on the 1st day of every year and that within two years of the grant of the right of occupancy, it should complete the development of the land covered by the certificate after the submission of an approved building plan for the purpose for which the certificate was granted. The statement of claim fails to disclose that the ground rents were paid or that it indeed developed the land in accordance with the purpose for which the certificate was granted; or that it ever submitted an approved building plan as demanded by the certificate of occupancy. In the light of the above, the learned trial Judge cannot be faulted when he held that the suit did not disclose a reasonable cause of action. This brings me to the question whether or not the provisions of the Public Officers (Protection) Act, 2004 apply to revocation of land. I have gone through the

Supreme(2018) Court decisions LPELR-45865(CA) in MULIMA V. USMAN [2014]

16 NWLR (PT. 1432) 160, 212; A-G., RIVERS STATE [2013] 3 NWLR (PT. 1340) 123, 150; and others.

74 All the authorities, without exception, relate to where the revocation was based on overriding public interest. I have searched in vain to see the opinion of the apex Court where the revocation is on the ground of breach of terms and conditions contained in a certificate of occupancy as provided by Subsection (5) of Section 28 of the Land Use Act. It is my candid firms view that where the revocation is on the ground of a breach of terms or conditions contained in the certificate of occupancy as it is in the instant case, Public Officers are afforded the protection provided under Section 2 (a) of the Public Officers (Protection) Act, 2014. In view of my holding, that the lower Court was right in finding that the Appellant was served with the notice of revocation of its right of occupancy; that the learned trial Judge was right in holding that the Appellant’s statement of claim did not disclose a reasonable cause of action; and that the learned trial Judge was right that action before him was statute-barred, and despite the grandiosity of the submissions(2018) of learned LPELR-45865(CA) counsel for the Appellant, it will amount to a mere academic exercise for me to proceed to considering all the other issues formulated by the Appellant.

75 In the final analysis, this appeal fails and it is hereby dismissed.

The decision of the Ekiti State High Court, Ado-Ekiti Judicial Division, contained in the ruling of the Honourable Justice C. I. Akintayo, delivered on the 5th day of June, 2017 in Suit No. HAD/05/2017 is hereby affirmed. No cost is awarded.

FATIMA OMORO AKINBAMI, J.C.A.: This appeal is against the decision of the Ekiti State High Court, Ado Ekiti Division, delivered on the 5th day of June, 2017 in Suit No. HAD/O5/2017. I have had the advantage of reading in advance, the judgment just delivered by my learned brother AHMAD OLAREWAJU BELGORE, JCA.

All the issues for determination in the appeal have been extensively and exhaustively dealt with in the lead judgment.(2018) I have nothing LPELR-45865(CA) useful to contribute to the well researched reasoning and conclusions arrived at in the lead judgment. I adopt same as mine and accordingly dismiss the appeal.

I abide by the consequential orders in the lead judgment

76 PAUL OBI ELECHI, J.C.A.: I had the singular opportunity of reading in draft the lead judgment just delivered by my learned brother AHMAD OLAREWAJU BELGORE JCA in this Appeal. It represents my views in this Appeal. Accordingly I adopt same. ​ There is no substance in this appeal. The learned trial judge cannot therefore be faulted when he held in his judgment that the suit of the Appellant did not disclosed a reasonable cause of action. I adjudge the appeal unmeritorious and it is accordingly dismissed by me. The decision of the Ekiti State High Court, Ado- Ekiti judicial Division contained in the said Ruling on appeal is hereby affirmed. I endorse the consequential order of no cost made. Appeal Dismissed.

(2018) LPELR-45865(CA)

77 Appearances:

Chief Robert Clarke, SAN, with him, Peter Nwatu Esq., David Ogundipe, Esq. For Appellant(s)

Mr. Olatawura and Nworie - for 1st to 3rd Respondents. Mr. Adebayo Adenipekun SAN with him, O.O. Ogundipe, O. O. Olurotimi and O. A. Adenipekun Esq.- for 4th Respondents. For Respondent(s)

(2018) LPELR-45865(CA)