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2018) Lpelr-45865(Ca CIL RISK ASSET MGT LTD v. EKITI STATE 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 Nigeria, 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.
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