OLOMODA V. MUSTAPHA (2020)

Background

This appeal concerned the revocation and subsequent reallocation of a statutory right of occupancy over land at No. 38 Station Road, G.R.A., Ilorin, Kwara State. The original claimant, Alhaji Senator Ayinla Olomoda, was granted approximately 3,636.16 square metres of land for residential purposes under Certificate of Occupancy No. KW 4104 dated 16 June 1981. The grant was for 99 years and contained special conditions, including a requirement that the buildings approved by the town-planning authority be erected and completed within three years. The land was also to be used only for residential purposes.

After taking possession, Olomoda fenced the property, constructed a gatehouse and built a two-bedroom bungalow, while cultivating crops on part of the land. Ministry officials inspected the property in February 2007. In October 2007, the first and second respondents entered the land, allegedly with the assistance of officials of the Kwara State Ministry of Lands, demolished the gatehouse and began activities connected with the construction of a swimming pool. Police investigations indicated that the land had been subdivided and reallocated without, according to the claimant, a valid revocation of his existing interest.

The government contended that the right of occupancy had been revoked for breach of the grant’s terms, particularly the failure to complete the required development within three years and the use of the land for farming. It relied on a warning letter, a subsequent revocation notice and a newspaper publication. The High Court dismissed the claimant’s action, and the Court of Appeal affirmed that decision. During the appeal, the original claimant died and Usman Kayode Olomoda was substituted by order of the Supreme Court.

Issues

1. Whether the special terms of the grant excluded or altered the application of section 50 and other relevant provisions of the Land Use Act.
2. Whether the development condition in the certificate of occupancy had statutory force and could not be waived.
3. Whether the purported revocation notice was sent and served in accordance with the Land Use Act.
4. Whether the Court of Appeal properly determined whether the notice was a valid instrument of revocation.
5. Whether the lower courts properly evaluated the evidence relating to the claimant’s damages.

Ratio Decidendi

The Supreme Court held that section 28(5) of the Land Use Act uses the word “may” in conferring the power to revoke a statutory right of occupancy for breach of a condition. The provision is therefore permissive rather than automatic. Although a governor has power to revoke for breach of a term contained in a certificate of occupancy or a special contract made under section 8 of the Act, the power must be exercised lawfully and in strict compliance with the statutory requirements.

The Court emphasized that section 28 and its subsections are expropriatory provisions because they permit government to take away proprietary interests. They must consequently be construed strictly against the acquiring authority and sympathetically in favour of the person whose interest is being extinguished. Notice is not a mere technicality: its purpose is to inform the holder of the steps being taken to terminate the right and to afford an opportunity for appropriate response.

Under section 44 of the Land Use Act, notice may be served personally, left at the person’s usual or last known place of abode, or sent by prepaid registered letter to that address. Olomoda had replied to the earlier warning letter and supplied a new address at No. 5 Abugi Close, Adewole Estate, Ilorin, together with a post-office box. The purported revocation notice was instead sent through an old ministry address. The Court held that this did not satisfy the statutory requirements. The newspaper publication was also insufficient because it was not properly certified and could not establish valid service.

Court Findings

The Supreme Court found that the concurrent decisions of the lower courts were based on a perverse evaluation of the documentary evidence concerning service. It held that appellate intervention was permissible because the central questions involved the interpretation of documents and the Land Use Act, rather than the credibility of witnesses. The failure to serve the revocation notice at the appellant’s known current address rendered the purported revocation ineffective, null and void.

The Court further observed that no compensation had been offered despite evidence that the claimant had erected a fence, a gatehouse and a two-bedroom bungalow. The government’s entry, subdivision and reallocation of the land were therefore carried out without due regard to the statutory process. The Court also reiterated that a person affected by revocation should receive fair hearing, particularly where revocation is based on an alleged breach of the terms of the certificate of occupancy.

The Court noted that originating summons is appropriate where material facts are not substantially disputed. It should not be used as a substitute for pleadings and a full trial where contentious factual questions arise, especially in relation to damages for destroyed structures and crops. Nevertheless, the decisive issue concerning the validity of the revocation could be resolved from the documentary record.

Conclusion

The appeal was allowed. The judgments of the High Court and Court of Appeal were set aside insofar as they upheld the revocation. The Supreme Court declared the revocation of the right of occupancy covered by Certificate of Occupancy No. KW 4104 invalid, null and void, and held that the appellant’s interest in the property remained valid and subsisting. The Court awarded N100,000 in general damages against the first and third respondents jointly and severally for trespass, and awarded costs of N500,000 in favour of the appellant against those respondents.

Significance

The decision confirms that governmental power over land is not unfettered. A governor may revoke a statutory right of occupancy for a recognized breach, but must identify and follow the statutory procedure, give effective notice to the holder at the correct address, respect fair-hearing requirements and comply with applicable compensation principles. A defective notice cannot be cured merely by showing that government officials intended to revoke the interest or by relying on an uncertified newspaper publication. The case is therefore important on statutory interpretation, administrative fairness, land acquisition and the protection of property rights under the Land Use Act.