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  • 2012-05-14
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Kandix Ltd v. Att.-Gen. & Comm. for Justice, C.R.S.

KANDIX LIMITED

PROF. UKANDI GODWIN DAMACHI

V

ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, CROSS RIVER STATE

GOVERNMENT OF CROSS RIVER STATE

COURT OF APPEAL

( CALABAR DIVISION )

KUMAI B. AKAAHS JCA ( Presided and Read the Lead Judgment )

JA’AFARU MIKA’ILU JCA

NWALI SYLVESTER NGWUTA JCA

CA/C/200/2009

THURSDAY, 24 JUNE 2010

LAND LAW - Developed land - Meaning of - Land Use Act, section 51 considered

LAND LAW - Property - Right to own - Constitutionality of - Constitution of the Federal Republic of Nigeria, 1999, section 44 considered

LAND LAW - Right of occupancy - Revocation of - Notice of - Purport of - Revocation done in absence of - Incompetence of

LAND LAW - Statutory right of occupancy - Revocation of for public purpose - Relevant provisions for - Compliance with Mandatoriness of

STATUTE - Constitution of the Federal Republic of Nigeria, 1999 , section 44 considered - Property - Right to own - Constitutionality of

STATUTE - Land Use Act, section 51 considered - Developed land -

Meaning of

Issue:

  1. Whether the non-compliance with the mandatory provision of the notice of revocation did not void the purported revocation of the appellants’ right of occupancy as published in the Nigerian Chronicle of 24 - 28 January 2002.
  2. Whether the appellants’ statutory right of occupancy on its property can be revoked for public purposes and reallocated to other private persons.

Facts:

The 2nd plaintiff is the chairman of the 1st plaintiff. They claimed that the disputed land was allocated to the 1st plaintiff but that the defendant revoked and reallocated the land without proper notice. They therefore took out an originating summons seeking determination of the following questions: whether the publication of the purported revocation notice in the Nigerian Chronicle of 24 January to 28 January 2002, complied with the mandatory requirement of personal service of the notice as provided in the Land Use Act; whether the defendants have the legal authority to revoke plaintiffs’ title for extension of Calabar Free Trade Zone and allocate the land to their cronies for their personal use; and whether the action of the defendants did not violate the plaintiffs’ constitutional right as enshrined in the Constitution of the Federal Republic of Nigeria, 1999. They sought declaratory and injunctive reliefs that; the plaintiffs are entitled to personal service and notice of the said revocation; the defendants have no power to revoke the title; orders setting aside the revocation and directing the registrar of deeds to remove the notification of the alleged revocation; and perpetual injunction restraining the defendants and their allottees from trespassing or further trespassing on the land. The defendants contended that the plaintiffs defaulted in payment of the ground rent of the land and failed to develop the land which were the reasons that grounded the revocation. The trial court held that the defendants failed to serve the plaintiffs the required notice but that the plaintiffs were not entitled to a notice of revocation having breached a covenant in the right of occupancy and dismissed plaintiffs’ claims. Aggrieved, the plaintiffs appealed to the Court of Appeal.

In determination of the appeal, the Court of Appeal considered the following statutes:

Constitution of the Federal Republic of Nigeria, 1999, sections 43 and 44(1):

“43. Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.

44(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and purposes prescribed by a law that, among other things:

  1. requires the prompt payment of compensation therefore; and
  2. gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.”

Land Use Act, sections 28(1), (2)(b) and 44: 28(1)  “It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.”

  (2)(b) “the requirement of the land by the Government of the State or by a Local  Government in the State, in either case for purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;”

“44. Any notice required by this act to be served on any person shall be effectively served on him:

  1. by delivering it to the person on whom it is to be served; or
  2. by leaving it at the usual or last known place of abode of that person; or
  3. by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; or
  4. in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office; or
  5. if it is not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served, by addressing it to him by the description of “holder” or “occupier” of the premises ( naming them) to which it relates, and by delivering it to some person on the premises, or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it to some conspicuous part of the premises.”