WHETHER AN ORDER OF PERPETUAL INJUNCTION CAN BE MADE TO STRIP THE GOVERNOR OF A STATE OF HIS POWERS UNDER THE LAND USE ACT

                                 

CASE TITLE:                         THE GOVERNOR OF IMO STATE & ORS v. DELU ENTERPRISES NIGERIA LTD (2021) LPELR 54724(CA)

JUDGMENT DATE:           10TH MAY, 2021

JUSTICES:                            AYOBODE OLUJIMI LOKULO-SODIPE, JCA

                                           OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA

                                           AMINA AUDI WAMBAI, JCA

COURT DIVISION:            OWERRI

PRACTICE AREA:              Land Law- Revocation of Land.

FACTS

The Respondent (Claimant in the trial Court) is a limited liability company duly registered under the Companies and Allied Matters Act, 2004. The land in dispute was allocated to the Respondent by the 1st Appellant through the 3rd Appellant in 1996 to enable it establish thereon, a Nursery/Primary School. After the allocation, the Respondent applied for, and was granted permission by the Owerri Capital Development Authority (OCDA), Imo State, to fence the land and thereafter put up a dwarf fence round the land in dispute. In 1988, the Respondent submitted its building plan to the OCDA for approval and the approval sought was duly granted.

The Respondent alleged that it went on the land to commence building construction, but members of the community resisted this on the ground that the Governor Of Imo State and the Commissioner, Ministry of Survey and Urban Planning (1st and 3rd Appellants) had not paid any compensation to them in respect of the parcels of land compulsorily acquired by the 1st Appellant. The Respondent reported the development to the 3rd Appellant and was always assured by the said 3rd Appellant that something positive would be done in respect of the matter.

Despite this problem, the Respondent continued to pay the required land rent and fees approved by the 1st Appellant through the 3rd Appellant, up to the year 2014. In February 2015, when the Respondent went to pay the ground rent for 2015, the 3rd Appellant told it to hold on until after the elections. Sometime in October 2015, the Respondent discovered that the 1st and 3rd Appellants had entered the land in dispute and had bulldozed the entire area and completely destroyed its dwarf fence thereon.

Being aggrieved by the act of the Appellants, the Respondent inquired from the 3rd Appellant as to why such action was taken and was informed that the land in dispute had been parcellated into fifteen residential plots numbering Plots 535 to 549, and allocated to some unknown and undisclosed persons on the directive of the 1st Appellant. The Respondent claimed to have made several representations to the 3rd Appellant as well as the individuals to whom parcels of land were purportedly allocated, to stop their acts of trespass on the land but the 3rd Appellant rebuffed the Respondent on all such occasions.

The Respondent consequently instituted the instant suit by way of a writ of summons wherein it claimed inter alia for a declaration that the Respondent is entitled to the right of occupancy in and over the parcel of land in dispute, an order of perpetual injunction restraining the Appellants or their agents from doing anything on or with the land in dispute which is inconsistent or in any manner interfering with the rights of the Respondent over the said parcel of land and for N500,000,000.00 general damages for trespass on the said land.

In its considered judgment, the trial High Court found in favor of the Respondent and granted its reliefs as claimed. ​

Being aggrieved with the judgment of the trial High Court, the Appellants initiated the instant appeal in the Court of Appeal.

ISSUES:

The Court determined the appeal upon consideration of the following issues:

1. Whether or not the lower Court was correct or right in its decision in respect of the notice of revocation the Appellants alleged that they served on the Respondent.
2. Whether or not the lower Court having granted the other claims of the Respondent was right to have awarded N10 million as damages to the said Respondent.

COUNSEL SUBMISSIONS:

Learned Counsel to the Appellant submitted that the trial Court did not give expansive consideration of the facts and circumstances of the case before it arrived at its finding of not according probative value to Exhibit 7 (affidavit of service). Learned Counsel further submitted that upon service of the Notice of Revocation on the Respondent, its title over the plot was extinguished by virtue of Section 28(7) of the Land Use Act as a result of which the plot then became available for re-allocation. That the Appellants were therefore perfectly in order by re-allocating same in the exercise of their powers under Sections 5 and 51(2) of the Land Use Act.

Learned Counsel finally submitted that the 1st Appellant has the statutory powers to allocate and revoke title to lands in Imo State pursuant to Sections 5 and 28 of the Land Use Act and that it is trite that an order of perpetual injunction cannot be issued to restrain the exercise of statutory functions as doing so is to restrict the intendment of the legislature,

Furthermore, he submitted that it is an established principle of law that the Court cannot grant a declaratory relief in favor of a person not before it as a party to a case.

On the other hand, Learned Counsel to the Respondent submitted that the trial Court was right in not according probative value to the said exhibit and in holding that the said Exhibit does not amount to a proper service of Notice as required by the Land Use Act (LFN) 2004. Learned Counsel submitted that the purported revocation of the Respondent’s right/interest in the land in dispute was not validly or lawfully done, as it did not conform with the provisions of the Land Use Act. Though, conceding that the 1st Appellant has the power to revoke a statutory right of occupancy, Learned Counsel submitted that such exercise of right of revocation must strictly comply with Section 28(2) and (3) of the Land Use Act.

Learned Counsel finally submitted that once the trial Court found that the Notices were not lawfully made and served, and rightly struck them down, the Respondent’s action succeeded. That once the trial Court found that it proved its case on the preponderance of evidence, the trial Court was entitled to grant the reliefs claimed by the Respondent including an order of perpetual injunction against the Appellants. Also, that the law states that an act of trespass is properly dealt with by an order of injunction in order to stop a perpetration of the damage complained about or the continued trespass of the trespasser.

DECISION/HELD:

In the final analysis, the Court of Appeal held that the Appeal succeeded in part as regards the order of perpetual injunction and the award of N10 million as general damages against the Appellants in favor of the Respondent. The other reliefs granted in favor of the Respondent by the trial Court were upheld.

RATIO:

EQUITABLE REMEDY- PERPETUAL INJUNCTION:

Whether an order of perpetual injunction can be made to strip the Governor of a State of his powers under the Land Use Act – “I have earlier in this judgment highlighted the purpose of the Land Use Act. It is also clear therefrom that the administration and control of land within the geographical space of Imo State, is vested in the Governor. Furthermore, it is clear from a holistic reading of the said Land Use Act that the Governor can discharge his powers under the Land Use Act, by himself or through public officers of his choice. The injunction granted in this case as argued by the Appellants will clearly derogate from the powers of the Governor to administer and control all the land in Imo State that is vested in him. The injunction would appear to prevent the Governor from ever and for whatever reason dealing with the land in dispute in the instant case. I am of the considered view that the fact that the revocation the Appellant carried out in the circumstances that resulted in the bringing of the instant case and which has been held to be a nullity, does not strip the Governor of the power of embarking on the revocation of the certificate of occupancy in respect of or over the same land in dispute afresh, adhering strictly to the relevant provisions of the Land Use Act and/or the acquisition of the land covered by the Respondent’s certificate of occupancy for overriding public purpose in contradistinction to the enforcement as it were, of the terms and conditions in the said certificate as has been unsuccessfully done in the instant case due to the non-service of a proper notice of revocation. The lower Court in my considered view did not consider the consequences that slamming an order of perpetual injunction will have on the exercise by the Governor of his powers under the Land Use Act, in its automatic granting of the Respondent’s claims/reliefs based on its singular finding in respect of the nullity of the revocation the Appellants undertook. This is more so as the order of injunction granted is not in aid of any specific or express claim in trespass. Indeed, the Appellants having parcellated the land in dispute as averred by the Respondent and also having re-allocated the parcellated plots, one cannot but wonder what the granting of an order of perpetual injunction is designed to achieve; if not to remove or excise as it were, the land covered by the Respondent’s certificate of occupancy from the whole of the land in Imo State that the Governor of Imo State is by the Land Use Act duty bound to administer and control. No order of Court stripping the Governor of his powers under the Land Use Act, should be allowed to stand.”