Gwalem v. Daura: On whether subsisting right of occupancy can be invalidated by grant of subsequent right of occupancy over same land. An insight into the decision of the Court of Appeal therein. Citation: (2021) 3 NWLR PT. 1763 AT 340. Courtesy: Moruff O. Balogun Esq.

PARTIES IN FULL:
JUMMAI GWALEM
V.
AMBASSADOR ADAMU SAIDU DAURA
MINISTER OF THE FEDERAL CAPITAL TERRITORY
FEDERAL CAPITAL TERRITORY DEVELOPMENT AUTHORITY

Statement of Fact:
The 1st respondent was the plaintiff at the trial court. His case was that he was granted the right of occupancy of Plot 3644 Maitama (A06) District Abuja on 22nd May 2003 and was issued a certificate of occupancy registered as No. 16550 at page 16550 in volume 82 of the certificate of occupancy register in the Lands Registry Office at Abuja on 20th March 2006. He tendered the certificate of occupancy in evidence as exhibit 2. He also tendered in evidence the 2nd and 3rd respondents written demand dated 25th February 2009 for his payment of ground rent and the receipt for ground rent he paid as exhibits 3 and 4.

After the writ of summons was served, the appellant filed and argued a preliminary objection to the suit on ground that the writ was not served on him personally. Eventually, he filed his defence and partook in the trial. His case was that on 2nd March 2007, he was offered the statutory right of occupancy of the same Plot No. 3644, Cadastral Zone (A06) Maitama, Abuja with a new file No
AD21302. He tendered in evidence, the written offer dated 2nd March 2007; the site plan of the land; the building plan; the building plan approval; receipts for payment of the building plan fees; and other documents as exhibit 1.

The appellant asserted that the respondent’s right of occupancy was revoked, and relied on a letter he tendered in evidence as exhibit 6. That exhibit referred to another letter dated 3rd June 2008, which he said erroneously reinstated the 1st respondent’s revoked right of occupancy of the land. On the basis of exhibit 6, the appellant contended that it should be presumed the 1st respondent’s interest in the land had been revoked and was non-existent before 3rd June 2008. The appellant, however, did not tender in evidence, the alleged letter of revocation of the 1st respondent’s right of occupancy or the letter dated 3rd June 2008.

During final address of the trial court, the appellant challenged the validity of the writ of summons by which the suit was commenced on the ground that it was not signed by a legal practitioner.
The trial court delivered its judgment at the conclusion of hearing and found in favour of the 1st respondent. The appellant was dissatisfied with the trial court’s judgment and appealed to the Court of Appeal.

In determining the appeal, the Court of Appeal considered the provisions of section 28(6) and (7) of the Land Use Act; Order 4 rules 1(1),(2), (3) and 15 of High Court of the Federal Capital Territory (Civil Procedures) Rules, 2004. They provide as follows:
Section 28(6) and (7) of the Land Use Act-
“6. The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the Governor and notice thereof shall be given to the holder,
“7. The title of the holder of a right or occupancy shall be extinguished on receipt by him or a notice given under subsection (6) of this section or on such later date as may be stated in the notice.”

Order 4 rules 1(1), (2), (3) and 15 of High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004:
1(1) A writ of summons shall be issued by a Registrar, or other officer of court empowered to issue the summons, on an application.
(2) An application shall be made in writing by the plaintiff’s solicitor who completes Form 1, as in the appendix.
(3) Where an applicant for writ of summons is illiterate, or has no solicitor, a Registrar or other officer of court may dispense with a written application, put himself instead and record full particulars of the oral application made and on that record a writ of summons may be prepared, signed and issued.

15: A writ is issued when signed on by a Registrar or other officer of court duly authorised to sign the writ and accompanied by –
(a) a statement of claim,
(b) copies of documents mentioned in the statement of claim to be used in evidence:
(c) witness statement on oath; and
(d) a certificate of pre -action counseling.

Held: Unanimously dismissing the appeal.

The following issues were raised and determined by the Court of Appeal.

On whether subsisting right of occupancy can be invalidated by grant of subsequent right of occupancy over same land:
Where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land is invalid. Put differently, the mere grant of a right of occupancy over an existing right of occupancy or interest, does not amount to the revocation of such existing interest. In the instant case, the grant to the appellant of the statutory right of occupancy of the same plot by the 2nd and 3rd respondents on 2nd March 2007 during the subsistence of the 1st respondent’s right of occupancy of same was void and of no effect.

On Whom lies onus of proving assertion of revocation of right of occupancy and how to prove such assertion:
A party who asserts that the adverse party’s right of occupancy had been revoked, has the legal duty to prove the fact of such revocation. The burden of proving that a statutory right of occupancy has been revoked can be discharged by presenting evidence of the existence of a valid revocation notice, which is either an original copy or certified true copy of such notice and evidence that the holder of the right of occupancy revoked or sought to be revoked was actually personally served the notice of revocation or served by one of the means of service specified in section 44 of the Land Use Act. The revocation of a right of occupancy cannot be assumed or presumed.
It must be strictly proved by admissible evidence of a copy of the actual notice of revocation that was issued and evidence of its service in accordance with section 44 of the Land Use Act. In the instant case, in the absence of requisite evidence, it cannot be presumed from exhibit 6 that the 1st respondent’s interest in the land had been revoked and was non- existent before 3rd June 2008.

On How to prove revocation of right of occupancy:
By virtue of section 28(6) and (7) of the Land Use Act, the revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be give to the holder. The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under section 28(6) of the Act or on such later date as may be stated in the notice. So, it is only evidence of a copy of the notice of revocation issued in compliance with section 28(6) of the Act and given to the party affected by service of same on him in the manner prescribed in section 44 of the Act that can establish a person’s right of Occupancy was revoked.

On whether court can speculate on content of document not in evidence:
The content of a document not in evidence before a court cannot be assumed or speculated upon by both the court and the parties to an action. In the instant case, there was no evidence of the actual notice of revocation and its service on the 1st respondent. So, the trial court rightly refused to assume or conjecture from the non-existent letter of reinstatement of 3rd June 2008 that the 1st respondent’s right of occupancy of the disputed plot of land was revoked.

On Purpose, nature and importance of writ of summons and effect where defective:
A writ of summons is an initiating legal process by which the jurisdiction of a trial High Court can properly and validly be invoked by a person who intends to utilize the judicial process of that court to seek reliefs or remedies from the court against another person on any legal ground. It is one mode of commencing actions in the High Court that is provided for in the Rules of that court. As an initiating or originating process for the invocation of court’s jurisdiction, a writ of summons is the foundation and the process which gives life to a valid action before a High Court without which there could be no action before the court in respect of which it can properly in law, assume jurisdiction to conduct proceedings or adjudicate. A valid writ of summons is therefore one of the due processes of the law by which jurisdiction of the court can be invoked and vested in the court to adjudicate over a matter. It is thus a sine qua non to the assumption of the requisite jurisdiction by a court to entertain or adjudicate over a matter commenced by that process. Any material and fundamental defect in a writ of summons would affect its validity and thereby be rendered legally incapable of invoking the requisite jurisdiction of the court to adjudicate over it.

On Effect of court official’s failure to sign writ of summons:
The failure to sign a writ of summons by the person or officer required by the rules of court to sign it is a mere irregularity that cannot vitiate the writ of summons.

On when to apply to set aside court process for irregularity:
By virtue of Order 2 rule 2 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004, an application to set aside a court process for irregularity should be filed within a reasonable time before the applicant takes any fresh step after noticing the irregularity. In effect, the rule bars a party from making a complaint about a procedural error after such party has taken a step in the proceedings after becoming aware of the error. In the instant case, the appellant, upon being served the writ of summons, filed and argued a notice of preliminary objection on the ground that the writ of summons was not served on him personally, but he did not include the non-signing of the writ of summons by the plaintiff’s legal practitioner as a ground for the objection. Further, the appellant filed his pleadings and presented evidence in support of his defence. It was in his final written address after the conclusion of trial that he made the application to set aside the writ of summons for irregularity on the ground that it was not signed by the plaintiff’s legal practitioner. In the circumstances, assuming it was a requirement of the rules of the trial court that the writ of summons be signed by the 1st respondent’s legal practitioner who presented it for filing, the appellant could no longer object to the validity of the writ of summons on the ground that it was not signed by the legal practitioner.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.