Can the FCT minister revoke a statutory right of occupancy over non-development?

BY JAMIU AGORO AND MUHAMMED ADEDIJI

It is no longer news that the federal capital territory (FCT), Abuja, has a new sheriff in town. Since assuming office as the FCT minister, Nyesom Wike, CON has without a doubt taken calculated steps aimed at overhauling the FCT and restoring the Abuja Master Plan.

Of importance to this article is the statement released on Thursday, September 21, 2023, by the FCT permanent secretary, Olusade Adesola (“the statement”), wherein it was disclosed that the honourable minister had; in exercise of the powers conferred on him by Section 28 (5)(a) and (b) of the Land Use Act, 1978 (“the Act”), revoked the certificates of occupancy over 167 plots of land located in the various districts of the FCT including Maitama, Gudu, Wuye, Katampe Extension, Wuse 2, Jabi, Utako, Idu Industrial Zone, and Asokoro districts of Abuja. According to the referenced statement, the revocation was premised on the failure of the allottees to develop the revoked plots of land and/or failure to submit building plans for approval.

It is not in doubt that the act gives the governors and minister of the FCT powers in their capacity as trustees over lands within their territory, to grant statutory rights of occupancy to any person for all purposes and also to revoke same in circumstances provided by the act, however, this article focuses on the minister’s power to revoke such right of occupancy for non-development with a view to ascertaining whether this power is absolute or has its qualifications.

As stated earlier, the reasons provided by the FCT minister for revoking the affected lands is the “continued contravention of the terms of development of the Right of Occupancy to wit non-development”.

Let’s quickly take a tour of the act to ascertain the extent of these revocation powers. Per Section 28 (5)(a) and (b) of the act, the FCT minister is vested with the powers to revoke a granted right of occupancy on the ground of a breach of the provisions of Section 10 of the Act, which relate to payment for any unexhausted improvements existing on the land on the date of the allottee’s entering into occupation of such land and payment for ground rents on the land.

Additionally, the minister may revoke any right of occupancy on the grounds of a breach of any term contained in the certificate of occupancy or in any special contract made under Section 8 of the Act.

For ease of reference, Section 28 (5)(a) and (b) of the Act are hereunder reproduced:

28(5)- The Governor may revoke a statutory right of occupancy on the ground of-

• A breach of any of the provisions which a certificate of occupancy is by section 10 of this Act deemed to contain;
• A breach of any term contained in the certificate of occupancy or in any special contract made under section 8

Typically, certificates of occupancy issued over lands in the FCT contain a clause requiring an allottee to, within a specified number of years from the date of the commencement of the right of occupancy, erect and complete on the said land building(s) or other works specified in related plans by an approving authority. It is the author’s belief that the alleged contravention of this clause by the allottees of the affected lands formed the basis for the revocation of the lands by the FCT minister.

Whilst the act confers power on the minister to revoke any right of occupancy in the circumstances provided under Section 28, it is important to state that this power is not absolute but in line with the procedure laid down in the same act that confers the power. The minister’s power to revoke any right of occupancy on the ground of contravention of any term contained in the certificate of occupancy is subject to the conditions stipulated in section 28(6) of the act, which require a prior notice of the revocation be given to the holder of the right of occupancy sought to be revoked. For ease of reference, the provision of section 28(6) of the act is hereunder reproduced.

“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 given to the holder.”

To further strengthen the provision of section 28(6) of the act, section 28(7) of the act provides that the revocation would only become effective on receipt of such notice or on such later date as may be stated in the notice.

A quick dive into our judicial precedent bank would readily reveal that our laws have concretised the foregoing provision of the act. In CIL Risk & Asset Mgt. Ltd. v. Ekiti State Govt. (2020) 12 NWLR (Pt. 1738) 203, the supreme court lending its voice to the importance of prior notice to the holder of the right of occupancy destined for revocation held that the purpose of giving notice of revocation of a right of occupancy is to duly inform the holder thereof of the steps being taken to extinguish their right of occupancy and to afford them an opportunity to be heard on the proposed revocation of their title. The importance of the prior notice cannot be overemphasised.

It is instructive to point out that the minister does not have the discretion to serve the notice of revocation as he deems fit. The same has to be done in strict compliance with the procedure and/or manner enunciated in the Act. For ease of reference, section 44 of the Act provides thus:

“Any notice required by this Act to be served on any person shall be effectively served on him-

• By delivering it to the person on whom it is to be served; or
• By leaving it at the usual or last known place of abode of that person; or
• By sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; or
• 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 of that office…”

As could be gleaned from the foregoing provision, the service of the notice must be in accordance with section 44 of the act, which requires the notice to be served in any of these alternative ways, to wit, by delivering the notice of revocation to the person on whom it is to be served, by leaving the notice at the usual or last known place of abode of that person, by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode, or in the case of an incorporated company or body, at its registered or principal office, or by sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office.

The requirement of service of the notice of revocation on a holder of a right of occupancy in the manner stipulated by the act is sacrosanct and requires strict compliance. Our judicial precedent bank is not starved of judicial pronouncements in this regard. In Orianzi v. A-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224, where a notice of revocation was not served on the appellant but published in a gazette, the court declared that the publication only served as a constructive notice to the whole world and fell short of the requirement of the act, which requires personal service of the notice on the holder of the right of occupancy sought to be revoked.

Having unveiled what our jurisprudence holds on the revocation of rights of occupancy and notice to the holder of such rights, it is safe to say that unless prior notice of revocation was issued individually to the concerned 167 allottees whose rights of occupancy were revoked by the statement, it is the writer’s view that the statement merely constitutes a constructive notice and heavily falls short of the combined provisions of sections 28(6), (7), and 44 of the Land Use Act. The writer’s opinion finds support in the case of Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36.

It is trite that once the law prescribes a particular procedure upon which an act should be carried out, that procedure must be adopted in carrying out the act without deviation no matter how slight. Since revocation of a right of occupancy deprives the holder of his proprietary right, notice of revocation of title and personal service of such notice to the holder are two mandatory requirements that have to be strictly complied with.

It does not matter that the act of revocation is justified. If the procedure adopted in revoking the affected plots does not follow due process, the revocation will be declared null and void by a competent court.

It is commendable that the FCT minister is taking bold steps towards restoring the Abuja Master Plan and sanctity to the federal capital territory. However, it is hoped that service of revocation notices were duly issued and personally served on the affected allottees in the manner prescribed by the act prior to the public notice issued on September 21, 2023.

In the event that no such prior notice was personally served on the affected allottees, the writer fears that the failure would open a floodgate of litigation; which would undoubtedly result in the court setting aside the revocation for being null and void.

Agoro, MCIArb., is an associate partner at Pinheiro LP, while Adediji, Esq. is an associate at the same law firm.

Please note that the opinions expressed in this article are the opinions of the writers and do not serve as legal advice. Please consult with a legal practitioner to obtain proper legal advice.