PROPERTY NEWS

FAILING to find merit in the argument put up by Federal Capital Development Authority (FCDA) and the Federal Capital Territory Minister, an Abuja High Court has declared null and void the purported revocation of a property located within the neighborhood of Aso Rock Presidential Villa, Abuja.

The nullification order came through a judgment recently delivered by Justice S.E. Aladetoyinbo in a suit brought by one Alhaji Idris Zago against the minister, Federal Capital Territory (FCT), FCDA and Abbas Balarabe Lawal. All three were named in the suit as first, second and third defendants respectively.

Zago, to whom the landed property was originally allocated, had sought the court's intervention through his attorney, Dr. Taiwo Malumi, following a revocation order issued on the property, which was later relocated to the third defendant, Lawal, who was then Chief of Staff to the erstwhile FCT Minister, Malam Nasir El-Rufai.

Malumi had earlier approached the court to wade into the matter, but he lost because he commenced the matter in his name. While striking out the suit, the court had held that, he, Malumi, should have initiated the suit in the name of Zago, the present plaintiff in this case.

He commenced the suit by an amended originating summons, in which he claimed five reliefs against the defendants. These are:

( A declaration that by virtue of the subsisting right of occupancy contract, the plaintiff is the lawful holder entitled under Section 5(1) of Land Use Act to statutory Certificate of Occupancy over the land, comprising Plot 852 Cadastral Zone A04 Asokoro District, Abuja (Municipal called Plot 62 Ali Akilu Crescent, Asokoro, Abuja) same having been originally earlier allocated to him by the first defendant in replacement of an earlier grant;

( a declaration that the purported revocation, re-allocation and issuance of Certificate of Occupancy by the first defendant (during the Mallam EI-Rufai dispensation) to the third defendant (then FCT Chief of Staff) of the said land originally allocated to the plaintiff, being Plot 852 Cadastral Zone A04 Asokoro District, Abuja is arbitrary, oppressive, illegal, ultra vires, null and void, being contrary to sections 28, 44 and 51 of the Land Use Act;

( an order canceling and or setting aside the purported revocation, reallocation and issuance of certificate of occupancy over the said plot by the first defendant to the third defendant, being in brazen disregard of the subsisting right of occupancy earlier granted to the plaintiff;

( an order granting/restoring possession to the plaintiff and compelling the first and second defendants to issue the plaintiff a re-certified statutory Certificate of Occupancy (in pursuance of the said earlier right of occupancy contract) over the subject plot'; and,

( an order of injunction jointly and severally restraining the defendants, their agents,' servants, privies or workmen from further building operations, entry or interference with the said plot.

The plaintiff further sought for the determination of the following questions:

( Whether the first and second defendants were entitled within the purview of Sections 5(1), 28, 44,51 of the Land Use Act to re-allocate the rest to the third defendant during the subsistence of their earlier allocation to the plaintiff?

( whether the purported re-allocation of the res to the third defendant is valid and legally sustainable without prior revocation of the plaintiff's interest in the manner provided in Sections 28, 44, 5 I of Land Use Act? and,

( whether the purported revocation and re-allocation of the res to the third defendant, a private developer; was, for "Public Purpose" as envisaged under Section 28 of the Land Use Act and whether the res is a developed land within the context of Section 5 I of the Land Use Act as at the time of the purported re-allocation to the third defendant in 2006?

The first and second defendants filed two preliminary objections, which border on the locus standi of the plaintiff and res judicata to the originating summons of the plaintiff. The two defendants also filed a five-paragraph counter-affidavit to the originating summons attaching three exhibits.

Though, the third defendant filed a preliminary objection to the originating summons of the plaintiff, he did not file any counter-affidavit.

On the objection of locus standi, the court held: "It is hereby confirmed that the plaintiff has locus standi and the preliminary objection that the plaintiff has no locus standi is hereby dismissed."

On the second leg of res judicata, the court said: "The fact that the ruling of His Lordship had been adjudged as final decision by this court does not affect the validity of the present suit, in other words, the finality of the said ruling does not affect the validity of the present suit...the issue of res judicata raised by the two counsels must fail, same is hereby dismissed."

Nullifying the re-allocation, Justice Aladetoyinbo said: "I have no doubt in my mind that the third defendant has a constitutional right to be allocated a land in the FCT, but not in this manner. It is against public policy for a sitting minister to revoke a right of occupancy of another citizen of Nigeria and re-allocate same land to his Chief of Staff, senior aid and crony just because the land is "juicy" and located a few blocks from the main gate of the Aso Rock Presidential Vila.

"This is a naked abuse of power, reminiscence of stone age behaviour where might is right. This kind of crude behaviour cannot happen in any civilised world, and for the reason that the revocation of the right occupancy of the plaintiff is gross abuse of power, same cannot stand, this is enough reasons to set same aside, the revocation of the plaintiff's right of occupancy by the first defendant as evidence by Exhibit 'B' attached to the counter-affidavit of the first and second defendant is hereby set aside, the revocation exhibit B is hereby declared null and void.

"The re-allocation of the plaintiff's land to third defendant is not only an abuse of power but equally fraudulent, when the right of occupancy of the plaintiff was revoked by defendant, same land was allocated to Jamilu Mohammed and revoked and later allocated to Ramatu Alhassan and revoked (again) before finally allocated to third defendant; this was done to deceive the public, particularly the plaintiff. The third defendant by accepting the allocation of the said land held himself out as an accomplice to fraud. For this reason, the court will not allow the third defendant to benefit from his own fraud."

Holding that the plaintiff is the owner of the land and the structures thereon, the trial Judge said: "By the operation of the legal maxim of latin quic quic plantatur solo solo cedit, all the houses built on Plot 852 by the third defendant belong to the plaintiff because the plaintiff had been adjudged by this court to be a holder of right of occupancy to same land," adding that if the plaintiff wished to demolish the houses on the site, the cost of the demolition will be paid by the third defendant.

In addition, the court also restrained all the defendants, with their servants, privies, agents, or any other person or person(s) claiming on their behalf from further entering or interfering with the landed property.