By Emmanuel Badejo
NICON Insurance Corporation Plc has gotten the backing of a Court of Appeal, Ilorin Judicial Division, to raise fresh issues in a land matter involving it and the Kwara State Government.
However, the victory was not on the whole appeal initiated by NICON against the Governor, Kwara State, Attorney General, his counterpart, Commissioner for Land and Housing, Kwara State and the Registrar of Titles, Kwara State.
The appellant filed an application at the Court of Appeal seeking an order granting him leave to raise new points of law for the determination of the appeal, to wit: “Whether the acceptance of the payment of ground rent does not amount to waiver of the right of the Governor to revoke the respondent’s right of occupancy.
Whether the Governor has the right to revoke the right of occupancy for failure to develop or effect improvement on land without fixing a penal rent.”
The appellant contended that the new points sought to be raised in the appeal were issues of law, which could be taken for the first time on appeal as all the materials to be used for the determination were before the court. It also added that, it would be in the interest of justice for the court to grant the application.
Responding, in opposing the application, the state government argued that the issues sought to be raised were not raised at the trial court.
The respondent further contented that the new issues were of mixed law and facts and therefore further or additional evidence would be required to determine them.
From the record before the court and the new issues sought to be raised, the applicant wanted the court to determine the effect of the respondents’ acceptance of his arrears of ground rent on their revocation right.
Secondly, the interpretation of the document attached to the Certificate of Occupancy in relation to the fixing of penal rent and certificate of occupancy on the other hand.
Some documentary evidence were placed before the court including a demand of notice on outstanding ground rent and evidence of payment of the areas of the ground rent demanded,renovation of statutory right of occupancy No. KW.3662.
According to the Court of Appeal, the fact that the respondents granted the applicant a certificate of occupancy was not in dispute and that the application was in arrears of ground rent and paid up after the respondents made a demand was also not in controversy.
Then again, that after the payment of the arrears of ground rent, the respondents revoked the applicant’s certificate of occupancy was not an issue.
The new issue the applicant wanted to raise as per prayer 1 (a) of his application was, whether the state government by accepting the arrears of ground rent form it did not waive their right to revoke his certificate of occupancy?
“This issue in my humble understanding calls for the application of the principles of waiver to the undisputed facts that, the applicant paid his arrears of ground rent upon demand, the respondents accepted the payment and thereafter revoked his certificate of occupancy.
I hold the view that the application of the principles of waiver on the undisputed facts before the court is a question of law. For that, the new issue sought to be raised in prayer (a) which I have held is an issue of law can be raised in this court for the first time with leave.”
On the second issue, the Appellate Court the other new issue sought to be raised was premised upon the interpretation of the document titled “Notes for the guidance of Holders of Certificates of Occupancy.
The court added that the new issue sought to be raised does not require further or additional facts and evidence for its determination since it merely sought the interpretation of a document.
“From the record, all the materials necessary for the determination of the new issues sought to be raised by the applicant in this appeal are in the record. The new issues sought to be raised are therefore such allowed in law to be raised on appeal for the first time with leave of the court.
From what I have said above, I hold that this application has merit. The same is granted in the following terms.
Leave is hereby granted the applicant to raise a argue new issues or points of law for the determination of appeal N. ca/IL/136/2014.
It is ordered that the new issues or points to be raised shall be as prayed on the face of the motion paper to wit.” No order was made as to cost.