EKWEKWUO & ANOR v. ABDULLAHI & ORS (2020)

EKWEKWUO & ANOR v. ABDULLAHI & ORS

(2020)LCN/14674(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, October 20, 2020

CA/A/674/2014

RATIO

LAND LAW: APPLICATION OF THE LAND USE ACT ON THE FEDERAL CAPITAL TERRITORY

Sections 1 and 2 of the Land Use Act of 1978 state thus:
Section 1
Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation is hereby vested in the Governor of that State, and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.
Section 2
(1) As from the commencement of this Act.
(a) all land in urban areas shall be under the control and management of the Governor of each State; and
(b) all other land shall, subject to this Act, be under the control and management of the local government within the area of jurisdiction of which the land is situated.
Sections 299 (a), 302, 303 of the 1999 Constitution
Section 299 (a)
The provision of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly –
(a) all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the Courts of a State shall, respectively, vest in the National Assembly, the President of the Federation and in the Courts which by virtue of the foregoing provisions are Courts established for the Federal Capital Territory, Abuja;
Section 302
The President may, in exercise of the powers conferred upon him by Section 147 of this Constitution, appoint for the Federal Capital Territory, Abuja a Minister who shall exercise such powers and perform such functions as may be delegated to him by the President, from time to time.

Section 303
The Federal Capital Territory, Abuja shall comprise six area councils and the administrative and political structure thereof shall be as provided by an Act of the National Assembly.
Section 18 of the FCT ACT CAP 503
As from the 28th May, 1984, the President has delegated to the Minister of the Federal Capital Territory, the following functions, that is to say -(No. 6 of 1976, No. 12 of 1985)
a…
b…
c. Any function or power conferred by any law set out in the Second Schedule to this Act vested in the Governor or Military Governor of a State.
By Part II of the First Schedule to the Constitution, Gwagwalada is the 4th of the Area Councils in the Federal Capital Territory. It is pertinent to note that,Section 12 (4) of the Federal Capital Territory Act – Subsidiary Legislation Cap 503 states that:
“Executive authority in the Territory, conferred by the Constitution of the Federal Republic of Nigeria 1999, is hereby delegated to the Minister, who shall be the Chief Executive Officer of the Territory, accountable to the President.”
Subsection (5) thereof provides that the Minister shall:
“Delegate as much of his powers as he deems fit to the said Chief Executives of the Secretariats and Agencies to do all such things as necessary to ensure the due and prompt execution of their assigned functions, powers and responsibilities.” PER WILLIAMS-DAWODU, J.C.A.
CONSTITUTIONAL LAW: POWER OF THE FCT MINISTER

As contained in Section 299 (a) of the 1999 Constitution, the FCT Minister by virtue of Sections 147 and 302 of the Constitution, shall exercise the powers donated to the President in respect of the FCT. Such powers include those which have been clearly described and shared under Section 2 of the Land Use Act. Subsection 1 (b) thereof states that, as in every other State of the Federation in the FCT, “all other lands shall” be “under the control of and management of the local government” one of which by law is the Gwagwalada Area Council, being one of the six (6) Area Councils in the FCT Abuja, as correctly found by the Court on page 190 of the Record. PER WILLIAMS-DAWODU, J.C.A.
EVIDENCE: PROOF OF MATTER IN CIVIL CASES

It is trite and settled that in civil cases, proof of a matter is on the party who asserts a fact, he has to prove same and the standard of proof is the preponderance of evidence or the balance of probabilities. see the cases of LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228, DAODU V. NNPC 1998 2 NWLR PT. 538 P. 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 P.1 and ITAUMA V. AKPA-IME 2000 7 SC PT. 11 24. A Claimant is not allowed in law to rely on the weakness of the opposite party in order to succeed, but has to rely on the strength of his own case. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65. PER WILLIAMS-DAWODU, J.C.A.

LAND LAW: WAYS OF PROVING TITLE TO LAND

The Courts over time, with regard to issue of ownership and title to land, have continued to guide and assist themselves with five (5) recognized methods of proving ownership as enunciated in the locus classicus case of IDUNDUN V. OKUMAGBA 1976 6-10 SC 246 amongst several others, in pursuit of doing substantial justice in land matters. The five methods are as follows:
1. Traditional Evidence
2. Document of Title
3. By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership.
4. By acts of lawful enjoyment and possession of the land and
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, own the disputed land. PER WILLIAMS-DAWODU, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. CHIEF CHIBUZO EKWEKWUO 2. YAKUBU ABBA APPELANT(S)

And

OJONIMI ABDULLAHI 2. OLISA B. ELENDU 3. THE MINISTER OF THE FEDERAL CAPITAL TERRITORY (FCT) 4. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 5. FEDERAL MINISTRY LANDS, HOUSING & URBAN DEVELOPMENT RESPONDENT(S)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the Judgment of the High Court of the Federal Capital Territory, Abuja, in Suit No. CT/HC/CV/925/2011 delivered on May 23rd, 2014 by His Lordship, M. Balami J. wherein the Court found in favour of the 1st and 2nd Respondents herein (the 1st and 2nd Plaintiffs at the Court below). Judgment was entered in respect of their reliefs (a) to (c), in the main, the grant of the land in issue and general damages in the sum of Five Million Naira only against the Appellants (the 5th and 7th Defendants at the Court below).

Hereunder are the reliefs sought at the Court below:
1. A declaration that the Plaintiff is the bonafide owner of Plot No. 32 SSQ 204B Phase 1 Gwagwalada Abuja FCT, haven purchased the said plot from the original Allotee of the property through a Power of Attorney and therefore in possession of the original Certificate of Occupancy (Customary) No. FCT.CA/RLA/AN/726.
2. A Declaration that the 2nd and 3rd Defendants purported allocation of Plot No. 32 SSQ 204B Phase 1 Gwagwalada Abuja FCT to the 4th Defendant is null, void and illegal.

An order of Perpetual Injunction restraining the Defendants from disturbing the Plaintiff’s quit (sic) and peaceful enjoyment, possession and development of the Plot No. 32 SSQ 204B Phase 1 Gwagwalada Abuja FCT (sic) to the 4th Defendant is null, void and illegal.
4. General damages of (Fifty Million Naira) for trespass to Land.
5. Substantial Cost of this action.

The gist of what culminated into the instant appeal is that, the 1st Respondent vide his Writ of Summons filed January 10th 2011, instituted an action against the 1st Appellant, 3rd to 5th Respondents and claimed as afore stated. The 1st Appellant counter-claimed against the 1st Respondent. The 2nd Respondent was joined to the Suit as a co-Plaintiff on the ground that he was the grantee of the land with the Certificate of Occupancy (Customary) No. FCT/CA/CAC/RLA/AN/726, Exhibit A2. The 2nd Appellant sought to be joined as 7th Defendant and was so joined. The matter went to trial and the Court found at the end of the day in favour of the 1st and 2nd Respondents.

The 1st Respondent’s case is that the Gwagwalada Area Council granted a Certificate of Occupancy

(Customary) No. FCT/CA/CAC/RLA/AN/726, Exhibit A2, to the 2nd Respondent, from whom he bought the property in issue, plot No. 32SSQ 204B Phase 1 Gwagwalada Abuja FCT, and the 2nd Respondent executed a Power of Attorney, Exhibit A1, in his favour in 2001. That, he erected a fence around it but found that the 1st Appellant about November 2010, encroached on his land and commenced a building thereupon. The 1st Respondent in consequence commenced the suit at the Court below.

On the other hand, the Appellants’ position is that the property is within the Federal Low Cost Housing Estate, established as part of the Federal Government Mass Housing Project in the 1980s, administered by then Federal Ministry of Housing and Environment now, Federal Ministry of Lands, Housing and Urban Development. That, it was originally allocated to the 2nd Appellant who sold same to the 1st Appellant and the payment evidenced in a Power of Attorney between the Appellants. Therefore, the 1st Appellant is the owner in possession of the property which is properly described as House/Plot No. 22, M Street, Federal Low Cost Housing Estate, Gwagwalada, Abuja and not Plot No. 32SSQ Phase 1, Gwagwalada, Abuja FCT.

Being dissatisfied with the Judgment of the Court, the Appellants vide their amended Notice of Appeal dated September 2nd 2016, filed September 5th, 2016, which was deemed October 17th, 2016, with ten (10) grounds of appeal have approached this Court and are seeking the following reliefs:
a. The appeal be allowed
b. The decision of the High Court of the FCT, Abuja in Suit No. FCT/HC/CV/925/2011 and contained in the judgment of Hon. Justice M. Balami sitting at Court 8 delivered on 23rd day of May, 2014 awarding the land in dispute to the 1st and 2nd Respondents and damages of N5,000,000.00k to the 1st Respondent against the 1st Appellant be set aside.
c. The case of the 1st and 2nd Respondents be dismissed.
d. Judgment be entered in favour of the 1st Appellant in terms of the reliefs claimed in his Counter-claim.
e. Substantial cost be awarded against the 1st & 2nd Respondents.

Briefs of argument were filed and exchanged by the parties according to the Rules of this Court.

The Appellants’ amended brief of argument which was settled by G. N. Chigbu Esq., dated September 2nd, 2016, filed

September 5th, 2016, was deemed as properly filed and served on October 17th, 2016. The 1st and 2nd Respondents’ dated October 13th, 2016 and filed same date was settled by E. B. Ochuma Esq., and in response thereto, the Appellants on December 22nd, 2016 filed a Reply dated December 21st, 2016.

On September 7th, 2020, at the hearing of the appeal, learned Counsel for the Appellants, Mr. Chigbu Esq., adopted the Appellants’ brief of argument as well as the Reply to the Respondent’s brief and urged that the decision of the Court below be set aside and the appeal be allowed. Mr. Ochuma Esq., adopted the 1st and 2nd Respondents’ brief and urged that this appeal be dismissed.
Each of the parties submitted Issues for determination as follows:
ISSUES BY THE APPELLANTS
i. Whether the document titled “Certificate of Occupancy (Customary)” with No. FCT/GAC/RLA/AN/726 issued to the 2nd Respondent and the right it purports to confer on the 2nd Respondent are known to law as is applicable in the FCT, Abuja and can stand as a valid root of title on the basis of which the title to land in dispute can be awarded to 1st and 2nd Respondents (Grounds 1, 5 and 6).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether the Chairman of Gwagwalada Area Council, FCT Abuja is under the supervision and control of the FCT Minister and can whether alone or acting together with the Zonal Land Officer validly issue Exhibit A2 to the 2nd Respondent for or on behalf of the FCT Minister (Grounds 2 and 3).
iii. Whether Exhibit A1 (1st and 2nd Respondents’ power of attorney) can stand as 1st Respondent’s root of title to the land in dispute (Ground 4).
iv. Whether the 1st and 2nd Respondents proved the identity of the land in dispute (Ground 7).
v. Whether having not proved exclusive possession or legally cognizable interest (sic) land in dispute, the lower Court was right in awarding damages in the sum of against the 1st Appellant to the 1st Respondent (Ground 8).
vi. Whether the Appellants proved their ownership of the land in dispute (Grounds 9 and 10).

ISSUES SUBMITTED BY THE 1ST AND 2ND RESPONDENTS
a. Whether the trial Court was right to hold that the 1st and 2nd Respondents have better prove (sic) of the identity of the land via FCDA Survey plan against the Appellants very vague and uncertain title claim.
b. Whether the trial Court

was right to hold that the Power of Attorney relied on by the 1st and 2nd Respondents carries more weight than the Appellants unsigned power of attorney marred with various irregularities and inconsistencies in the overall circumstances of this case.
c. Whether the lower Court was right to have awarded damages against the Appellant/trespassers who flagrantly ignored a restraining Court order, continued to build throughout the case, completed, and rented out same lis pendens?
d. Whether the trial Court was right to declare the 1st and 2nd Respondent (sic) owners of the land, the Appellant haven failed to prove better title and possession?
e. Whether the trial Court was right to hold that employees/officers of the Minister/Federal Capital Development Authority working in various FCDA offices in the Area councils can validly allocate land on behalf of the minister?

Carefully perusing the printed Record before this Court, together with the foregoing sets of Issues by both sides, one is inclined to adopt the Issues submitted by the Appellants for the determination of this appeal, they being the complainants herein and satisfied that, a just

and fair determination of this appeal will be reached thereby.

APPELLANTS’ SUBMISSION
Mr. Chigbu Esq., learned Counsel for the Appellants, submitted that, the Certificate of Occupancy (Customary), Exhibit A2, is unknown to law, could not be a valid root of title, therefore, invalid, null and void and that the Court was wrong to have found in favour of the 1st Respondent. That, such certificate is in respect of customary right of occupancy which was issued by the Gwagwalada Area Council as of right not as an agent of the Minister of the Federal Capital Territory (FCT), Abuja. Further that, the Court ought not, without any legal basis, to have taken judicial notice of both the Chairman, Gwagwalada Area Council and the Zonal Land Officer as officers of the Minister of the FCT and that they acted on the Minister’s behalf in the allocation of the land. He argued that, by Section 299 of the 1999 Constitution, the FCT is seen as a State and the powers exercisable by a Governor therein is vested in the President which are statutorily delegated to the FCT Minister by Section 18 of the FCT Act which includes the power to grant statutory rights of occupancy over

lands in the FCT and certificates of occupancy in respect of same. He submitted that, the right of the Governor to grant statutory right of occupancy and the right of a Local Government to grant customary right of occupancy are mutually exclusive and that, the Governor and the Local Government cannot jointly grant any of the rights of occupancy as there is no hybrid right of occupancy. He argued that, Gwagwalada Area Council was at no time designated as a rural area or non-urban area, therefore, the Gwagwalada Area Council and the Chairman went outside their scope of authority in the allocation of a customary right of occupancy as in Exhibit A2, which for that reason, is null and void. In support, he cited the cases of ADISA V. OYINWOLA 2000 10 NWLR PT. 116 164, AUTA V. IBE 2003 13 NWLR PT 837 247, LAWSON V. AFANI CONT. CO. LTD. 2002 2 NWLR PT. 752 585, ONA V. ATENDA 2000 5 NWLR PT. 656 244 and MADU V. MADU 2008 6 NWLR PT. 1083 293. That, the Court failed to have interpreted the document strictly for what it was, a grant of a customary right of occupancy over a plot of land in Abuja. And that the Chairman of Gwagwalada Area Council is not under the supervision

or control of the FCT Minister as the Council represents a separate tier of government. He contended further that, even if the Chairman were to have acted on behalf of the Minister, FCT, the certificate of occupancy, (Customary) is void by virtue of Section 26 of the Land Use Act as the FCT Minister can only grant a statutory right of occupancy over land in the FCT, Abuja, not a customary right.

On the root of title of the 1st Respondent, the learned Counsel argued that, Exhibit A1, an unregistered power of attorney, without the purchase price is of no moment as it cannot by law transfer title or interest in land not being an instrument recognized for that purpose and cited in support the cases of OLORUNFEMI V. N.E.B.LTD. 2003 5 NWLR PT. 812 1 and GREGORY OBI UDE V. CLEMENT NWARA 1993 2 NWLR PT. 278 638. However that, where it contains purchase price, acknowledgment of payment with possession, it serves to confer equitable interest which can be converted into legal interest and cited the cases of ATUFE V. OGHOMIENOR 2004 13 NWLR PT. 890 327, ADESANYA V. ADERONMU 2000 9 NWLR PT. 672. Therefore, no equitable interest was conferred on the 1st Respondent,

he submitted. The Court was therefore wrong to have given effect to Exhibit A1 as root of title for the 1st Respondent. Therefore the 1st Respondent in that regard failed to establish any legal or equitable interest in the land and should not have been declared the owner, he added.

He argued that, since the survey plan attached to the certificate of occupancy of the 1st and 2nd Respondents was not counter-signed by the Surveyor-General of the Federation, it was invalid as well as inadmissible and cited the case of LAWSON V. AFANI CONT. CO. LTD. supra. Therefore that, the 1st Respondent failed to prove his case and it should have been dismissed on the authority of ONWUCHEKWA V. EZOGU 2002 18 NWLR PT. 799 333.

The learned Counsel submitted that, since the 1st and 2nd Respondents failed to prove title to the land, exclusive possession to same or any loss suffered could not be inferred and the Court was wrong to have awarded any damages in favour of the 1st Respondent. That, they failed to rebut the fact that the land in dispute belonged to the Federal Government under the Federal Ministry, thereby, were deemed to have admitted the fact which is to the

effect that, Gwagwalada Area Council had no right to allocate the land in dispute, being within the Federal Government Housing Estate.

In conclusion, he urged that all the Issues be resolved in favour of the Appellants, the appeal be allowed and the judgment of the Court below be set aside.

1ST AND 2nd RESPONDENTS’ SUBMISSION
The learned Counsel for the 1st and 2nd Respondents, Mr. Ochuma Esq., submitted that, the Respondents proved the identity of their land by a survey plan prepared by a Surveyor of the Federal Capital Territory Administration and that the title deed, plan and beacon numbers all form part of Exhibit A2, while the Appellant failed woefully to prove the identity as he tendered nothing. That, the 1st Respondent took possession based on the details contained in Exhibit A2 and cited the cases of UDEZE V. CHIDEBE 1990 1 NWLR PT. 125 141 and BARUWA V. OGUNSOLA 1938 4 WACA 159. He submitted that, the argument that the survey plan attached to Exhibit A2 must be counter-signed by the Surveyor-General before it can be admissible, is grossly misconceived and it was sufficient that the plan was prepared by the government surveyor who is

under the supervision of the Surveyor-General. In support, he cited the cases of ALHAJI ADELODUN UMORU & ORS V. ALHAJI MEMUDUN JIMOH ORIRE & ANOR. CA/IL/16/2009 2010 LPELR-9065 CA, CHIEF S. OWOOLA LANLEHIN V. KOLA JAMES 1985 NWLR PT. 6 262 and ALHAJI A. ALIYU V. DR. JOHN ADEWUNMI SODIPO 1994 5 NWLR PT. 342 1.

The learned Counsel submitted that, the two (2) cases, EMMANUEL ATUFE V. EFEMINI OGHOMIENOR 2004 13 NWLR PT. 890 and ADETUTU ADESANYA V. ALHAJI S.D. ADEROUNMU & ORS 2000 9 NWLR PT. 672 370 cited by the Appellants to the effect that, the 1st and 2nd Respondents’ Power of attorney were not supportive of their case, are misleading and wrongly applied, as no power of attorney was tendered or mentioned nor considered therein and cited instead the case of UDE V. NWARA & ANOR. 1993 2 NWLR PT. 278 638.

He asserted that, the Appellants were in contempt of the orders of the Court having been found to be trespassers on the land in issue as the 1st Appellant continued building throughout the case and completed same, a fact not denied by the 1st Appellant. That, the Court was right to have awarded damages against the Appellants having found

in favour of the 1st and 2nd Respondents and cited in support the case of MR. EMMANUEL ADENIRAN V. MR. EMMANUEL ALAO & ANOR 2001 12 SC PT. II 59.

He argued that, the Court was right to have taken judicial notice that, since the creation of the FCT, Abuja, Area Councils allocate land within their jurisdiction through the Zonal Land Officer on behalf of the Minister of the FCT, and to have relied on the 1st and 2nd Respondents’ title documents and found in their favour. He submitted that, according to Section 18 of the Federal Capital Territory Act, the Area Council properly issued certificate of occupancy on behalf of the Minister. The learned Counsel asserted that, Exhibit D1 was neither issued by the Minister of the Federal Capital Territory nor issued by the Ministry of the Federal Capital Territory, consequently, Exhibit D1, which was back dated for the purpose of the case is void ab initio and the Court was right to have so held. That, mere stating that all lands in the Federal Capital Territory belongs to the Minister of the Territory does not suffice as proof without credible evidence. In conclusion, he urged that this appeal be dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It is necessary at this point to note that, the 1st and 2nd Respondents’ brief of argument does not contain pages 20, 21 and 22, it jumps from page 19 to 23, which is tardy and such carelessness should be avoided.

RESOLUTION BY THE COURT
I have very carefully considered the submissions on behalf of the parties in their respective briefs as well as the printed Record before this Court and having so carefully done; I proceed in the determination of this appeal by considering the Appellants’ Issues as adopted, (i) and (ii) together, (iii), (iv), (v) and (vi) together.
For ease of reference, Issues (i) and (ii) are hereunder reproduced:
ISSUES (I) AND (II)
i. Whether the document titled “Certificate of Occupancy (Customary)” with No. FCT/GAC/RLA/AN/726 issued to the 2nd Respondent and the right it purports to confer on the 2nd Respondent are known to law as is applicable in the FCT, Abuja and can stand as a valid root of title on the basis of which the title to land in dispute can be awarded to 1st and 2nd Respondents.
ii. Whether the Chairman of Gwagwalada Area Council, FCT Abuja is under the supervision and control of the FCT

Minister and can whether alone or acting together with the 2nd Zonal Land Officer validly issue Exhibit A2 to the 2nd Respondent for or on behalf of the FCT Minister.

The position of the 1st and 2nd Respondents which the Court found in favour of, was that the 2nd Respondent was allotted plot No. 32SSQ 204B Phase 1 Gwagwalada Abuja FCT, with a Certificate of Occupancy, Exhibit A1, issued in his favour and he in turn, through, Exhibit A2, power of attorney, sold the property to the 1st Respondent.
The provisions of the Constitution of the Federal Republic of Nigeria, 1999, the Land Use Act and the Federal Capital Territory Act are relevant and necessary for the determination of this appeal.
Sections 1 and 2 of the Land Use Act of 1978 state thus:
Section 1
Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation is hereby vested in the Governor of that State, and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.
Section 2
(1) As from the commencement of this Act.
(a) all land in

urban areas shall be under the control and management of the Governor of each State; and
(b) all other land shall, subject to this Act, be under the control and management of the local government within the area of jurisdiction of which the land is situated.
Sections 299 (a), 302, 303 of the 1999 Constitution
Section 299 (a)
The provision of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly –
(a) all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the Courts of a State shall, respectively, vest in the National Assembly, the President of the Federation and in the Courts which by virtue of the foregoing provisions are Courts established for the Federal Capital Territory, Abuja;
Section 302
The President may, in exercise of the powers conferred upon him by Section 147 of this Constitution, appoint for the Federal Capital Territory, Abuja a Minister who shall exercise such powers and perform such functions as may be delegated to him by the President, from time to time.

that the Minister shall:
“Delegate as much of his powers as he deems fit to the said Chief Executives of the Secretariats and Agencies to do all such things as necessary to ensure the due and prompt execution of their assigned functions, powers and responsibilities.”
It is necessary in the determination of Issues (i) and (ii) to explain and with the provisions of the relevant laws afore stated, the workings of some Government set up in the FCT, to some extent as relates to this appeal. The Satellite Towns Development Agency and the Abuja Geographic Information Systems Agency (AGIS) created under Section 12 (2) of the FCT Act – Subsidiary Legislation, are made up of eight (8) members each and one member from each of the Agencies must come from each of the six (6) Area Councils in the Territory. Gwagwalada being an Area Council is therefore represented on both Agencies by a member. The Satellite Town Development Agency comes under the Federal Capital Development Authority (FCDA) which is responsible for the planning and development of the Satellite Towns within the Territory. Gwagwalada is one of the towns designated as a Satellite Town of the

FCT, under Section 8 of the Sixth Schedule of the FCT Act Subsidiary Legislation. The AGIS also manages and administers geospatial and land matters in the FCT and from Section 12 (3) of the Subsidiary Legislation, the AGIS with Departments and Divisions exercise powers and carry out such functions and responsibilities under and as empowered by the Minister.
As contained in Section 299 (a) of the 1999 Constitution, the FCT Minister by virtue of Sections 147 and 302 of the Constitution, shall exercise the powers donated to the President in respect of the FCT. Such powers include those which have been clearly described and shared under Section 2 of the Land Use Act. Subsection 1 (b) thereof states that, as in every other State of the Federation in the FCT, “all other lands shall” be “under the control of and management of the local government” one of which by law is the Gwagwalada Area Council, being one of the six (6) Area Councils in the FCT Abuja, as correctly found by the Court on page 190 of the Record.
One has attempted from the foregoing to provide the enabling laws and explain the inter-relationship of the Government offices vis a vis the

Minister of the FCT, particularly with respect to Gwagwalada where the land in focus is situate.
Flowing from the foregoing provisions, the finding and position of the Court that, the Gwagwalada Area Council can validly allocate land which falls under Section 2 (1) (b) of the Land Use Act, in my considered view and humbly, is correct, well founded, given the clear division of such function as prescribed under the 1999 Constitution and the Land Use Act regarding the Departments and Divisions in the FCT. The property in issue is in Gwagwalada, which is one of the Satellite Towns under the Gwagwalada Area Council and not of the municipal part of the FCT. Therefore, it properly falls within Section 2 (b) of the Land Use Act and the Certificate of Occupancy (Customary) granted in respect thereof, is for the category of land in Section 2 (1) (b). It needs be recalled that, in Section 12 (5) of the FCT Act Subsidiary Legislation, the Minister is to delegate as much of his powers as he deems fit to Chief Executives of the Secretariats and Agencies for due and prompt execution of their assigned functions, powers and responsibilities which, as earlier

enumerated include management, administration and control of land and the letter of allocation. Exhibit A2, the Certificate of Occupancy (Customary) in my view and humbly, was correctly deemed given the provision of Section 9(1) of the Land Use Act to be made by the Minister of the FCT. The Court below so found and held thus on page 191 of the Record correctly:
“…. that, the Minister of the FCT operates/perform (sic) its duties through his officials which includes the zonal officers staff of the FCT/FCDA Posted to the Zonal land officer (sic) in the Area Council who performs the duties of the Minister on his behalf on his behalf, (sic) so also the Chairman of the Area Council who are under the supervision and control of the Minister of the FCT and the zonal land officers being staff of the FCT/FCDA are vested with powers to issue conveyance letter of provisional approval and in doing so it has been the practice with the FCT which this Honourable Court has taken judicial notice of same and doing so is within the ambit of the law.”
In consequence, Exhibit A2, the Certificate of Occupancy (Customary), given to the 2nd Respondent can stand as a valid root of

title on the basis of which the title to land in dispute was awarded to the 1st and 2nd Respondents. This being the position, Issues 1 and 2 are resolved in favour of the 1st and 2nd Respondents.

ISSUES III, IV, V AND VI
Whether Exhibit A1 (1st and 2nd Respondents’ power of attorney) can stand as 1st Respondent’s root of title to the land in dispute.
iv. Whether the 1st and 2nd Respondents proved the identity of the land in dispute.
v. Whether having not proved exclusive possession or legally cognizable interest (sic) land in dispute, the lower Court was right in awarding damages in the sum of against the 1st Appellant to the 1st Respondent.
vi. Whether the Appellants proved their ownership of the land in dispute.

in law to rely on the weakness of the opposite party in order to succeed, but has to rely on the strength of his own case. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P. 65.

establish his claim by preponderance of evidence, credible and cogent. The 1st and 2nd Respondents had to satisfy the Court below upon their pleadings and evidence adduced, that they were entitled to the declaration sought.
See further the cases ofADEWUYI V. ODUKWE 2005 ALL FWLR PT. 278 1100, IRAGUNIMA V. RSHPDA 2003 FWLR PT. 169, CLIFFORD OSUJI V. NKEMJIKA EKEOCHA 2009 LPELR-2816 SC and SOLOMON ECHANOM V. MRS PHILOMENA OKOTIE & ORS 2011 LPELR CA/B/247/2009.

From the Record, it is clear that the parties herein fought and pursued their cases on the production of document of title as both sides presented documents of allocation of the property as Exhibit A2, the Certificate of Occupancy for the 1st and 2nd Respondents and Exhibit D1 for the Appellants on pages 140 -142 and 144 of the Record respectively. One of the recognized methods of establishing title to land is by production of valid documents of title in evidence of the title being claimed. See the case of PIARO V. TENALO 1976 12 SC 31 and NWADIKE V. IBEKWE 1987 4 NWLR PT. 67 718. It must however be clarified and stressed that it is not settled once an instrument of title to land is presented

as an automatic proof of ownership of the land therein granted or transferred by that instrument. See the case of PRINCE NGENE V. CHIKE IGBO & ANOR 2000 4 NWLR PT. 651 131. As in the instant appeal, both sides exhibited allocation papers from their donors, from whom they both claimed to have bought the land in question and the Court on page 190 had to find who amongst the two (2) “allotees” had a valid allocation paper.

In a claim for declaratory relief such as herein, there must be proof of the identity of the land, which must be ascertained with certainty and where such is not done, the case will fail. See the cases of DIKE V. OKOLOEDO 1999 10 NWLR PT. 623 P. 359, OGUN V. AKINYELU 2004 18 NWLR PT. 905 P. 362, ELEH V. ANYADIKE 1999 5 NWLR PT. 603 P.454 and OKONKWO V. OKONKWO & ORS 2010 LPELR-SC 296/2003. Without doubt, the most common and perhaps easiest way to establish the precise area of land in dispute is by the use of a survey plan. It is however not in all cases for declaration of title to land that a survey plan must be produced or tendered, once there is no difficulty in identifying the land in question or the fact of identity is not an

issue. See the cases of ATOLAGBE V. SHORUN 1985 1 NWLR PT. 2 360, KYARI V. ALKALI & ORS 2001 LPELR-SC 224/1993 and CHIEF DANIEL IBULUYA V. DIKIBO 1976 6 SC 97. In this appeal, the 1st and 2nd Respondents presented the Certificate of Occupancy which clearly described the portion of land being claimed which was supported with an attached lay-out plan signed by a registered surveyor of the FCDA with beacon numbers therein as on pages 140 to 143 of the Record. One sees no clearer and certain description of the parcel of land in question than that. The Court was therefore right when it found that, the 1st and 2nd Respondents identified their land. It held on the other hand that, the 1st Appellant failed to prove the identity of his land since Exhibit D1, the letter of allocation, stated one bedroom house at No. 22 Street M. Gwagwalada Federal Low Cost Housing Estate and not a plot of land which was in issue.

On page 195 of the Record, the Court stated thus:
”…the 1st plaintiff in this case was able to prove the identity and certainty of the said plot of land in issue while the 5th defendant has failed to do that by both documentary and his evidence

led before the Honourable Court ….
”….in as much as Exhibit D1 is titled allocation house (sic) one bedroom located at No. 22 street M Gwagwalada Federal Low cost Housing Estate…”

Exhibit D1, letter of allocation on page 144 of the Record, tendered in evidence by the Appellants reads as follows:
“FEDERAL GOVERNMENT HOUSING PROGRAMME:
LETTER OF ALLOCATION OF SALE OF A HOUSE IN ABUJA STATE.”

The location therein stated is also Gwagwalada. As afore said, the Certificate of Occupancy of the 1st and 2nd Respondents is quite clear, referred to a piece of land particularly delineated as in the annexed plan thereto. Therefore, in my view and humbly, in order to upturn or controvert such clear and specific description of property as the Appellants attempted to do, there should have been a composite plan, to show that the land being claimed by the 1st and 2nd Respondents is the same land upon which the house allocated to the Appellants in Exhibit D1 stands. Where that is not the case, the simple conclusion based on the two documents presented is that, the allocation letter tendered by the Appellants is in respect of a different property entirely

and which of course could bring about the issue of trespass on another person’s land against the Appellants.

The 1st Respondent tendered Exhibit A2 as the root of his title, being a Power of Attorney, from the 2nd Respondent in respect of the land in dispute which in detail, described the property as contained in Exhibit A1, the Certificate of Occupancy (Customary). The Appellants argued that an unregistered power of attorney, without the purchase price and or possession cannot avail the 1st Respondent as it cannot by law transfer title or interest in land as it did not contain purchase price and acknowledgment of payment, no equitable right passed.

The power of attorney from the 2nd Respondent to the 1st Respondent, Exhibit A1, contained on pages 11-15 of the Record, states that the 1st Respondent is the lawful appointed Attorney of the 2nd Respondent, in the main, to take possession and manage or superintend the property, including the title deeds of the property, to repair etc, sell exchange, mortgage, execute, alienate the certificate of occupancy, receive all payments payable to the Donor in satisfaction of a compensation, pay cheques into

Attorney’s account, enforce remedies open to the Donor, pursue process and obtain a consent to Assign in his favour or that of another person.

The principle of law regarding the status of a power of attorney and what it entails is settled and trite as clearly explained by the apex Court as well as this Court in many judicial authorities.
The apex Court instructively, in the case of UDE V. NWARA 1993 2 NWLR PT. 277 638 held as follows:
“A Power of attorney – is not an instrument which confers, transfers limits, charges or alienates any title to the donee: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is alienation.”
This Court described it in the case of

FARMERS SUPPLY CO KDS V MOHAMMED 2009 LPELR -8196 CA thus:
”….the Respondent himself conceded that a Power of Attorney is not an instrument that transfers or alienates any title. It is merely an instrument that delegates powers to the donee to stand in the position of the donor and do the things he can do.”
It is pertinent to note that a power of attorney is not as good as a lease or an assignment whether or not it is coupled with interest. It may eventually lead to the execution of an instrument capable of transferring interest in land after the requisite consent is obtained.
It is clear from the foregoing that, the issuance of a power of attorney simpliciter, cannot transfer the title or rights over the land to the donee, it is only after the donee has utilized the power of attorney to convey the land to any person including himself that there will be alienation. See the cases of MURPHIS BURGER LTD. & ANOR. V. THOMAS & ORS 2019 LPELR-47319 CA and OKPE V. UMUKORO 2013 LPELR – 21999 CA.

The foregoing being the position of the law, the 1st Respondent having joined the 2nd Respondent as a co-Plaintiff, in whom the title resided and remained, would be

seen to have perfected his position. It is also necessary to note that, from Exhibit A1, the donor, the 2nd Respondent, intended that the 1st Respondent could alienate and dispose of the property, in fact, exercise all the powers he would. That being said, the law as explained in the foregoing paragraphs is to the effect that, property still remains in the Donor until the Donee has assigned the property to himself or another having obtained the requisite consent. Therefore, as already stated, the joinder of the 2nd Respondent could not have been more necessary. On page 199 of the Record, the Court entered Judgment in favour of the “plaintiffs” the 1st and 2nd Respondents. Consequently, in my considered view and humbly, the power of attorney gave the 1st Respondent the locus to institute the action and as his root which was fortified by the joinder of the 2nd Respondent. Further in my humble view, the fact of Exhibit A1, afforded the 1st Respondent the standing to pursue the issue of trespass, again, along with the 2nd Respondent.

The same principle of proof and onus of proof of Claimant’s case applies to the Appellants’ Counter-claim. It must be on the

preponderance of evidence and where the Claimant or Counter-claimant fails to discharge the burden of proof, his case will fail, as he who asserts, must prove and is not allowed to rest on the weakness of the defence, only on the strength of his own case. See the cases of IMAM V. SHERIFF supra, ELIAS V. OMO-BARE supra and AGBI V. OGBEH supra.

As correctly found by the Court, the documentary evidence tendered by the 1st Appellant particularly, Exhibit DI, which supposedly was his own root of title, on page 144 of the Record, referred to a house and reads thus: “FEDERAL GOVERNMENT HOUSING PROGRAMME LETTER OF ALLOCATION OF SALE OF A HOUSE IN ABUJA STATE.”
And specifically in paragraph 1 thereof, states:
“I am directed to communicate to you this Ministry’s intent to grant you a leasehold interest for 99 years in its house at Gwagwalada subject to your payment of…”

The power of attorney given to the 1st Appellant by the 2nd Appellant, referred therein to “Housing Unit No. 22 M Street, Works & Housing Estate, Gwagwalada, Abuja”.

The references to a housing unit as opposed to a plot of land in my humble view, is very misleading and could

not have assisted the Appellants’ case in terms of the exact and correct description of the kind of property in question. During his testimony, he referred to the property as land. The Court found that the contradiction between Exhibit D3, the Power of Attorney on page 146 of the Record, Exhibit D5 on page 152 of the Record, the letter from FCT-Field Headquarters to the Divisional Police Officer, DPO, Gwagwalada, on the status of the land, and Exhibit D1 letter of allocation on page 144 of the Record was fatal to the case of the Appellants and that was correct. Thereupon, it dismissed the Appellants’ case. One cannot fault such finding of the Court on the issue whether or not the Appellants proved their ownership of the land in dispute.

The 3rd and 4th Respondents (the 1st and 2nd Defendants at the Court below) did not testify and clearly declared the intention not to on page 111 of the Record and the Court recorded them as having rested their cases on that of the 1st and 2nd Respondents on page 198 of the Record.

The tort of trespass is against possession and a person in exclusive possession of land at all times material to the commission of the

alleged tort can maintain an action in trespass against anyone except the true owner or anyone claiming through the true owner. It is actionable per se, in other words, without proof of damages. See the cases ofLAGOS STATE COLLEGE OF EDUCATION & ORS V. EDUN & ORS 2004 LPELR-SC 48/1999, MOGAJI & ORS V. CADBURY NIG. LTD. 1985 LPELR-1989 SC, OLAGBEMIRO V. AJAGUNGBADE III 1990 3 NWLR PT. 136 37, OGBU V. ANI 1994 7NWLR PT. 355 128, ASEIMO V. ABRAHAM 1994 8 NWLR PT. 361 191 and PIUS AMAKOR V. OBIEFUNA 1974 1 ALL NLR P. 119.

For ingredients on the tort of trespass, in respect of the first ingredient, the Court found and correctly that, the 1st Respondent had been in exclusive possession of the land since September 17th, 2001 from the time the power of attorney, Exhibit A1, was given to him by the 2nd Respondent after the grant of Exhibit A2, to the 2nd Respondent. Whereas, the root of the Appellants, the power of attorney, Exhibit D1 was on January 25th, 2010 and in respect of a house not land as earlier pointed out. See page 193 of the Record. Regarding the second ingredient which is whether there was actual intrusion/trespass; the Court also

correctly found that the 1st Appellant trespassed on the land in dispute on page 195 of the Record when it stated that the 1st Appellant built on the land and for that reason an injunction was granted. The fact that the building was completed during the pendency of the suit was stated by both Counsel before the Court on page 106 of the Record when the 1st and 2nd Respondents’ Counsel reported completion of the building by the 1st Appellant to the Court and the Appellants’ Counsel agreed and confirmed the position.

In the light of the foregoing, the award of damages against the 1st Appellant in favour of the 1st Respondent was correct and in order in my considered view. In consequence, Issues (iii), (iv), (v) and (vi) are hereby resolved against the Appellants.

In the result, this appeal hereby fails and can not be allowed. The Judgment of the Court below delivered by Hon. Justice M. Balami on May 23rd, 2014 is hereby affirmed.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft, the judgment just delivered in Court by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.

I am in agreement with the reasoning and the

conclusion that the appeal is lacking in merit and should be dismissed. I, for the same reasons as per the lead judgment do dismiss the appeal and I abide by the consequential order made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I had the privilege of reading in draft the judgment just delivered by learned brother, O.E. WILLIAMS-DAWODU, JCA and I agree with the reasoning contained therein and the conclusion arrived there at.

My brother has adequately considered the issues formulated for determination in this Appeal. I have nothing useful to add. For the same reasoning advanced in the lead Judgment which I adopt as mine, this Appeal lacks merit and is hereby dismissed.

I abide by the other orders made therein in the lead Judgment.

Appearances:

Mr. Godwin Chigbu, with him, Chinedu Ugorji, Chidiebere Onyeme and Zahid Umoru For Appellant(s)

Mr. E. B. Ochuma with him, O. S. Oyibo – for the 1st and 2nd Respondents For Respondent(s)