OYELEKE v. OYEDIRAN (2020)

OYELEKE v. OYEDIRAN

(2020)LCN/15427(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, November 23, 2020

CA/A/270/2014

RATIO

DUTY OF COURT: RELEVANCE OF THE ENGAGEMENT OF A COURT IN ACADEMIC ISSUES

It is the law that a Court should not engage in academic issues/exercise. The Court should spend judicial time resolving live issues. A Court is never the proper forum for academic exercise. Academic issues lead nowhere, they only satisfy counsel that he has resolved a trivial issue or no issue at all but with great expense to the litigant and exhausting the energy of judicial officers. PER MOHAMMED BABA IDRIS, J.C.A.

TRESPASS TO LAND: WHETHER A PLAINTIFF MAY BE ENTITLED TO DAMAGES WITHOUT THE PROOF OF ACTUAL INJURY RESULTING FROM THE WRONGFUL ACTS CONSTITUTING THE TRESPASS

Now, it is a general principal in law that where a party has by trespass made use of a plaintiff’s land, the plaintiff is entitled to receive by way of damages such as should reasonably be paid for use
The law as it relates to damages in trespass was stated in REGISTERED TRUSTEES OF MASTER’S VESSEL MINISTRIES (NIG) INCORPORATED VS. EMENIKE & ORS (2017) LPELR-42836 (CA) where the Court held that:
“The law is also clear that trespass is actionable per se and once proved, a plaintiff is entitled to damages even without the proof of actual injury resulting from the wrongful acts constituting the trespass. A party who proves trespass is entitled without more to general damages which is quantified by relying on what would be the opinion and judgment of reasonable person in the circumstances of the case.” PER MOHAMMED BABA IDRIS, J.C.A.

TRESPASS AND POSSESSION: TYPES OF POSSESSION IN LAW

It is trite law that generally speaking a claim for trespass to land is rooted in exclusive possession. In other words, all that a party is required to prove in Court is not title to the property in dispute but exclusive possession of the property or the right to such possession of the land in dispute. See AMAKOR VS. OBIEFUNA (1974) 3 SC.

The two (2) types of possession in law therefore are:

Actual physical possession.
ii. Possession imputed by law which is derived from title. PER MOHAMMED BABA IDRIS, J.C.A.

INJUNCTION: FACTS TO BE PROVEN TO SUCCEED IN THE CLAIM FOR AN INJUNCTION

An order of perpetual injunction is based on the final determination of the rights of the parties and it is intended to prevent permanent infringement of those rights and obviate the necessity of bringing action after action in respect of every such infringement. See GOLDMARK (NIG) LTD & ORS VS. IBAFON CO LTD & ORS (2012) LPELR-9349 (SC).
The above means that a perpetual injunction is usually given as a necessary consequential relief to protect a land from being broken into, where declaration of title has been made in favour of a party. It is therefore a consequential relief which naturally flows from the declaratory order sought and granted. The Supreme Court has held that the grant of an order of perpetual injunction to a successful party is consequent upon the final determination of the rights of the parties to the dispute, is meant to prevent permanently, the infringement by the losing party of the rights of the successful party, and to obviate the necessity of bringing multiplicity of actions. It is now settled law that for a party to succeed in the claim for an injunction, he/she must prove that they have a better title to the land. See AYANWALE VS. ODUSAMI (2011) LPELR-8143 (SC). This shows that in order to triumph as it relates to getting a perpetual injunction there must be proof of title to the land in dispute by credible evidence established by one or more of the five methods of proof of title to land, namely: (a.) Evidence of traditional history of title; (b.) Production of genuine and valid documents of title; (c.) Numerous acts of ownership; (d.) Acts of possession over a long period of timer or, (e.) Acts of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute.

ACQUIESCENCE: BURDEN OF PROOF

When the defence pleads acquiescence, it is not for the plaintiff to prove there had been none, but for the defendant to prove the acquiescence. See ALADE VS. ABORISHADE (1960) 5 F.S.C. 167, 171 and ODUNSI VS. KUFORIJI (1948) 19 N.L.R. 7.

Acquiescence is an important factor upon which the doctrine of laches is founded. Therefore, the doctrine will not be applied where there is no acquiescence, express or implied on the part of the true owner in the defendant’s assumption of the right in dispute. See TOBIAS EPELLE VS. OJO (1926) NLR VOL. VII.
Similarly, the doctrine will not be applied where the defendant had sufficient warning as to the status of the property and the right of the plaintiff therein in that case the defendant was not led by the conduct of the plaintiff to alter his position with respect to the property. See OLOWU VS. DESALU (1955) 14 W.A.C.A. 662, 664;
An uninterrupted possession for a period of three years as in the instant case may not be enough to ground the equitable defence of long possession showing acquiescence unless the defendant had within that period, altered his position that it would be inequitable to permit the true-owner to assert his title. See SOLAGBADE VS. AYANKOYA (1962) W.N.L.R. 85, 87. PER MOHAMMED BABA IDRIS, J.C.A.

LACHES AND ACQUIESCENCE: CIRCUMSTANCES THAT MAY WARRANT THE INVOCATION OF THE DOCTRINE OF LACHES AND ACQUIESCENCE

The doctrine of laches and acquiescence may be invoked where the conduct or neglect of the plaintiff indicates to the defendant a waiver of the plaintiff’s rights, which rights have been acquired by the defendant. See IBEZIAKO VS. ABUTU (1958) II E.N.L.R. 24, 27.

When a party in a suit has slept on his right for a great length of time, nothing can call this Court into activity but conscience, good faith, and reasonable diligence, where these are wanting, the hands of the Court is tied.
The Appellant’s Counsel has argued that upon his application for land in 1994, he was granted an offer of right of occupancy over the disputed plot which he accepted vide his letter dated 7th April, 1995. He further argued that he exercised diverse ownership on the land and throughout the period of about six years from 1995 – 2001, the Respondent who claimed to have prior proprietary interest in the plot of land in dispute, did nothing to bring to the Notice of the Appellant, her purported interest to put a stop to the activities of the Appellant on the land.

Circumstances warranting the invocation of the doctrine are not in doubt. Delay in asserting one’s right is an important factor though not necessarily the controlling factor, where the defence against the relief sought by the plaintiff is founded upon mere delay and the delay does not amount to a bar of the relief by any statute of limitations, the Court will proceed to consider the length of the delay, the inadequacy or unsatisfactory nature of the explanation of the delay, the nature of the acts done during the interval, that is, the degree of change which has occurred and whether in the circumstances the balance of justice or injustice is in favour of granting the remedy or withholding it.
The circumstances warranting the invocation of the doctrine were aptly stated by the Supreme Court in the case of FAGBEMI VS. ALUKO (1968) 1 ALL N.L.R. 233 AT 237. In considering the equitable doctrine of laches, the Court does not act only on the delay by the plaintiff, but must also consider:
(i) acquiescence on the plaintiff’s part, and
(ii) any change of position that has occurred on the defendant’s part. PER MOHAMMED BABA IDRIS, 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

ALHAJI TAYO OYELEKE APPELANT(S)

And

PROFESSOR MURIEL AYODEJI OYEDIRAN RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Amended Writ of Summons dated 22nd March and filed on the 12th March, 2001, the Respondent as Plaintiff at the trial Court instituted an action against the Appellant who was the defendant at the trial Court and sought for the following reliefs against the Defendant:
1. That the Plaintiff is entitled to the Statutory Right of Occupancy in respect of all that Plot No 615 Asokoro (A4) District of the Federal Capital Territory at Abuja covered by the Certificate of Occupancy dated 29th day of June 1993 registered as FC 115 at Page 115 in Volume 37 of the Lands Registry Office at Abuja.
2. A perpetual injunction restraining the Defendant, his agents, privies and workmen from committing further acts of trespass on the aforesaid Plot 615 (Asokoro A4) District Abuja.
3. Damages
4. Such further order or orders as this Honourable Court may deem fit to make in such circumstance.
Annual rental value N863.65.

The Statement of Claim was amended twice. The 2nd Amended Statement of Claim was filed on the 27th July, 2009 wherein the Respondent sought for the following reliefs:
1. A DECLARATION that the Plaintiff is entitled to the statutory Right of Occupancy in respect of all that Plot No 615 Asokoro (A4) District of the Federal Capital Territory at Abuja covered by the Certificate of Occupancy dated 29th day of June 1993 (more particularly delineated on the survey plan dated 11th May 1995 attached thereto and forming part thereof) and registered as FC 115 at Page 115 at page 115 in Volume 37 of the Lands Registry Office at Abuja,
2. A DECLARATION that all transactions between the Defendant and FCDA culminating in the purported allotment of the same land in dispute to the Defendant and the Purported issuance of the certificate of Occupancy No. FCT/ABU/KG.1059 dated 21st June 1995 and registered as FC 139/139 in volume 53 in all circumstances herein are void ab initio and conferred nothing on the Defendant.
3. Perpetual injunction restraining the Defendant, his agents, privies and workmen from committing further acts of trespass on the aforesaid Plot 615 (Asokoro A4) District Abuja.
4. General Damages N500 Million
5. Such Further order or orders as this Honorable Court may deem fit to make in such circumstance.
Annual Rental Value – N853.65

The Respondent as plaintiff at the trial Court, instituted this action claiming that sometime between 1980 – 1983, she applied to the Federal Capital Development Authority (FCDA) and was duly granted a Statutory Right of Occupancy in respect of Plot No. 1042 in Garki District of the Federal Capital Territory, Abuja for a term of 99 years commencing 7th day of March 1983 and paying annual rent at N22.87 which she was paying diligently and subject to revision every five years.

The Respondent claims that sometime on or about the 12th of March, 1986 the FCDA re-granted a Statutory Right of Occupancy within the Federal Capital Territory, Garki 11. The Plaintiff at the request of the FCDA agreed to substitute a fresh statutory right of occupancy for her initial statutory right of occupancy. The Respondent also claims that by FCDA’s offer dated 22nd June 1990, which was accepted by the Respondent, a new offer was made to the Respondent upon the terms stated therein and Plot 615 within the Asokoro (A4) District and not Garki 11 was substituted for Plot 1042.

The Respondent further claims that the FCDA issued the Respondent with Certificate of. Occupancy No: FCT/ABU/LA455 duly registered as No. FC 115 at page 115 Volume 37 in the Land Administration Land Registry Office, at Abuja and that she has remained in possession exercising diverse act of ownership including insertion of survey pillars.

The Respondent also claims that the land in dispute adjoins Plots 616, 625, 614 within the same Asokoro (A4) District and is bound by beacon Nos. FCT A4 PB, 3005, 3007, 3008 and 3006 and is more particularly delineated on the plan attached to the foot of and forming part of, the Certificate of Occupancy. The Respondent claims that sometime between October 1996 and October 1998, she discovered that the Appellant broke into the land in dispute refusing to disclose his identity to the Respondent and her agents and commenced building activities claiming to be the rightful allottee of the land in dispute and have been authorized by the FCDA to take possession of the land.

The hearing at the trial Court was conducted twice. The first trial was before Honorable Justice I. U. Bello which culminated in Appeal No: CA/A/57/M/2005 and a further Appeal to the Supreme Court in Appeal No: SC.287/2005 where a retrial was ordered. The second trial was before the trial judge, Honorable Justice M. E. Anenih which has led to this appeal.

The Respondent at the trial Court opened its case on the 26th of January, 2010 and testified as PW1, the sole witness and tendered documents admitted and marked Exhibits thus:
EXHIBIT A – Letter of Offer dated 8th February 1983
EXHIBIT B – Acceptance Letter dated 7th March 1983
EXHIBIT C – Re-Grant of Statutory Right of Occupancy dated 12/3/86.
EXHIBIT D – Letter dated 9th April 1986
EXHIBIT E – Application forms for statutory Right of Occupancy dated 9/4/86
EXHIBIT F – Letter of offer of terms of grant by FCDA dated 22nd June 1990
EXHIBIT G – Letter dated 20th September, 1990.
EXHIBIT H – Acceptance of offer dated 20th September, 1990
EXHIBIT J – Letter dated 30th May 1991.
EXHIBIT K – Re: application for statutory Right of Occupancy dated 30th April, 1991.
EXHIBIT L – Acceptance of offer of grant of right of occupancy dated 14th June, 1991.
EXHIBIT M – Right of occupancy rents dated 8/2/93.

EXHIBIT N – Right of Occupancy rents dated 10/5/93
EXHIBIT O – Settlement of survey fees dated 28th May 1992.
EXHIBIT P – Certificate of occupancy dated 14/6/91
EXHIBIT Q embloc – Bundle of 10 Receipts
EXHIBIT R – Demand Notice for Ground Rent dated 10/10/96.
EXHIBIT S1, S2, S3, and S4 – Series of Correspondence to FCDA dated 22/10/96, 9/3/98, 9/10/98 and 12/10/96.

EXHIBIT 2T, 2U, 2V, 2W, and 2W2, 2X, 2Y, 2Z, 2AA, 2AB, 2AC, 2AD and 2AE, B-510 – The Documents are land application forms dated 10/3/95/ survey plan – Right of Occupancy No FCT/ABU/KG.1059, settlement of survey fees with attached receipts dated 31/5/95, offer of terms of grant dated 5/4/95 acceptance of offer of grant of Right dated 7/4/951 convenience of approved dated 3/7/95, letter dated 30/5/91, FCDA FORM/LA1 dated 10/3/95 settlement of building plan approval dated 3/7/95, Approval of setting of and connect dated 22/8/95 dated and the bundle of 7 FCDA receipts.
EXHIBIT AF – Deposit Teller No.0008021 dated 5th June 2005.
EXHIBIT AG – Letter from Plaintiff’s Solicitor dated 2/8/04

The Appellant opened his defence on the 17th March, 2010 and he testified as DW1 – the sole witness and tendered documents which were admitted and marked as exhibits thus:
EXHIBIT AH – Certified True Copy of the application form dated 10/3/95
EXHIBIT AJ – C.T.C. of the land application forms acknowledgment dated 10/3/95.
EXHIBIT AIC – FCDA receipt No 366435 dated 7/3/95
EXHIBIT AL – Certified Copy of offer of terms of contract dated 5/4/95
EXHIBIT AM – C.T.C. of acceptance of offer dated 7/4/95
EXHIBIT AN – C.T.C. of Certificate of occupancy dated 21/6/1995.
EXHIBIT AP – Demand Notice for ground rent dated 19/2/09
EXHIBIT AQ – Receipt from AGIS attached and also dated 19/2/09
EXHIBIT AR1 – Endorsed copy of sterling bank cheque No. 00002989 dated 19/02/09
EXHIBIT AR2 – Attached photocopy of demand notice.
EXHIBIT AS – Clement notice for ground rent dated 4/11/04
EXHIBIT AT – Attached Receipt No. 16273 dated 14/03/05.
EXHIBIT AU – C.T.C. of Certificate of occupancy dated 19/12/04

After the close of evidence, both parties then filed and adopted their respective written addresses on the 27th February, 2014 and the matter was adjourned for judgment. After considering the evidence led by parties, the learned trial judger Honorable Justice Maryann E. Anenih delivered judgment in the Suit No. FCT/HC/CV/182/2001 on the 27th July, 2009 wherein the trial judge gave judgment in favour of the Respondent.

Dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal dated 14th of April, 2004 comprising of ten (10) grounds of appeal. The parties in the appeal before this Court filed and exchanged their respective briefs of argument.

In the Appellant’s brief of argument as settled by his counsel A. I. Aderogba Esq. dated 20th June, 2016 and filed 22nd June, 2016 the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether having regard to the facts and circumstances of this case, the defence of laches and Acquiescence is available to and availed the Appellant (Ground 1 and 2 of the Notice of Appeal).
2. Whether in view of the content of Exhibits S1-S4 relied on by the Trial Court and the pleaded facts and evidence led at the trial, the trial Court was right in holding that the Respondent was not passive in asserting her title (if any): (Ground 3 and 4 of the Notice of Appeal).
3. Whether the Respondent’s suit was properly constituted in the absence of the Federal Capital Development Authority (FCDA). (GROUND 6 of the Notice of Appeal).
4. Whether the Respondent proved her case before the Trial Court. (Ground 5 and 9 of the Notice of Appeal).
5. Whether the Trial Court was right in awarding nominal damages in the sum of N500,000.00 against the Appellant for trespass: (Ground 7 of the Notice of Appeal).
6. Whether the Trial Court rightly granted perpetual injunctive relief in favour of the Respondent in the absence of the grantor of the Purported right of Occupancy she relied on. (Ground 8 of the Notice of Appeal).

On Issue One, the Appellant’s Counsel argued that there is no dispute that the same plot which the Respondent said was finally allocated to her is the same plot of land which was granted by the relevant authorities to the Appellant. Counsel further argued that the learned trial judge made findings in this regard at page 458 of the Record of Appeal while rejecting the Respondent’s contention.

The Appellant’s Counsel argued that paragraphs 3, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Appellant’s witness statement on oath are instructive as they showed all the diligent steps he took upon securing the grant of title over the property in 1995 and 2000. Counsel further argued that all this time the Respondent who claimed to have had a prior proprietary interest in the land in dispute did nothing to bring to the notice of the Appellant, her purported interest or put a stop to the activities of the Appellant on the land.

The Appellant’s Counsel argued that the record of proceedings before Bello, J referred to by DW1 under cross- examination was admitted as Exhibit AX on 17th May, 2011 and that there is nowhere in those proceedings when the Respondent ever said she visited the site or that she was chased away by the Appellant’s work men but now before the trial Court claims otherwise. The Appellant’s Counsel further argued that the conduct of the Respondent in waiting for a period of 15 years from the time of the purported allocation in 1980 and the time of her purported visit to the land and the period of six years between the time she said she saw the Appellant’s workmen on the land and the time the Appellant completed his building on the land and moved in with his family before she filed an action, shows that the Respondent fraudulently stayed away so that she can reap where she did not sow.

The Appellant’s Counsel argued that the Appellant referred to a contractor with whom she said she visited the site in 1995 and refused to give the name of the contractor or call him as a witness which failure to call him as a witness is fatal. On this point, counsel cited the case of THE STATE VS. NNOLIM (1994) 5 NWLR 345) 394 and urged this Court to invoke the presumption in Section 149(d) of the Evidence Act Cap 112 LFN 2004.

The Appellant’s Counsel also argued that the Respondent claimed she visited the land and left a note for record purpose because she did not know the matter would degenerate to this level which is unbelievable. The Appellant’s Counsel further argued that contrary to the evidence of the Respondent that on her visit to the land, she met a foreman, the Appellant gave evidence that he had no foreman and the evidence was not contradicted and must be deemed established. On this point, counsel cited the case of CAPPA & D’ALBERTO VS. AKINTILO (2003) 9 NWLR (PT. 824) 49 AT P. 71 in support.

The Appellant’s Counsel also argued that the trial Court at page 461 – 462 of the Record of Appeal held that the Counsel alluded to the evidence and pleadings of the Respondent in the earlier trial before Bello J but failed to state what point he was seeking to prove by such reference. The Appellant’s Counsel argued that on the strength of all these argument, the Respondent’s suit is caught by the equitable doctrine of laches and acquiescence. Counsel cited the case of KAYODE VS. ODUTOLA (2001) 11 NWLR (PT. 725) 659 AT P. 684, PARAS C-E.

The Appellant’s Counsel argued that it is not the law that a party seeking to enjoy the protection provided by the doctrine of laches and acquiescence must prove fraud and that it is enough if it is proved that the Respondent was willfully passive in drawing attention of the Appellant to any error he must have been suffering and that the Appellant amply proved that the Respondent was passive, on the strength of his argument made above.

The Appellant’s Counsel also argued that by finding that the defence of laches and acquiescence did not avail the Appellant, the trial Court unwittingly allowed the Respondent to reap where she did not sow and thereby allowed her to benefit from her wrong. In conclusion, the Appellant’s Counsel argued that the doctrine was available to the Appellant and amply avail him in the circumstances of this case and urged this Court to resolve this issue in favour of the Appellant against the Respondent.

On Issue two, the Appellant’s Counsel argued that the trial judge was wrong in holding the view that, in view of Exhibits S1 – S4, the Respondent was not passive in asserting her title as she petitioned FCDA on the issue. Counsel further argued that this could not have been done in view of the letters she wrote to the minister of FCT/FCDA if the Court actually read the Exhibits in question. The Appellant’s Counsel also argued that the excerpts of Exhibit S4 clearly show that she gave up on her right and that it was a letter of concession and that the same goes for Exhibit S2. Counsel further submitted that Exhibit S3 is a mere reminder to the Honorable Minister of the FCT. The Appellant’s Counsel also argued that it is settled law that in interpretation of contents of documents, a Court has a bounden duty to interpret them having regards to the words used therein. On this point, counsel cited the case of BAKER MARINE NIG. LTD VS. CHEVRON NIG. LTD (2006) 12 NJSC 174 AT P. 184 PARASE E – G in support.

In conclusion, the Appellant’s Counsel argued that before these letters to the minister and FCDA, the Respondent made no effort to stop or draw the attention of the Appellant to any interest she might have in the land.

On Issue three, the Appellant’s Counsel argued that, the trial Court was wrong in making the pronouncements in page 451 of the Record of Appeal and page 455 of the Record of Appeal as the contention of the Appellant at the trial Court was not as to joinder of party simpliciter but that the suit of the Respondent was not properly constituted given the complaints and reliefs set out in the Amended Statement of Claim. On this point, counsel cited the case of D. O. OGHENE & SONS LTD VS. W.E. AMORUWA & ANOR (1986) 3 NWLR (PT. 32) 856 AT P. 862 in support.

The Appellant’s Counsel argued that the FCDA, against whom atrocities had been levied, ought to have been made a party to this case in order for the suit to be properly constituted and this is fatal and defeats the suit. In conclusion, the Appellant’s counsel urged this Court to hold that the trial Court’s conclusion that the FCDA’s absence in this case is not fatal, was wrong and has occasioned a miscarriage of justice.

On Issue four, the Appellant’s Counsel argued that the finding of the trial Court at page 431 of the Record of Appeal fell into one major error and also in the finding that there was no dispute as to the grant or prior title to the Respondent. The Appellant’s Counsel argued that the defenses raised by the Appellant was to deny the Respondent’s title which are clearly visible and discernible. Counsel further submitted that his denial of the Respondent’s title and setting up of his claim are defenses which are at variance or cross-purpose with the defense of laches and acquiescence.

The Appellant’s Counsel argued that the trial Court viewed the Respondent’s action as one for declaration of title simpliciter and that was why it did not consider the FCDA or the Honorable Minister of the FCT a necessary party. Counsel further submitted that what the Court ought to have considered paramount is to determine whether the Respondent discharged the onus placed on her in a suit for declaration of title, namely – whether the Respondent proved her entitlement in the strength of her own case. On this point, counsel cited the case of KAIYAOJA VS. EGUNLA (1974) 12 SC 55 AT P. 61.

The Appellant’s Counsel also argued that in the Federal Capital Territory, proof by production of document is the commonest way of proving title or interest in land and that the Respondent’s narration of how she came about the land in dispute is rather clumsy, inconsistent and full of incessant revocations, substitution and alleged re-allocation. Counsel further submitted that to make matters worse, the Respondent had no land file at the land Registry of the FCDA/Ministry of the FCT and that explains why the FCDA refused to re-certify her purported certificate of Occupancy when she tendered it for re- certification; this she admitted in her pleadings and evidence and this admission is an admission against interest.

The Appellant’s Counsel argued that there is nothing to show or indicate from the relief of damages sought by the Respondent to indicate what the Respondent sought the general damages for and that no Court has the right to grant a relief set out in the Amended Statement of Claim that is vague or imprecise. On this point, counsel cited the case of A.G. OGUN STATE VS. A.G. FEDERATION (2002) 18 NWLR (PT. 798) 232 AT P. 275, PARAS D.

The Appellant’s Counsel also argued that given the fact that the Appellant had fully developed the land in dispute, to the knowledge of the Respondent who stood by, before the Respondent commenced this action and the entire circumstance of the case, the trial Court should have in fairness, refrained from granting any damages against the Appellant as the law frowns at double jeopardy. The Appellant’s Counsel in conclusion urged this Court to hold that the award of N500,000.00 as nominal damages is utterly reckless, whimsical and or arbitrary.

On Issue Six, the Appellant’s Counsel argued that the trial Court was wrong in granting perpetual injunction against the Appellant and any other person. Counsel further submitted that injunction inures in favour of a person with possessory right. In this case, it was the Appellant who was in possession.

In conclusion, the Appellant’s Counsel urged this Court to allow the appeal.

On the other hand, the Respondent filed their Brief of Argument dated 20th September, 2017 and filed 21st September, 2017 as settled by her Counsel, Eyitayo Fatogun Esq. and raised three issues for determination thus:
1. Whether the defences of laches, acquiescence and passive assertion of title enured in favour of the Appellant in this Appeal, given the totality of the evidence before the Trial Court (Ground 1, 2, 3, 4 and 5 of the Notice of Appeal)
2. Whether the Federal Capital Development Authority is a necessary party in the circumstance of this case. (Ground 6 of the Notice of Appeal).
3. Whether the Respondent proved her case as to entitle her to the granted by the Trial Court. (Ground 7, 8, 9 and 10).

On Issue one, the Respondent’s Counsel argued that the Respondent gave eloquent and unshaken evidence of the fact as it did at page 62 – 63 of the Record of Appeal. The Respondent’s Counsel also argued that the principle governing the defense of laches and acquiescence has been explained in a long line of cases. On this point, counsel cited the case of RAMSDEN VS. DYSON L. R. IH. L. 129, 140, 141. The Respondent’s Counsel further argued that from the records of the Court, the Respondent led evidence that she visited the property while the laborers of the Appellant were at work but they were hostile to her and the efforts she made to have a meeting with the Appellant for amicable settlements proved abortive owing to lack of cooperation by the Appellant. Counsel also submitted that these pieces of evidence were never challenged via cross-examination and so they stand uncontroverted. On this point, counsel cited the case of AMAYO VS. ERINMWINGBOVO (2006) 11 NWLR (PT. 922) 669 @ 687.

The Respondent’s Counsel also argued that beyond attempting to set the record straight with the Appellant, the Respondent equally submitted several complaints to the grantor of the property in dispute. The Respondent argued that the law is that a defence of laches and acquiescence must be specifically pleaded and proved and that the person relying on the defence must plead that the Respondent fraudulently, knowingly and deliberately stood while he changed his position. On this point, counsel cited the case of ADENIRAN VS. ALAO (2001) 12 SCNJ 337 in support.

The Respondent’s Counsel argued that from the documentary evidence before the lower Court, and now before this Court, the Respondent did not go to sleep. Counsel further submitted that Exhibit S series are documentary evidence of very honest and sincere steps by the Respondent which were never impugned.

The Respondent’s Counsel argued that Exhibit S4 gave three options to the Minister of the Federal Capital Territory to wit: to cause an investigation into the issue of double allocation and issuance of Certificate of Occupancy to two persons, Re-allocate another plot to the Respondent and refund the monies paid by the Respondent. However, the Appellant was not the person to which the offer was made, there was no evidence on record that the minister took any of the options and there was no evidence of revocation of the Respondent Right of Occupancy. The Respondent’s Counsel further argued that the Appellant did not bring any of the officials of the FCDA to lead evidence that minister or the authority even considered any of the offers till the Respondent went to Court, the defense or issue of the Respondent making an offer or relinquishing the right cannot be raised by the Appellant but only the FCDA who is not a party to this suit. And that it is only the party affected that can raise an issue in his defense. On this point, counsel cited the case of MONGUNO LOCAL GOVERNMENT VS. UMAR (1987) 3 NWLR (PT. 62) PAGE 663 AT PAGE 670 PARAGRAPH E – G.

The Respondent’s Counsel also argued that the same argument applies to Exhibits S1 – 3 wherein the Respondent asked that an investigation be conducted into the issue of preserved double allocation and same was not replied, neither is there any proof led by the Appellant that the Minister of the Federal Capital Territory, paid back the money expended by the Respondent. The Respondent’s Counsel in conclusion on this issue, urged the Court to discountenance the submissions of the Appellant, the said letters being letters being undisputed evidence and on the Respondent and it is most probably that a professor would have folded her arms on finding unauthorized and strange persons on her land.

On Issue two, the Respondent’s Counsel argued that if a person has full knowledge of a pending suit and was content standing by to see his battle fought by somebody else in the same interest, he is bound by the result. On this point, counsel cited the case of MARBELL VS. RICHARD AKWEI (1952) 14 WACA 143. Counsel further argued that the FCDA or the Honourable Minister are not necessary parties to the claim and it would have been a different matter if the claims were against FCDA, the claim was for revocation of title and one or both parties claim that they did not derive authority from FCDA which is not the case.

The Respondent’s Counsel argued that what makes a party a necessary party in a case and FCDA in the case, is whether the case can be determined effectively without the FCDA. Counsel further submitted that the case before the trial Court being one of who has a better title to the land in dispute and trespass did not require the FCDA and that if the input of the FCDA was necessary, the Appellant ought to have called the witness to support her later arrival on the land.

In conclusion on this Issue, the Respondent’s Counsel submitted that the reliefs sought by the Respondent at the lower Court could be and has been determined between the parties to the suit without joinder of other person or the FCDA effectively.

On Issue Three, the Respondent’s Counsel argued that it is apparent on the face of the exhibits tendered by both the Appellant and the Respondent during trial, that the title of the Respondent was the first to be registered. The Respondent’s Counsel also argued that N500 Million claimed as damages only awarded by the trial Court should come as a reprieve to the Appellant. Counsel further argued that the Appellant has wrongfully dispossessed the Respondent of peaceful, quiet and exclusive enjoyment of her proprietary rights over the property in dispute for over two decades and still running and that the law will not suffer a wrong to be without a remedy and justice must not only be done but seen to have been manifestly done to the parties before the Court.

In conclusion, the Respondent referred this Court to the case of IGHRERINIOVO VS. S.C.C. (NIG.) LTD (2013) 10 NWLR (PT. 1361) SC. 138 AT 154, PARAS. D – F and urged this Court to award general damages against the Appellant in the sum of N500,000,000 (Five Hundred Million) in favour of the Respondent.

Having summarized the arguments of counsel, I wish to adopt the issues raised by the Appellant herein, and will address the issues thereon. The issues again are:
1. Whether having regard to the facts and circumstances of this case, the defence of laches and Acquiescence is available to and availed the Appellant.
2. Whether in view of the content of Exhibits S1 – S4 relied by the Trial Court and the pleaded facts and evidence led at the trial, the trial Court was right in holding that the Respondent was not passive in asserting her title (if any).
3. Whether the Respondent’s suit was properly constituted in the absence of the Federal Capital Development Authority (FCDA).
4. Whether the Respondent proved her case before the Trial Court.
5. Whether the Trial Court was right in awarding nominal damages the sum of N500,000.00 against the Appellant for trespass.
6. Whether the Trial Court rightly granted perpetual injunctive relief in favour of the Respondent in the absence of the grantor of the purported right of Occupancy she relied on.

ISSUE ONE
Whether having regard to the facts and circumstances of this case, the defence of laches and Acquiescence is available to and availed the Appellant.

In the Amended Statement of Claim contained at page 56 and 57 of the Record of Appeal especially at paragraphs 7, 12 and 17, the Respondent stated thus:
“7. By the FCDA’s Letter dated 22nd June 1990, a new offer of Plot 6, Garki 11 District was substituted for plot 1042 which again the Plaintiff accepted and new grant thereof was made to the Plaintiff.
12. Sometime in 1995, the Plaintiff, on one of her several visits to the land in dispute with her contractor in preparation for developing the land in dispute, discovered that the Defendant had trespassed unto the land in dispute and was excavating (through his workmen) preparatory to building thereon.
17. The Plaintiff made several reports and petitions to the FCDA without any response whatsoever or howsoever.”

The Respondent also re-stated the above in her witness statement on oath contained at page 61 and 62 of the Record of Appeal particularly at Paragraphs 8, 16, and 21 of the witness statement on Oath which she adopted as her evidence at the trial Court.

These testimonies by the Respondent simply shows the steps taken by her upon her discovery in 1995 that the Appellant was in the land in dispute and was excavating through his workmen preparatory to building thereon. The Respondent’s evidence that she left a note (see paragraph 18 of her witness statement on oath contained at page 62 of the Record of Appeal) wouldn’t have sufficed as there was no evidence of such. However, her saving grace was that she made several reports to the FCDA contained in Exhibits S2 and S3 dated March 9, 1998 and October 9, 1998 respectively and same was received by the FCDA on the 12th March, 1998 and 14th October, 1998 respectively. All these envisages the steps the Respondent took concerning the entry of the Appellant on the disputed land. The Appellant also stated that they have been in possession of the plot in dispute since 26th June, 1995, which is about 3 years from when the Respondent wrote the letters to the FCDA and not after six years like the Appellant claimed.

Also, the claim by the Respondent that in 1995 he discovered that the Appellant had trespassed into the land and tried severally to meet with the Appellant was not challenged through cross-examination (See page 348 of the Record of Appeal where the matter was adjourned for Cross-examination but the PW1 was never cross-examined) of the PW1 when she adopted her witness statement on oath and gave her testimony on the 26th January, 2010.

From my findings above, I am of the well-considered view that the Respondent did not sleep on her right neither did she look away but she took steps to ensure that her right was ascertained as I have already considered above.

Having regard to the facts and circumstances of this case therefore and my findings above, the defence of laches and Acquiescence does not avail the Appellant. This issue is thus resolved in favour of the Respondent.

ISSUE TWO
Whether in view of the content of Exhibits S1-S4 relied on by the Trial Court and the Pleaded facts and evidence led at the trial, the trial Court was right in holding that the Respondent was not passive in asserting her title (if any).

The said Exhibits S1 – S4 in question, are documents titled thus:
Exhibit S1 – Letter dated 22/10/96 titled “Re: Demand Notice for outstanding ground rent of C of O. No LAG0455”.
Exhibit S2 – Letter dated March 9, 1998 titled “Plot 615, A4 Asokoro District, Federal Capital City Certificate of Occupancy No. FCT/ABU/LA 455 Held by Dr (Mrs) M.A. Oyediran”.
Exhibit S3 – Letter dated October, 1998 and titled “Plot 615, A4, Asokoro District, Federal Capital City Certificate of Occupancy No. FCT/ABU/LA 455 Held by Dr. (Mrs) M.A. Oyediran”.
Exhibit S4 – Letter dated 12/10/1996 by the Respondent to the FCDA titled. “Plot 615/ A4 Asokoro District, Federal Capital City Cert. of Occupancy No. FCT/ABU/LA 455 held by Dr (Mrs) M. A Oyediran.”

Since the Appellant’s Counsel has taken his time to reproduce the contents of these Exhibits as he has done at paragraphs 4.22 – 4.24 of the Appellant’s Brief of Argument, I will not be-labor myself to reproduced the contents but I have taken a critical look at the contents of these documents.

These are correspondences written to the FCDA by the Respondent in respect to the land in dispute. Looking at these documents as I have done and giving the meaning and intent of these documents as this Court ought to in the circumstance, it is clear that the Respondent wrote these letters to the FCDA, upon discovering the Appellant’s presence on the land and for the FCDA to clarify what the Appellant was doing on the same land which was allocated to her. This to me does not impute concession of her right as the Appellant’s Counsel has argued.

In interpreting the content of a document, this Court is expected to give it its ordinary meaning and that is what I have just done. Also, it is trite law that document speak for itself and one cannot read into the text what is not contained therein. See the case of AHMED VS. CENTRAL BANK OF NIGERIA (2013) 11 NWLR (PT. 1365) 352 AT 374 PARAGRAPHS A – C.

Going further, I would also wish to adopt my findings on Issue One to state categorically that I strongly disagree with the argument of the Appellant’s Counsel that the Respondent was passive in asserting her title. I hereby uphold the decision of the trial Court on this point. This Issue is resolved against the Appellant.

ISSUE THREE
Whether the Respondent’s suit was properly constituted in the absence of the Federal Capital Development Authority (FCDA).
To determine whether the suit leading to this appeal was properly constituted as to parties, this Court would take a critical look at the statement of claim and the reliefs sought before the trial Court.

For want of better consideration, I would not hesitate to reproduce the entire claim of the Respondent at the trial Court thus:
“1. The Plaintiff is a Nigerian and a Professor in the College of Medicine, University of Lagos, Idi-Araba, Surulere, Lagos who resides at 154, Adetokunbo Ademola Street, Victoria Island, Lagos.
2. The Federal Capital Development Authority (FCDA) is in charge of allotment/allocation and grant of leases of parcels of land for development within the Federal Capital Territory, Abuja.
3. The land in dispute herein is Plot 615, Asokoro (A4) District of Abuja.
4. The Plaintiff applied to the FCDA sometime about 1st Day August 1980, and was duly granted a statutory right of Occupancy in respect of all that Plot No. 1042 in Garki District of the Federal Capital Territory, Abuja for a term of 99 years and paying therefore annual rent of N22.87 subject to revision every Five years.
5. The Plaintiff has been diligently paying all her rents.
6. Sometime on or about the 12/7 Day of March 1986, the FCDA substituted a Statutory Right of Occupancy within the Federal Capital Territory, Garki 11 for that referred to in Paragraph 4 supra to which the Plaintiff accepted.
7. By the FCDA’s letter dated 22nd June 1990, a new offer of Plot 615, Garki 11 District was substituted for Plot 1042 which again the Plaintiff accepted and a new grant thereof was made to the Plaintiff.
8. By the FCDA subsequent offer dated 30th April, 1991, the FCDA clarified the exact location of Plot 615 to be within Asokoro (A4) District and not Garki 11 and restated the terms thereof, which again the Plaintiff accepted.
9. The FCDA thereupon issued the Plaintiff with the Certificate of Occupancy No. FCT/ABU/L4A55 duly registered as No. FC115 at page 115 in Volume 37 in the Land Administration Land Registry Office, at Abuja.
10. The Plaintiff was put in Possession of the aforesaid Plot 615 Asokoro (A4) District Abuja (the land in dispute) and had remained in possession thereof exercising diverse acts of ownership thereon including the survey of the land in dispute and the insertion of the survey pillars thereon.
11. The Land in dispute adjoins 616, 625 and 614 within the same Asokoro (A4) District and is bound by beacon Nos FCTA4 PB, 3005, 3007, 3008 and 3006 and is more particularly delineated on the Plan attached to the foot of, and forming part of the Certificate of Occupancy referred to in Paragraph 9 supra.
12. Sometime in 1995, the Plaintiff on one of her several visits to the land in dispute, with her contractor in preparation for developing the land in dispute, discovered that the Defendant had trespassed unto the land in dispute, and was excavating (through his workmen) preparatory to building thereon.
13. The Plaintiff challenged the workmen found thereon and demanded for a disclosure of the Defendant’s identity but none was made by the Defendant’s Agent/Workmen.
14. The Plaintiff left a note for the Defendant wherein the Plaintiff introduced herself as the lawful holder of the Statutory Right of Occupancy of the land in dispute and requesting to meet with the Defendant on her next visit. The Plaintiff kept the appointment but not the Defendant.
15. The Plaintiff made another appointments (through the Defendant’s workmen) to meet with the Defendant in order to amicably resolve the dispute but the Defendant kept none of the appointments but rather commenced building activities on the land in dispute.
16. The Defendant, through his foreman who refused to disclose his identity either, claimed to be the rightful allottee of the land in dispute from FCDA and the Defendant’s workmen chased the Plaintiff away on her last visit to the End in dispute.
17. The Plaintiff made several reports and petitions to the FCDA without any response whatsoever or howsoever.
18. The Plaintiff contends that her Certificate of Occupancy referred to in Paragraph 9 supra is extant and shall at the Trial Contend further that any purported subsequent allocation or dealing on the land in dispute between the Defendant and FCDA is adverse to the Plaintiff’s interest, title and right thereto and is void.
19. The Plaintiff shall at the Trial rely on all relevant documents.

Whereupon the Plaintiff claims against the Defendant as follows:
1. A DECLARATION that the Plaintiff is entitled to the statutory Right of Occupancy in respect of all that Plot No 615 Asokoro (A4) District of the Federal Capital Territory at Abuja covered by the Certificate of Occupancy dated 29th day of June 1993 (more particularly delineated on the survey plan dated 11th May 1995 attached thereto and forming part thereof) and registered as FC 115 at Page 115 at page 115 in Volume 37 of the Lands Registry Office at Abuja.
2. A DECLARATION that all transactions between the Defendant and FCDA culminating in the purported allotment of the same land in dispute to the Defendant and the Purported issuance of the certificate of Occupancy No. FCT/ABU/KG.1059 dated 21st June 1995 and registered as FC 139/139 in volume 53 in all circumstances herein are void ab initio and conferred nothing on the Defendant.
3. Perpetual injunction restraining the Defendant, his agents, privies and workmen from committing further acts of trespass on the aforesaid Plot 615 (Asokoro A4) District Abuja.
4. General Damages N500 Million
5. Such Further order or orders as this Honourable Court may deem fit to make in such circumstance.
Annual Rental Value- N863,65.” (Emphasis Mine)

From the above reproduced Statement of Claim and emphasis I have made, it is clear that the Respondent acknowledges the fact that:
– The Federal Capital Development authority (FCDA) is in charge of allotment/allocation and grant of leases of parcels of land for development within the Federal Capital Territory, Abuja.
– That the FCDA allotted the land in dispute which was first allotted to her, to the Appellant.
– Upon discovery of the fact above, the Respondent made several reports and petitions to the FCDA without any response whatsoever or howsoever.
– The Respondent seeks the “DECLARATION” of the Court that all transactions between the Defendant and FCDA culminating in the purported allotment of the same land in dispute to the Defendant and the Purported issuance of the certificate of Occupancy No. FCT/ABU/KG.1059 dated 21st June 1995 and registered as FC 139/139 in volume 53 in all circumstances herein are void ab initio and conferred nothing on the Defendant.

I would also want to refer to Exhibits S1 – S4 which the Respondent wrote to the FCDA. The content of these documents at this Point would be looked at as it relates to the importance of the FCDA in the suit leading to the appeal and not to show the step taken by the Respondent upon her discovery of the Appellant on the land in dispute as I had done in consideration of issue two above.

The Respondent in these correspondences (Exhibits S1 – S4) expressed her displeasure as to the fact that the FCDA allocated to the Appellant, the same land which was allocated to her and that the FCDA should direct its officers to enquire into the matter with a view to deciding to whom the disputed land was properly allocated.

The Respondent in one of the letters stated that: “In December 1997 I decided to engage the services of a firm of Estate Surveyors to make another attempt and at physically identifying the particular plot of land concerned and the name of the Claimant. They were very concerned to discover that the entire file relating to the plot could not be located at the offices of the Federal Capital Development Authority and its staff claimed that they could not physically locate the plot.” (See page 100 of the Record of Appeal), See also pages 97, 98, 99 and 101 of the Record of Appeal.

In all these, from the Statement of Claim, the relief two sought for before this Court and the Exhibits S1 – S4 before this Court shows that even though the Respondent was concerned about the allocation of the land in dispute to the Appellant, her main concern and grievance is to the Federal Capital Development Authority who allocated same land it allocated to her to the Appellant and yet did not respond to her plea to promptly intervene to re-confirm her title to the land in dispute.

So it beats my imagination that the Respondent failing to get what she wants from the FCDA decided to vent her anger on the Appellant who has done nothing and leaving out the main source of the anger which she now vents.

Imagine also, Relief two sought by the Appellant at the trial Court. How can the Appellant be seeking for the transactions between the Defendant and FCDA culminating in the purported allotment of the same land in dispute to the defendant and the purported issuance of the certificate of Occupancy No. FCT/ABU/KG.1059 dated 21st June 1995 and registered as FC 139/139 in volume 53 in all circumstances herein to be declared void ab initio and conferring nothing on the Defendant when the said FCDA is not even brought before the trial Court to explain the true position on the status of the two parties before the Court having in mind also that the Respondent has said that the file in respect of the plot in dispute was discovered to be missing.

All these are allegations on the Federal Capital Development Authority which needs to be cleared one way or the other. Let me even assume that the Respondent was not wrong in not bringing the suit leading to the appeal against the FCDA as they have done, what stops them from bringing the FCDA as a witness to clear the air on the allegations against them (the FCDA)?

I do not agree totally with the trial Court’s decision contained at page 400 of the Record of Appeal that:
“Having gone through these claims and the entire statement of claim, I do not see under the circumstances how this matter is likely to be defeated by non-joinder of a third party FCDA as a defendant.
The Claims of the Plaintiff in this case appears to be on the pronouncement of the Court on his entitlement to the Plot in question, damages, subsequent declaration of transactions in respect of allotment of the same land to the delineations as void, perpetual injunction and other orders the Court may deem fit to make.
Both Parties are ad idem that the same plot of land was previously allocated to the Plaintiff and subsequently allocated to the defendant.” (Emphasis Mine)

I do not understand how the fact that the parties are ad idem that the same plot of land was previously allocated to the Respondent and subsequently allocated to the Appellant solves any problem without the party who has caused this commotion in the first place one who is a necessary party, one who is necessary in all sense of the word and not one who is a third party like the trial Court described.

The Court in the first place could not have come to a just conclusion of the case without the presence of the FCDA who has caused all these confusions in the first place. In NIGERIAN DEPOSIT INSURANCE CORPORATION VS. ENYIBROS FOODS & ANOR (2001) 143, it was held that a necessary party is a person whose presence is essential for the effectual and complete determination of the issues before the Court. He is a party in the absence of whom the claim cannot be effectively and completely determined. See also the case of BABAYEJU VS. ASHAMU (1998) 9 NWLR (PT. 567) P. 546.

Another finding of the Court which I consider unjust is the one contained at page 401 of the Record of Appeal thus:
“It is also pertinent to note that from the evidence before the Court, Federal Capital Development Authority is well aware of this matter and has opted to stand aside. And apropos to this I am of the view that this matter can be properly decided without the Joinder of Federal Capital Development Authority…”

This finding of the Court above is to my mind highly speculatory and the Court do not speculate on possibilities not supported by evidence, they act on actualities. See the case of SEISMOGRAPHIC LTD VS. OGBENI (1976) 4 SC 85 101.

That the FCDA was part of the previous proceeding as argued by the Respondent before an order of retrial was made by the Supreme Court, does not mean that they are aware of this present case at hand. There is even no evidence before the trial Court to show that the FCDA is aware of this present suit or that they were even subpoenaed as a witness at the trial. How then can the trial Court come to such conclusion?

Considering my well-articulated finding and consideration unlike the trial Court had done on this point, I am unshaken in my view to hold that the Respondent’s suit at the trial Court was not properly constituted in the absence of the Federal Capital Development Authority (FCDA). This issue is hereby resolved in favour of the Appellant.

ISSUE FOUR
Whether the Respondent proved her case before the Trial Court.
Before I continue with the consideration of this issue, I wish to state that the fact that the Respondent took steps upon her discovery of the Appellant on the land in dispute as I have considered under Issues one and two, does not mean that they had proved their case.

Taking steps is one thing and proving her case is another thing. In considering whether the Respondent proved her case before the trial Court, my consideration would be in relation to whether she proved her case to be entitled to the reliefs sought and granted by the trial Court.

I will first consider the reliefs 1 and 2 which are declarative reliefs thus:
1. A DECLARATION that the Plaintiff is entitled to the Statutory Right of Occupancy in respect of all that Plot No 615 Asokoro (A4) District of the Federal Capital Territory at Abuja covered by the Certificate of Occupancy dated 29th day of June 1993 (more particularly delineated on the survey plan dated 11th May 1995 attached thereto and forming part thereof) and registered as FC 115 at Page 115 at page 115 in Volume 37 of the Lands Registry Office at Abuja.
2. A DECLARATION that all transactions between the Defendant and FCDA culminating in the purported allotment of the same land in dispute to the Defendant and the Purported issuance of the certificate of Occupancy No. FCT/ABU/KG.1059 dated 21st June 1995 and registered as FC 139/139 in volume 53 in all circumstances herein are void ab initio and conferred nothing on the Defendant.

It is trite that the burden on a Plaintiff in an action for declaration of title to land is to establish his claim by preponderance of evidence. See the case of DR. SAMUEL U. ISITOR VS. MRS MARGARET FAKARODE (2018) 10 NWLR (PT. 1628) 416.
A plaintiff in a case for declaration of title to land is entitled to the declaration sought on the strength of his case and not on the weakness of the opponent’s case like the Respondent’s Counsel tried to do with his argument contained at paragraph 5.00 – 5.25 of the Respondent’s Brief of Argument.

See the case of MR. MOSES BENJAMIN V. MR. ADOKIYE KALIO (2018) 15 NWLR (PT. 1641) 38.
The weakness of the Defendant’s case in a land suit touching on declarations, as herein, does not assist the Plaintiff’s case. He swims or sinks with his own case. See the case of NWOKIDU VS. OKANU (2010) 3 NWLR (PT. 1181) 362.
In the case of DUMEZ NIG. LTD VS. NWAKHOBA (2008) 18 NWLR (PT. 1119) 361 AT 373 – 374, it was graphically captured that the burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the Plaintiff fails to establish his entitlements to the declaration by his own evidence.
Addressing the issue at hand by virtue of the authorities cited, it is clear that the burden of proving an entitlement to a declarative relief is heavy on the Plaintiff who is the Respondent in this appeal. This burden can be likened to proof beyond reasonable doubt in criminal trials.
The Respondent who wants the judgment before the trial Court to be given in his favour and who claims to be the prior owner of the land in dispute first failed to call the officials of the FCDA who has never responded to any of her correspondences to either give evidence as a party or witness in the suit in support of her case.

The Respondent’s Counsel argued that the Respondent has a prior title but his Exhibit S2 contained at page 100 of the Record of Appeal points to the fact that it was discovered that the entire file relating to the land in dispute could not be located at the offices of the FCDA and its staff could not physically locate the plot. The proof of a better title than the one the Appellant had would have been more accurate if the Respondent had involved the FCDA in the proceeding and not by merely relying on the fact that it has a prior title.

Since the said Exhibit S2 shows that she might not even be sure of the plot in question and also, a cloud has been raised in the mind of this Court in this regard owing to the fact that from the chronicle of her statement before the trial Court, she has been allocated and re-allocated to different plots by the FCDA. Thus, this Court would not hesitate to state clearly, that she has not been able to succeed in the strength of her own case and the evidence of the Respondent was without weight.

Secondly, in the case of ELEGUSHI VS. OSENI (2005) 14 NWLR (PT. 945) AT 348 the Apex Court stated the five ways of proving legal land ownership in Nigeria and they are:
1. By traditional evidence.
2. By production of a document of grant or title.
3. By proving acts of possession and ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the plaintiff is an exclusive owner.
4. By proving acts of long possession and enjoyment of the land; but this only raises a presumption of ownership.
5. By proof of Possession of connected or adjacent land in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute.
The above are ways of proving title to land and they are the only recognized ways. Also, the most common of the ways listed above is the production of a document of grant or title. This method entails providing any of the following documents: Deed of Assignment/Conveyance, a legal Mortgage, a Deed of Gift and a Certificate of Occupancy.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Even though the Respondent claims that his grant of title to the land came before the Appellant’s, from Exhibit S2, she wasn’t sure as to the Plot in question and to make matters worse, the file at the offices of the FCDA could not be located. There was yet no evidence to clarify the title of the Respondent as it relates to the land in dispute. Again, the chronicle as to how she acquired the title to the land in dispute is quite shaky to establish a better title than the one the Appellant has. Mere conclusions that the Respondent’s title is first in time to the Appellant’s title should not suffice in this instance given the circumstances.

From my above findings therefore, it is my considered view that the Appellant did not prove his case as to entitle him to the declarative reliefs in relief 1 and 2 of the Amended Statement of Claim before the trial Court.
As regards whether the Respondent proved her case as it relates to the other reliefs before the trial Court, my consideration would be as follows:
PERPETUAL INJUNCTION
The next relief the Respondent sought for was a perpetual injunction restraining the Defendant, his agents privies and workmen from committing further acts of trespass on the aforesaid Plot 615 (Asokoro A4) District Abuja.

Also the law is that once there is no finding for trespass, an injunction cannot be granted as there is no possession in the party to protect. See OYENEYIN & ANOR VS. AKINKUGBE & ANOR (2010) LPELR- 2875 (SC). This according to law is because an order of injunction restraining a party from further trespass must of necessity flow from a finding of an act of trespass against him. From the forgoing since it has been established that the Respondent has not proven her title to the land in question and all her declaratory reliefs have been denied then it automatically means that the perpetual injunction will not be granted. The Respondent cannot stop anyone from trespassing into land that does not belong to her or which she is not in possession of.

DAMAGES
The Respondents last relief is a claim of 500 Million in general damages. Now the law is trite that general damages are that which the law implies or presumes to have occurred from the wrong complained of. They are presumed to flow from the immediate, direct and proximate result of the wrong complained of. All the Court need do in exercising its discretion is to calculate what sum of money will be reasonable in the circumstance of the case. See OLAJOGUN & ORS VS. AGORO (2014) LPELR-24040.

Given that this is a land matter and the Respondent has asked for a perpetual injunction against trespass by the Appellant, then I rightfully conclude just as the trial judge did that the damages in this case relate to trespass of land. Now, it is a general principal in law that where a party has by trespass made use of a plaintiff’s land, the plaintiff is entitled to receive by way of damages such as should reasonably be paid for use
The law as it relates to damages in trespass was stated in REGISTERED TRUSTEES OF MASTER’S VESSEL MINISTRIES (NIG) INCORPORATED VS. EMENIKE & ORS (2017) LPELR-42836 (CA) where the Court held that:
“The law is also clear that trespass is actionable per se and once proved, a plaintiff is entitled to damages even without the proof of actual injury resulting from the wrongful acts constituting the trespass. A party who proves trespass is entitled without more to general damages which is quantified by relying on what would be the opinion and judgment of reasonable person in the circumstances of the case.”

The two (2) types of possession in law therefore are:

i. Actual physical possession.
ii. Possession imputed by law which is derived from title.

Applying the principle of exclusive possession above to the instant case, the Respondent cannot sustain an action for trespass. I have arrived at the conclusion because the Respondent does not have physical possession of the land and since her title to the land has not been fully established then her relief of damages also fails.

Even if the damages are just mere general damages and not damages in relation to trespass, the law is that damages must flow from the immediate, direct and proximate result of the wrong complained of. In this case that the Appellant wrongfully dispossessed her of peaceful, quiet and exclusive enjoyment of her propriety rights over the properly in dispute for over two decades and still running. The Respondent will still not be entitled to the damages as she has not proved that she has the propriety rights over the property which she has been denied enjoyment of. In a nutshell, the Respondent has not proved her case before the trial Court and is not entitled to any damages.

I therefore resolve this issue in favour of the Appellant against the Respondent.

ISSUE FIVE AND SIX
These issues relate to damages and perpetual injunction. Now I have already spoken at length on the two in issue four above. That being said answering these two issues becomes an academic exercise.

This appeal succeeds in part. The judgrnent of the trial Court delivered on the 27th day of July, 2009 is hereby set aside. No order is made as to cost.

STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

I am in agreement with the reasoning and the conclusion reached therein. I have nothing more to add.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in advance the lead judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.
I am in complete agreement with the reasoning and conclusion contained therein to the effect that the appeal succeeds in part.
I therefore abide by the orders made therein.
I make no order as to costs.

Appearances:

A. I. ADEROGBA For Appellant(s)

E. FATOGUN, with him, C. NWAIWU For Respondent(s)