SILVERMAN SAXTON LTD v. LADIHA (NIG) LTD & ORS (2021)

SILVERMAN SAXTON LTD v. LADIHA (NIG) LTD & ORS

(2021)LCN/15590(CA)

In The Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, December 01, 2021

CA/A/303/2019

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

SILVERMAN SAXTON LIMITED APPELANT(S)

And

1. LADIHA NIGERIA LIMITED 2. THE MINISTER, FEDERAL CAPITAL TERRITORY 3. THE FEDERAL CAPITAL TERRITORY DEVELOPMENT AUTHORITY RESPONDENT(S)

RATIO DECIDENDI

The Supreme Court set out what constitutes an incomplete record of appeal IN THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED VS. OJIOWHOR MONDAY AMADI & ORS. (2011) LPELR-3204 (SC); it is settled that the Court of Appeal lacks jurisdictional competence to hear an appeal based on an incomplete record of appeal. An appeal from the trial Court shall be determined by way of rehearing, and as such, the Court has a duty to rehear fully and consider for the second time the entire appeal, comprising the trial Court’s proceedings and evidence adduced, to such an extent as the grounds of appeal demand; See PANALPINA WORLD TRANSPORT VS. WHRIBOKO (1975) 2 SC 29; OPARAJI VS. OHANU (1999) 9 NWLR (PT. 618) 290; UDEZE VS. CHIDEBE (1990) 1 NWLR (PT. 125) 141 and NWANA VS. FCDA (2007) 11 NWLR (PT. 1044) 59 AT 84 PARAGRAPHS D-F.
An Appellate Court is expected not to hear an appeal on incomplete records; See CHIEF OKOCHI & 2 ORS. V. CHIEF ANIMKWOI & 2 ORS. (2003) 18 NWLR (PT. 251) 1. This is so because, the record of proceedings bind the parties and the Court until the contrary is proved; See SOMMER V. FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (PT. 219) 548; (1992) 1 SCNJ 73; ORUGBO & ANOR. VS. BULARA UNA & 10 ORS. (2002) 9 SCNJ 12; (2002) 9-10 S.C. 61 and CHIEF FUBARA & ORS. VS. CHIEF MINIMAH & ORS. (2003) 5 SCNJ 142 AT 168.
The Court of Appeal always carefully avoids basing its decisions in a case on an incomplete record transmitted to it, without some documentary exhibits and without having the privilege of seeing the documents, because decisions based on an incomplete record are to say the least speculative, and consequently where pronouncements affecting the rights of the parties are made without the help of documentary evidence, the decision would occasion a miscarriage of justice; see MUTUAL LIFE & GENERAL INSURANCE VS. KODI IHEME (2010) LPELR-4568 (CA). PER MOHAMMED MUSTAPHA, J.C.A.

WHETHER THE PRODUCTION OF TITLE DOCUMENTS ENTITLES A PARTY TO A DECLARATION OF TITLE?

It is submitted for the appellant that the land in dispute is located within Abuja, the Federal Capital Territory, and the 1st respondent in proving its title to the land in dispute tendered exhibits A1 to A11; the mere production of these title documents does not automatically entitle such claimant to a declaration of title, because the trial Court still has to interrogate the validity of those documents relied upon, particularly as it relates to whether the document is genuine and valid, duly executed and registered; whether the grantor had the authority to make the grant; whether the grantor had in fact what he purportedly granted and whether it has the effect claimed by the holder; see ROAMINE V ROAMNE (1992) 4 NWLR part 238 page 650, DABO V ABDULLAHI (2005) 7 NWLR part 923 page 181 and KYARI V ALKALI (2001) 11 NWLR part 724 page 412. PER MOHAMMED MUSTAPHA, J.C.A.

BURDEN OF PROOF

The law governing the burden and standard of proof is set out in Sections 131 to 134 of the Evidence Act 2011.
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If the party adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with. Where there are conflicting presumptions, the case is the same as if there were conflicting evidence. The burden of proof is discharged on the balance of probabilities in all civil proceedings; see: AFRICAN PETROLEUM PLC V SOYEMI (2008) ALL FWLR PART 397 PAGE 117; INEC V ACTION CONGRESS (2009) 2 NWLR PART 1126 PAGE 524 AT 612-614 PARA D-H; TEWOGBODE CO. V. AROSI AKANDE & CO (1968) NMLR 404; NWAVU V OKOYE (2009) ALL FWLR PART 450 PAGE 815 AT 843-844 PARA E-D, (2008) 18 NWLR PART 1118 PAGE 29 and EMONULE V. EMANULE (1945) 2 ALL ER. 494 AT PAGE 496. PER MOHAMMED MUSTAPHA, J.C.A.

EFFECT OF A STATUTORY RIGHT OF OCCUPANCY

The position of the law is that a grant of Statutory Right of Occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted. However, Section 5(2) of the Land Use Act does not apply to a situation where the Governor grants Certificate of Occupancy to different persons over the same parcel of land. A latter Statutory Right of Occupancy cannot extinguish the rights of ownership over an earlier grant of Statutory Right of Occupancy except the earlier grant was revoked lawfully, as in this case; that is as prescribed by law. In other words, where there is a conflict in the grant of Statutory Right of Occupancy over the same land, the first in time takes priority. The Supreme Court set the record straight in ALHAJI AMINU DANTSOHO V. ALHAJI ABUBAKAR MOHAMMED (2003) 6 NWLR (PT. 817) 457 AT PAGES 485-485 where it was held that: “With regard to Section 5(2) of the Land Use Act which I have already quoted, the respondent contends that it clearly does not apply to the facts and circumstances of the instant case. The section, it was argued, is only applicable to a conflict between a holder of a right of occupancy granted by Governor and a holder of customary right of occupancy granted by the Local Government…” In this case, it should be noted the right was indeed granted on behalf of the minster, and therefore by him. PER MOHAMMED MUSTAPHA, J.C.A.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Federal Capital Territory, Abuja, presided by Hon. Justice S. E. Aladetoyinbo, delivered on the 14th of January, 2019.

The 1st Respondent by writ of summons and statement of claim dated the 17th of November, 2017 claimed against the Appellant, 2nd and 3rd Respondents the following reliefs:
a. A DECLARATION that the Plaintiff is the Bonafide Allottee and owner of all that property situates and being Plot EM1, Cadastral Zone 07-05, Gbazango, Kubwa, Abuja, measuring approximately 2.37Ha, demarcated by property Beacon Nos. PB22700, PB22700, PB22701, PB22702, PB22703, and back to the starting point allocated by the Minister of the Federal Capital Territory via CONVEYANCE OF PROVISIONAL APPROVAL dated 8/10/2002
b. AN ORDER of this Honourable Court mandating and compelling the 2nd Defendant to order the 1st Defendant to stop work and vacate the parcel of land known and situates at Plot EM1, Cadastral Zone 07- 05, Gbazango, Kubwa, Abuja measuring approximately 2.37Ha, demarcated by property Beacon Nos. PB22700, PB22701, PB22702, PB22703 and back to the starting point.
c. AN ORDER of this Honourable Court compelling the 1st Defendant to abate its nuisance and trespass on Plot EM1, Cadastral Zone 07-05, Gbazango, Kubwa, Abuja measuring approximately 2.37Ha demarcated by property Beacon Nos. PB22700, PB22701, PB227002, PB22703 and back to the starting point.
d. AN ORDER of this Honourable Court compelling the Defendants to pay the Plaintiff the sum of N20,000,000.00 (Twenty Million Naira) being exemplary damages for nuisance, trespass, malicious and wanton destruction of part of the property of the Plaintiff being Plot EM1, Cadastral Zone 07-05, Gbazango, Kubwa, Abuja measuring approximately 2.37Ha demarcated by property Beacon Nos. PB22700, PB22701, PB22702, PB22703 and back to the starting point.
e. AN ORDER of this Honourable Court compelling the 1st Defendant to pay the Plaintiff the sum of N5,608,000.00 (Five Million, Six Hundred and Eight Thousand Naira) only being the cost of replacing the fence of the Plaintiff’s property destroyed by the 1st Defendant.
f. AN ORDER of perpetual injunction restraining the Defendants, their privies, assigns, agents or any person claiming through them or any person at all whether related to the Defendants or not from interfering with the Plaintiffs possessory right or disturbing the Plaintiff’s peaceful possession of Plot EM1, Cadastral Zone 07-05, measuring approximately 2.37Ha demarcated with property Beacon Nos. PB22200, PB22701, PB22702, PB22703 and back to the starting point.
g. AN ORDER of this Honourable Court setting aside the 1st Defendant’s purported letter of allocation of OFFER OF STATUTORY RIGHT OF OCCUPANCY dated 16/02/2011 same being unlawful, illegal, null and void for encroaching the property of the Plaintiff.
h. THE ORDER of this Court awarding the cost of this suit being N5,000,000.00 (Five Million Naira).

At the hearing, the plaintiff, now 1st Respondent called two witnesses in proof of his case, the 2nd and 3rd Defendants, now Respondents filed a joint statement of defence and called one witness; while the 1st Defendant, now Appellant called one witness.

On the 14th of January, 2019 the trial Court entered judgment in favour of the 1st Respondent; dissatisfied, the appellant appealed by a notice and grounds of appeal filed on the 5th of April, 2019 as follows:
GROUND 1:
ERROR IN LAW
The learned trial Judge, Hon. Justice S. E Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja erred in law when he made an order granting title to the land described, purportedly, as Plot No. EM1 Cadastral Zone 07-05 Gbazango Kubwa, Abuja to the 1st Respondent Based on invalid documents of title thereby occasioning a miscarriage of justice.
GROUND 2:
MISDIRECTION
The learned trial Judge, Hon. Justice S. E. Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja misdirected himself when he held that the Minister of FCT authorized Bwari Area Council and other Area Councils within the FCT to allocate land within their various jurisdictions to applicants. Exhibit A3 Conveyance of Provisional Approval issued to the Plaintiff by Bwari Area Council in respect of Plot No. EM1 Cadastral Zone 07-05 Gbazango Kubwa Federal Capital Territory was issued to the Plaintiff by Bwari Area Council with full authority of the Minister of the Federal Capital Territory when Bwari Area Council Allocated Exhibit A3 to the Plaintiff it did so as agent of the minister of FCT the 2nd Defendant” and thereafter proceeded in error to grant declaration of title in respect of the land purportedly described as Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja to the 1st Respondent thereby occasioning a miscarriage of justice.
GROUND 3:
ERROR IN LAW
The learned trial Judge, Hon. Justice S.E Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja, erred in law and relied on the wrong legal principle when he held that “the said Minister of FCT is hereby stopped from denying the agency that existed between him and Bwari Area Council to allocate land, allottee like the plaintiff had changed its position by expending so much money on the land allocated to it by the agent of the Minister” thereafter proceeded in error to grant declaration of title in respect of the land purportedly described as Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja to the 1st Respondent thereby occasioning a miscarriage of justice.
GROUND 4:
MISDIRECTION
The learned trial Judge, Hon. Justice S. E Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja, misdirected himself and went beyond the Evidence on record he held that “by allocating or selling Plot 633 Cadastral Zone F12 District, Abuja to the 1st Respondent. Which is part of the Plaintiff’s plot, the 2nd Defendant who is the Minister of FCT was trying to benefit from his own wrong for that reason the purported allocation of Plot 633 Cadastral Zone F12 Jubi District to the 1st Defendant is hereby declared illegal, null and void” thereafter proceeded in great error to grant declaration of title in respect of the land purportedly described as Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja to the 1st Respondent thereby occasioning a miscarriage of justice.
GROUND 5:
MISDIRECTION
The learned trial Judge, Hon. Justice S.E. Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja, Misdirected himself when he held on one hand that “the Court is aware that allocation of Exhibit A3 to the Plaintiff by Bwari Area Council is defective but not incurably defective as same can be regularized by the issuance of another Right of Occupancy or Certificate of Occupancy by the Minister of FCT, the process of regularization of the Plaintiff’s title documents have commenced by the issuance of Exhibit A5 to the Plaintiff” and yet, on the other hand, proceeded in error to grant declaration of title in respect of the land purportedly described as Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja to the 1st Respondent thereby occasioning a miscarriage of justice.
GROUND 6:
MISDIRECTION
The learned trial Judge, Hon. Justice S.E. Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja, misdirected himself when he held that “it is not legally possible for the Minister of FCT the 2nd Defendant to allocate part of Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja belonging to the Plaintiff to the 1st Defendant because the said plot of the Plaintiff is still valid and subsisting part of same to the 1st Defendant in another name as Plot 633 Cadastral Zone F12 Jibi District is illegal null and void” thereafter proceeded in error to grant declaration of title in respect of the land purportedly described as Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja to the 1st Respondent thereby occasioning a miscarriage of justice.
GROUND 7:
MISDIRECTION
The learned trial Judge, Hon. Justice S.E Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja, Misdirected himself when he held that “having not revoked part of the land of the Plaintiff which was later re-allocated to the 1st Defendant in another name as Plot 633 Cadastral Zone F12, Jibi District, the Plaintiff’s title to the part of its land re-allocated to the 1st Defendant is valid and subsisting in as much as same was never revoked” thereafter proceeded in error to grant declaration of title in respect of the land purportedly described as Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja to the 1st Respondent thereby occasioning a miscarriage of justice.
GROUND 8:
MISDIRECTION
The learned trial Judge, Hon. Justice S.E Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja, misdirected himself when he held that “the Plaintiff was never informed by the minister of FCT or accorded fair hearing before part of it land known as Plot EM1 Cadastral Zone 07-05 Gbazango District, Abuja was excised, renamed and allocated to the 1st Defendant as Plot 633 Cadastral Zone F12 Jibi District, Abuja, the act of the minister of FCT offend the principle of fair hearing or Audi alteram partem which rendered the said allocation to the 1st Defendant a nullity” thereafter proceeded in error to grant declaration of title in respect of the land purportedly described as Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja to the 1st Respondent thereby occasioning a miscarriage of justice.
GROUND 9:
ERROR IN LAW
The learned trial Judge, Hon, S.E Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja, erred in law and applied wrong law when he held that “the 2nd and 3rd Defendant pleaded the Right of Occupancy allocated to the 1st Defendant by the Minister of FCT the 2nd Defendant, but the 2nd Defendant refused to tender the said Right of Occupancy in evidence, the 1st Defendant equally pleaded that it was issued Right of Occupancy by the 2nd Defendant on the 16th February, 2011 and yet not ready for collection but tendered legal search reports issued by the Land Department of FCDA which confirmed that the 1st Defendant was issued Right of Occupancy in respect of Plot 633 Cadastral Zone F12 Jibi District Abuja on the 16th Day of February, 2011, the two legal search reports dated 27/04/2012 and 9/3/2018 were admitted in evidence as Exhibits E1 and E2 respectively, despite Exhibits E1 and E2 the 1st Defendant failed to tender the Right of Occupancy in evidence” and thereafter proceeded in great error to grant declaration of title in respect of the land purportedly described as Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja to the 1st Respondent thereby occasioning a miscarriage of justice.
GROUND 10:
MISDIRECTION
The learned trial Judge, Hon. Justice S.E Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja, misdirected himself when he held that “it is not possible for same plot of land to have two different layout survey plans, the layout survey plan known as Cadastral Zone F12 Jibi District made by the 2nd and 3rd Defendants is illegal, null and void, the layout survey plan which was earlier made by the Bwari Area Council on behalf of the 2nd Defendant is valid and subsisting. Plot 633 Cadastral Zone F12 Jibi District Abuja was actually carved out from Plot EM1 Cadastral Zone 07-05 Gbazango District, Abuja. The Right of Occupancy issued on Plot 633 to the 1st Defendant is worthless” thereafter proceeded in error to grant declaration of title in respect of the land purportedly described as Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja to the 1st Respondent.
GROUND 11:
MISDIRECTION
The learned trial Judge, Hon. Justice S.E Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja, misdirected himself when he held that “when Bwari Area Council allocated Plot EM1 Cadastral Zone 07-05 Gbazango District, Abuja to the Plaintiff, therefore the 2nd Defendant does not have the power to change the name and number of the plot and re-allocate same to 1st Defendant because he was no longer in possession of the plot, the Plaintiff is in possession, the 2nd Defendant cannot give what he does not have” thereafter proceeded in great
error to grant declaration of title in respect of the land purportedly described as Plot EM1 Cadastral Zone, 07-05 Gbazango, Kubwa, Abuja to the 1st Respondent.

From these grounds of appeal, a lone issue was formulated for determination on behalf of the appellant as follows:
WHETHER THE 1ST RESPONDENT PROVED LAWFUL TITLE TO THE PLOT OF LAND PURPORTEDLY KNOWN AS PLOT NO. EM1 CADASTRAL ZONE 07-05, GBAZANGO, KUBWA, ABUJA TO HAVE WARRANTED THE COURT BELOW TO HAVE MADE AN ORDER OF DECLARATION OF TITLE IN FAVOUR OF THE 1ST RESPONDENT.

The 1st Respondent as well as the 2nd and 3rd Respondents formulated an issue for determination each, which is substantially the same as that of the appellant, on the basis of which this appeal will be determined.

The 1st Respondent filed a notice of preliminary objection on the 17th of June, 2019, which is argued at pages 6 to 12 of the 1st respondent’s brief of argument.

The Appellant’s response to the preliminary objection is contained in the amended reply brief.

I will proceed to settle the preliminary objection one way or the other before proceeding to determine the substance of the appeal, if need be.

It is submitted for the 1st Respondent that the Court of appeal lacks the jurisdiction, and so cannot entertain an appeal on an incomplete record of appeal; especially as the Court of Appeal Rules, 2016 provides for the mode of compilation and transmission of records of appeal from the trial Court to the Court of appeal.

That the record of appeal did not also comply with the provisions of Order 8 Rule 7 of the Court of Appeal Rules, 2016; because there is no settlement of records, as the day the record of appeal was filed was the same day the record was transmitted and even served on the parties.

That the Appellant predicated it briefly on the notice purportedly compiled and transmitted on the 5th of April, 2019 and referred to documents that were not transmitted with the record of appeal, thus depriving the Court of the opportunity of viewing the documents in order to determine the appeal; i.e. exhibits D1- D37 and A1 and A3, whose signature parts were omitted.

That the issue of incomplete records is a jurisdictional issue, which can be raised at any time, even by the Court; EGHAREVBA V ERIBO (2010) 9 NWLR part 1199 page 411 and OHAKIM V AGBASO (2010) 19 NWLR part 1226 page 172.

That this Court has a duty not to adjudicate on an incomplete record of appeal; MATHEW OBIDIGWE V THE STATE (2018) LPELR-4464-C and HON ESTHER AYOMOBI & ANR V ETENG JONES WILLIAMS & ORS (2012) LPELR-8032-CA.

It is submitted for the Appellant in response that the options open to a Respondent who says the records in an appeal are not complete or does not reflect the proceedings in the trial Court is to urge the Court to strike out or dismiss the appeal, but to compile and transmit such records as additional records under Order 8 of the Rules of Court or to impeach the record by filing an affidavit; BUHARI V. YABO (2005) 29 WRN 75 at 83 and AKPAN V FBN PLC (2018) 10 NWLR part 1628 page 581.

That the failure of the registrar of the trial Court to invite the parties for settlement of records of appeal is not enough to ground the striking out of the record or the entire appeal, especially as the 1st Respondent had taken steps to file its preliminary objection and respondent’s brief.

That the whole preliminary objection is based on non-compliance with the Rules of this Court by the registrar of the trial Court, and this Court is empowered, in deserving cases to waive the non-compliance.

Learned counsel for the appellant further undertook to compile and transmit a supplementary record of appeal to this Court before the hearing of this appeal.

RESOLUTION OF THE PRELIMINARY OBJECTION:
Admittedly, the appellant was not called to settle the records of appeal before it was transmitted to this Court; and when the record was transmitted, certain relevant documents were not included.

Parties are required to be called for settlement of records, before the record of appeal is eventually transmitted to this Court. In this regard, Order 8 Rules 1 to 3 of the Court of Appeal Rules 2016, state as follows:
“1. The registrar of the Court below shall within sixty days after the filing of a notice of appeal compile and transmit the record of appeal to the Court.
2. In pursuit of Rule 1 above, the registrar shall within fourteen days summon the parties before him to:
(a) Settle the documents to be included in the record of appeal and
(b) fix the amount to be deposited by the appellant to cover the estimated cost of making up and forwarding the record of appeal.
3. The said registrar shall whether any of the parties attend or not, provided the notice has been duly served on the parties to the appeal, proceed to settle and determine those matters in accordance with the provisions Rule 2(a) and (b) of this order.”

Furthermore, Order 8 R7 provides:
“Every record of appeal shall contain the following documents in the order set out:
(a) The index;
(b) The statement giving brief particulars of the case and including a schedule of the fees paid;
(c) Copies of the documents settled and compiled for inclusion in the record of appeal;
(d) A copy of the notice of appeal and other relevant documents filed in connection with the appeal.”

Fortunately, in this case, the story is not exactly the same as it is made out by the 1st Respondent, because, even though the initial record transmitted to this Court was incomplete, the appellant saw to it that the missing parts of the proceedings were transmitted to this Court by way of a further additional record of appeal, transmitted on the 4th of March, 2021, but deemed properly filed on the 23rd of March 2021.

Now, that being the case the appellant can be said to have fulfilled all righteousness. The records are complete, to all intents and purposes.

Ideally, the rules of this Court, as elaborately cited earlier in Order 8 Rules 2 (a) and (b) require that settlement is reached as to the documents to be included in the record of appeal, but clearly that was not done in this case. That being so, can the baby be thrown with the bath water for that reason? I think not; especially in the circumstances of this case, where the appellant has made up for its initial snafu; and more so, as the 1st respondent did not appear to suffer anything as a consequence. The failure of the registrar of the trial Court to comply with the provisions of Order 8 Rules 1 and 2 of the rules of this Court by not inviting the parties to a settlement of the record of appeal is wrong indeed, but that in itself is not enough to ground the striking out of the record of appeal or the entire appeal, doing so will not only be wrong but a disservice to the interest of justice. Accordingly, the preliminary objection is dismissed.

SUBSTANTIVE SUIT:
WHETHER THE 1ST RESPONDENT PROVED LAWFUL TITLE TO THE PLOT OF LAND PURPORTEDLY KNOWN AS PLOT No. EMI CADASTRAL ZONE 07-05, GBAZANGO, KUBWA, ABUJA TO HAVE WARRANTED THE COURT TO HAVE MADE AN ORDER OF DECLARATION OF TITLE HIS FAVOUR.
It is submitted for the appellant that the land in dispute is located within Abuja, the Federal Capital Territory, and the 1st respondent in proving its title to the land in dispute tendered exhibits A1 to A11; the mere production of these title documents does not automatically entitle such claimant to a declaration of title, because the trial Court still has to interrogate the validity of those documents relied upon, particularly as it relates to whether the document is genuine and valid, duly executed and registered; whether the grantor had the authority to make the grant; whether the grantor had in fact what he purportedly granted and whether it has the effect claimed by the holder; see ROAMINE V ROAMNE (1992) 4 NWLR part 238 page 650, DABO V ABDULLAHI (2005) 7 NWLR part 923 page 181 and KYARI V ALKALI (2001) 11 NWLR part 724 page 412.

That the land in dispute is located within the Federal Capital Territory; and the ownership of all lands within the Federal Capital is vested in the Federal Republic of Nigeria, as provided by Section 297 (2) of the Constitution of the Federal Republic of Nigeria, as amended; with the power to allocate such land is the president, who further delegated same to the minister of the Federal Capital Territory; Section 51 (2) of the Land Use Act, 1978, Sections 1 (3) and 18 (b) of the Federal Capital Territory Act. LFN 2004; see also MADU V MADU (2008) 2 SCNJ at 267.

That a scrutiny of the title documents of the 1st respondent will reveal that the documents are incapable of granting title to land within FCT; as exhibit A1 and A2 were issued to China Bao Yao Fu Hai Nig Ltd, the 1st respondent’s predecessor in title, while Exhibits A, B and A1-A3 are all documents from Bwari area council purporting to allocate plot No. EM1 Cadastral Zone 07-05, Gbazango Kubwa, Abuja to China Bao Yao Fu Hai Nig Ltd, and later to Ladiha Nig. Ltd, the 1st Respondent.

That although the provisions of Section 6 (1) (a) makes provision for the grant of customary right of occupancy by the Local Government, a community reading of the Section 297 (2) of the Constitution, 18 (b) of the Federal Capital Territory Act, 49 (1) and 51 (1) of the Land Use Act would reveal that the grant of customary right of occupancy does not have a place in land ownership administration within the Federal Capital Territory; IBRAHIM V OBAJE (2005) 8 WRN 75 at 89.

That evidence of PW2 is not sufficient to establish that Bwari Area council and Ishaq Salihu acting as secretary to the rural land use adjudication committee had the authority of the minister to make grant of the land in dispute to the 1st respondent; see ANYANWU V UZOWUAKA (2009) 7 MJSC part 1 page 1.

That the 2nd respondent to whom authority is delegated to administer land by virtue of Section 18 (b) of the Federal Capital Territory Act cannot sub-delegate that power to Bwari Area Council or Ishaq Salihu; EMUZE V VICE CHANCELLOR (2003) 8 MJSCA PAGE 1 and OKPALAUZEUGBU V. EZEMENARI (2011) 14 NWLR part 1268 page 492.

That the trial Court misconceived the issues in this suit by holding that the 2nd defendant at trial, i.e. the minister was trying to benefit from his own wrong when he purported to allocate the land in dispute to the 1st defendant, for that reason the allocation was null and void. Because this finding is not supported by evidence; JOSEPH V KWARA STATE POLY (2013) 53 WRN 106 AT 138.

That the 2nd Respondent did not allocate the land in dispute to the 1st Respondent and as such there is nothing tying the hands of the 2nd Respondent from making valid allocation of plot 633 Cadastral zone F12 Jibi district Abuja to the appellant.

It is submitted for the 1st Respondent in response that Exhibit A3 was signed by the secretary rural land adjudication committee on behalf of the minister; and also that it is in evidence that the secretary rural land adjudication committee was the zonal land manager, and a staff in the office of the 2nd Respondent at the time of signing exhibit A3 on behalf of the 2nd Respondent.

That it is not in doubt that area councils in the FCT do not have power to allocate land, as it is only the minister that has power to do so; and that Exhibit A3 was not signed by the chairman of Bwari Area council nor was it signed on his behalf; it was granted by the minister and the signatory acted on his behalf.

That also evidence was led to establish that the minister of the FCT maintains a zonal office in the area councils headed by zonal managers under the supervision of the director of urban and regional planning; with the zonal land manager, being an official employed in the office of the minister of the FCT whom the minister delegated part of his functions to.

That the claimant is entitled to rely on the defendant’s pleadings and evidence which support its case; especially as the appellant only tendered search report and receipt of payment for search, which cannot confer title; the only grant or right recognized is right of occupancy and certificate of occupancy; see BULET INTERNATIONAL NIG LTD V OLANIYI (2017) 17 NWLR part 1594 page 260.

The 2nd and 3rd Respondent’s brief was filed on the 15th of October, 2019 but deemed properly filed on the 25^th of November, 2011. They concede the appeal.

RESOLUTION OF THE SOLE ISSUE FOR DETERMINATION:

The 1st Respondent in this case claims that he is the rightful owner to whom the land in dispute, i.e. plot No. EM1 cadastral zone 07-05 Gbazango district was allotted to by the 2nd Respondent through the secretary to the rural land adjudication committee; the secretary being the zonal land manager of the 2nd Respondent at Bwari council.

The land was in the first instance allocated to China Bao Yao Fu Hai Nig. Estate construction Co. Ltd through Exhibit A2, but later, reissued to the 1st Respondent on request for change of ownership.

The 2nd Respondent later issued an order which required all beneficiaries of land allocation within the FCT to submit their title documents for recertification and in compliance the 1st Respondent dutifully complied and was issued documents of title; see Exhibit A5, to await the certificate of occupancy, having duly paid necessary fees. The 3rd Respondent even wrote a letter to the 1st Respondent, exhibit A9, attributing the delay in approving the building permit, to overlapping and conflicting layouts.

In proof of its title, the 1st Respondent tendered exhibits A3, along with A4 to 11; and evidence was led, through DW2 to establish that indeed the zonal land officer of the 2nd Respondent was indeed a staff of the 2nd Respondent; see page 219 of the record of appeal.

The law is settled, beyond doubt that all land in the Federal Capital Territory is vested absolutely in the Government of the Federation, and only statutory right of occupancy can be issued in the Federal Capital Territory, being an urban area. The implication of this is that it is only the Minister of the FCT acting pursuant to Section 302 of the Constitution and Sections 13 and 18 of the FCT Act that can validly allocate land in the Federal Capital Territory; See MADU VS MADU (2008) 6 NWLR PT.1083 PG 296; LAWSON VS AFANI CONSTR. CO. LTD (2002) 2 NWLR PT.752 PG 585 AT 592 and DIVAGE HEALTH & SANITARY SERVICES & ANR V KENUJ INVESTMENT LTD (2018) LPELR- 45975-CA.

Clearly exhibit A3 was not signed by the chairman of Bwari Area Council nor was it signed on his behalf, and its contents are very clear as to what is conveyed, by whom and to whom. It is obviously a grant by the minister of the Federal Capital Territory through his agent, the zonal land manager or the secretary.

It is for the same reasons that I find the finding of the trial Court at page 230 of the record impeccable:
“The minister of FCT is aware that Bwari area council including other area councils within the FCT have no authority to allocate plot of land to the applicants but the minister of FCT authorized Bwari area council and other councils within the FCT to allocate land within their various jurisdictions to applicants.”

I also cannot help but agree with learned counsel for the 1st Respondent that the 2nd respondent effectively ratified the allocation of Exhibit A3 by the zonal land manager in accordance with regulations 4(2) (a), (3), (6), (7), (8) and (9) passed pursuant to Section 46(2) of the Land Use Act and Section 18 of the Federal Capital Territory Act empowering the minister in that regard through exhibit A5.

Contrary to the submissions of learned counsel for the Appellant, the reference to the allocation by the trial Court as defective should be viewed within the context of the minister’s holistic effort at regularizing all allocations by issuance of another right of occupancy; see MALAMI V OHIKHUARE (2019) 7 NWLR part 1670 page 132.

The contention by learned counsel to the Appellant that the 1st Respondent’s title is not valid because it was submitted for regularization, is without basis, not least because the 1st Respondent like all others in that situation simply followed laid down procedure, and waited for its Certificate of Occupancy after submission, and issuance of Exhibit A5. The requirement for regularization did not apply to the 1st respondent alone, it applied and affected all other persons to whom land was allocated before 2005.

This Court is satisfied that the 2nd Respondent, by exhibit A5, among others, ratified exhibit A3; this belief is further reinforced by the conduct of the 2nd and 3rd respondents, and the departments under them.

Once again, the trial Court was right in this regard when it held at page 232 of the record of appeal that:
“All the documentary evidence mentioned above constitute overwhelming evidence that when the Bwari Area council allocated plot EM1 cadastral zone to 07-05 Gbazango Kubwa to the plaintiff, it did so on the authority of the minister of FCT, therefore the 2nd defendant who is the minister of FCT cannot deny the authority given to the Bwari Area council in the face of documentary evidence… ”

The case of the 2nd and 3rd respondent at trial is that a part of the land in dispute formed part of plot 633 Cadastral zone F12 allocated to the appellant by the 2nd respondent; that contention cannot fly, because as rightly submitted for the 1st respondent, its rights subsist, validly, and any subsequent excision purportedly carried out on the land in dispute to the benefit of the appellant is to say the least irregular, and therefore void. Any subsequent allocation of the same land in dispute, or part thereof to any other person cannot lawfully be done by the same minister without revoking the earlier right issued to the 1st respondent.
The pith of this issue is whether the Minister can make a subsequent grant of a Right of Occupancy over the same plot of land to a different person, without first revoking the prior grant. The answer is clearly in the negative. It is important at this juncture to have recourse to the statutory authorities, especially Section 5(1)(a) & (2) of the Land Use Act 1978, which provide thus:
“5(1) It shall be lawful for the Governor in respect of land, whether or not in an urban area:- (a) To grant a statutory right of occupancy to any person for all purposes… (2) Upon grant of a statutory right of occupancy under the provisions of Sub-section (1) of this Section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished. ”
These Sections have been subjected to different interpretations, chief amongst which is that the grant of a statutory right of occupancy by the Governor or in this case the minister, to a different person over the same plot of land immediately extinguishes all existing rights, without the need to revoke a prior existing right; see DABUP V. KOLO (1993) 9 NWLR (PT. 317) AT 254. It is important not to be caught up in the misconception surrounding the application of Section 5(2) of the Land Use Act, 1978, as to whether it is applicable to a conflict between a holder of a right of occupancy granted by the Governor and a holder of customary right of occupancy granted by the Local Government over the same piece of land.
The position of the law is that a grant of Statutory Right of Occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted. However, Section 5(2) of the Land Use Act does not apply to a situation where the Governor grants Certificate of Occupancy to different persons over the same parcel of land. A latter Statutory Right of Occupancy cannot extinguish the rights of ownership over an earlier grant of Statutory Right of Occupancy except the earlier grant was revoked lawfully, as in this case; that is as prescribed by law. In other words, where there is a conflict in the grant of Statutory Right of Occupancy over the same land, the first in time takes priority. The Supreme Court set the record straight in ALHAJI AMINU DANTSOHO V. ALHAJI ABUBAKAR MOHAMMED (2003) 6 NWLR (PT. 817) 457 AT PAGES 485-485 where it was held that: “With regard to Section 5(2) of the Land Use Act which I have already quoted, the respondent contends that it clearly does not apply to the facts and circumstances of the instant case. The section, it was argued, is only applicable to a conflict between a holder of a right of occupancy granted by Governor and a holder of customary right of occupancy granted by the Local Government…” In this case, it should be noted the right was indeed granted on behalf of the minster, and therefore by him.
It was further held by the Apex Court that:
“…Exhibit 4, Defendant’s purported certificate of occupancy is invalid in view of Exhibit 1, the certificate earlier granted to the plaintiff and which conferred on the plaintiff, title to the land. Unless and until Exhibit 1 is revoked as required by law – Section 28 of the Land Use Act, the Governor had no title to confer on any other person by the grant of another Certificate of Occupancy…”
This decision of the Supreme Court is in tune with the general principle of law that a party who proves a better title to land than the opposing party is entitled to succeed; see SALISU V MOBOLAJI (2016) 15 NWLR part 1535 page 242.

Most importantly, in this case, the Appellant, as well as the 2nd and 3rd Respondents failed to tender any allocation letter in favour of the appellant; the implication of which is that the trial Court has nothing to put side by side with that of the 1st Respondent to justifiable arrive at any conclusion in this regard, much less one that will favour the Appellant.

It is not enough to merely tender a search report and receipt for payment, Exhibits E1 and E2, as these documents cannot supplant a title document, because they are not recognized by the Land Use Act. In the same vein, the 2nd and 3rd respondents’ reliance on ministerial approval, exhibit F is not enough for the purpose of proving title to land, because the document, as rightly submitted, is an internal affair of the 2nd and 3rd respondents, and so cannot take the place of a right of occupancy; see Section 26 of the Land Use Act.

It is settled law, and therefore elementary that in an action for declaration of ownership to land, a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case; where this onus is not discharged, the weakness of the other party’s case will not be of help; see LAWAL VS AKANDE (2009) 2 NWLR (PT.1126) 425; CHUKWU VS AMADI (2009) 3 NWLR (PT.1127) 56; USUNG VS NYONG (2010) 2 NWLR (PT.1177) 83 and OGUNIEMILA VS AJIBADE (2010) 11 NWLR (PT.1206) 559.
The claimant must as of necessity prove to the satisfaction of the trial Court that it has a better title than the defendant and the standard of proof is on a balance of probabilities; see KAIYAOJA VS EGUNLA (1974) 12 SC 55; ABAYE VS OFILI (1986) 1 NSILR (PT.15) 134; AKINTOLA VS SOLANO (1986) 2 NWLR (PT.24) 298; EYO VS ONUOHA (2011) 11 NWLR (PT.1257) 1 and MOMOH VS UMORU (2011) 15 NWLR (PT 1270) 217. This onus generally does not shift and must be discharged by satisfactory and cogent evidence;UGWUNZE VS ADELEKE (2008) 2 NWLR (PT 1070) 148; DIM VS ENEMUO (2009) 10 NWLR (PT 1149) 353; KOPEK CONSTRUCTION LTD VS EKISOLA (2010) 3 NWLR (PT.1182) 618; ALI VS SALIHU (2011) 1 NWLR (PT.1228) 227 AND AGBOOLA VS UNITED BANK FOR AFRICA PLC (2011) 11 NWLR (PT.1258) 375.

The trial Court properly evaluated the evidence in the circumstance; this Court has no reason to interfere with the findings of the trial Court. It is for these reasons that I now resolve the sole issue for determination in favour of the 1st Respondent, against the Appellant, and accordingly dismiss this appeal. Judgment of the trial Court is hereby affirmed.
Parties to bear their respective costs.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now, the judgment just delivered by my learned brother, Mohammed Mustapha, JCA. I agree that the appeal lacks merit and I also dismiss it.

BATURE ISAH GAFAI, J.C.A.: I have before now read in draft, the judgment just delivered by my learned brother Mustapha, JCA. I agree with the reasonings expressed therein and the decision arrived at on this appeal. My lord has meticulously and roundedly considered and resolved all the issues in this appeal such that an addition by me will merely amount to repetitions.

For the same reasons elaborately expressed in the lead judgment, I too hereby dismiss this appeal.

Appearances:

S. E. Aruwa, Esq. For Appellant(s)

Adamson Adeboro Esq., with him, Adedapo Adejumo – for 1st Respondent
Onyechi Onumajuru – for 2nd & 3rd Respondent For Respondent(s)