TEESWOOD LTD v. MOHAMMED (2022)

TEESWOOD LTD v. MOHAMMED

(2022)LCN/16433(CA)

In The Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, July 25, 2022

CA/A/732/2017

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

TEESWOOD LIMITED APPELANT(S)

And

YAHAYA MUSA MOHAMMED RESPONDENT(S)

RATIO

THE BURDEN OF PROOF IN AN ACTION FOR DECLARATORY RELIEFS

In an action for declaratory reliefs, it is settled law that the Plaintiff or a party seeking declaratory reliefs has the burden to establish his/her case by both his/her pleadings and evidence. See HON JAMES FALAKE V INEC & ANOR (2016) 18 NWLR (pt.1543) 61 at 149 where the Supreme Court of Nigeria held as follows:
“The onus was on the Appellant seeking declaratory reliefs to establish his case by his pleadings and by his evidence led in support thereof on the preponderance of evidence”
See also OKEREKE V UMAHI (2016)11 NWLR (pt 1524) 438. It is also the position of the law that in a claim for declaration of title as in the instant case, the Appellant must adduce cogent and credible evidence to prove its declaratory reliefs and that the reliefs cannot be granted even on admission of the Defendant. See G. E. INT’L OPERATIONS (NIG)LTD V Q-OIL & GAS SERVICES LTD (2016) 10 NWLR (PT. 1520) 304. PER SENCHI, J.C.A.

THE POSITION OF LAW ON INSTITUTING A CLAIM FOR DECLARATION OF TITLE TO LAND

It is a trite principle of law that it is only a legal or juristic person that can enter into a business transaction. A juristic person is defined in the case of F.U.T MINNA & ORS V OKOLI (2011) LPELR 9053 (CA) as “either a natural person in the sense of a human being of the requisite capacity or an entity created by the law which includes an incorporated body and special artificial being created by legislation vested with the capacity to sue or be sued” see PHCN PLC & ANOR V AG SOKOTO STATE & ANOR (2014) LPELR (CA), ONYUIKE V THE PEOPLE OF LAGOS STATE & ORS (2013) LPELR 24809 (CA).
The next question is whether Uhuru and Associates is a juristic person? I answer in the negative. The Court of Appeal in the case of MAINA V ABDULLAHI (2013) LPELR 21822 CA held that: “A business name is nor accorded a legal personality. It is not recognized as a legal person capable of defending action in the law Court.” PER SENCHI, J.C.A.

WHETHER OR NOT A REGISTERED BSINESS NAME AND ITS PROPRIETOR ARE REGARDED AS ONE

The position of the law is that a registered business name and its proprietor are regarded as one and the same person because the business name has no legal personality of its own independent of the proprietor. See FCDA V UNIQUE FUTURE LEADERS INTERNATIONAL LTD (2014) 17 NWLR (pt 1436) 213. PER SENCHI, J.C.A.

THE POSITION OF LAW ON THE REGISTRATUIN OF A LIMITED LIABITY COMPANY

The provisions of SECTIONS 2(1), 2(3) AND 3 OF LAND (PERPETUAL SUCCESSION) ACT (CAP 98) LFN 1958 VOLUME (IV) considered in the case of ANYAEGBUNAM V. OSAKA (Supra) by the Supreme Court is not applicable to Uhuru Associates, whether registered or unregistered as a business name, in relation to acquiring and holding land. This is because Section 3 of the Act states:
“The certificate of incorporation shall vest in such a body corporate all land or any interest therein, of what nature and tenure so ever, belonging to or held by any person or persons in trust for such community, body or association of persons.”
Section 3 above must be read along with Section 2(3) of the Act. Further to this regard, an Incorporated Trustees, in whatever name called, is registered under Part C of the Companies and Allied Matters Act, 2020 (As Amended) while the subject of the appeal, i.e., challenge on the status of Uhuru Associates, unregistered or registered is under Part B of the Companies and Allied Matters Act, 2020 (As Amended). A limited liability company or corporate entity is registered under Part A of the Companies and Allied Matters Act, 2020 (As Amended). PER SENCHI, J.C.A.

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/944/2014 delivered on the 29th day of March, 2017 by A, S. ADEPOJU, J.

The Appellant, as Plaintiff before the lower Court commenced this action via a Writ of Summons and Statement of Claim dated and filed on the 26th day of June, 2014, wherein it claimed as follows:
a. A declaration that the land situate at Plot MF1 Funtaj road, Kuje belongs to the Plaintiff,
b. declaration that the Defendant’s occupation of Plot MF1 Funtaj road, Kuje, property of the Plaintiff is illegal and unlawful.
c. A declaration that by virtue of reliefs sought in paragraphs (a) and (b) the Plaintiff is entitled to structures illegally erected on its land by the Defendant or any person at all.
d. An order granting the Plaintiff ownership of the Land.
e. Perpetual injunction restraining the Defendants, his agents and privies from further trespass on the said land, property of the Plaintiff.
f. An order for payment of N100,000,000 to the Plaintiff being the Plaintiff’s expected returns on investment on the Land between the periods of the Defendant’s continued trespass on the Land and occupation till date. The Plaintiff intended erecting a housing estate on the land, which could have been rented out for both commercial and residential purposes. The current rent rate at Kuje is N500,000 per annum.
g. Damages.
h. Costs.
i. Further or other relief.
(See pages 1-6 of the Record of Appeal)

The Respondent, as Defendant before the lower Court, filed a Memorandum of Appearance on the 3rd day of November 2014 and a Statement of Defence on the 9th day of February, 2015. (See pages 53 and 61-82 of the Record of Appeal respectively).

The Appellant filed a Reply to the Defendant/Respondent’s Statement of Defence on the 10th day of March, 2015. (See pages 83-90 of the Record of Appeal).

The Defendant/Respondent filed his Final Written Address on 11th November, 2016. (See pages 129-141 of the Record of Appeal). On its part, the Plaintiff/Appellant filed its Final Written Address on 22nd November, 2016. (See pages 142-158 of the Record of Appeal).

On the 29th day of March, 2017, the trial Court delivered its judgment wherein it held as follows:
“The defendant is said to be in actual possession of the land. He has built structures on it. The Plaintiff has not been able to prove that he has a better title or better right to possession. His entire claim must fail and it is accordingly dismissed.”
(See page 192 of the Record of Appeal)

Dissatisfied with the decision of the lower Court, the Appellant filed a Notice of Appeal dated and filed on the 6th day of June, 2017. The Grounds of Appeal as contained in the Notice of Appeal are reproduced hereunder (without their particulars) as follows:
GROUND ONE
The learned trial Judge was wrong in law to hold that an unregistered association cannot own and transfer landed property – pre-incorporation – through its proprietors or agents and therefore concluded that the transfer of title to the Appellant was void.
GROUND TWO
The learned trial Judge erred in law to hold that the Appellant had not been able to prove that it had better title or better right to possession.

The Record of Appeal was transmitted on 25th October, 2017 but deemed duly compiled and transmitted on 19th November, 2018. On 20th December, 2018, the Appellant filed its Brief of Argument which was settled by James Okoh, Esq. The Respondent’s Brief of Argument, which was settled by Usman Adams Esq, was filed on 10th July, 2019, and deemed properly filed on 1st February, 2022. On 18th May, 2020, the Appellant filed a Reply Brief of Argument which was deemed properly filed on 1st February, 2022.

ISSUES FOR DETERMINATION
In the Appellant’s Brief of Argument, learned Counsel distilled two Issues for the determination of this appeal thus:
(1) Whether the lower Court was right when it held that the Appellant did not satisfy the requirement of law on proof of title to land (“Root of Title Issue”)
(2) Whether the transaction evidenced by an Irrevocable Power of Attorney and Receipts between Uhuru Associates and the Appellant was void ab-initio because the former lacked the capacity to hold land in its name.

In the Respondent’s Brief of Argument, learned Counsel adopted and argued the issues distilled by the Appellant for the determination of this appeal.

ARGUMENTS OF COUNSEL
APPELLANT’S SUBMISSIONS
ISSUE 1
At paragraphs 16-36 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that it is clear from the evidence elicited at trial that by the purported dates of the Respondent’s Irrevocable Power of Attorney and Customary Certificate of Occupancy (respectively) which the Respondent claims to be his root of title, the land was already vested in the Appellant by a temporary receipt dated 20th February 2002, Irrevocable Power of Attorney dated 15th March 2002 and a customary certificate of occupancy registered at Number 6311, Volume 2, Land Registry Office, Kuje Area Council, FCT and thus neither the purported irrevocable power of attorney issued by Shadrack Oche on behalf of the Respondent nor the Respondent’s purported customary certificate of occupancy registered at No 8362 in Volume Ill, Land Registry Office, Kuje Area Council, FCT could have validly vested title in the land on the Respondent as Shadrack Oche had no title in the land to vest in the first place. He relied on the case of OLAGUN V. AKERELE (2012) LPELR-9791 (CA). Counsel submitted further that the Certificate of Occupancy put forward by the Respondent which he says was granted by the Land Registry Office, Kuje Area Council, FCT dated 6 April 2004 is void to the extent that it purports to give the Respondent any right in respect of land that is validly vested in the Appellant and had been so vested for at least 11 months prior to the purported issuance of the Certificate of Occupancy. Counsel contended to the effect that the Appellant sufficiently satisfied the requirements to prove his entitlement to the title in land and a claim for trespass by providing sufficient documentary evidence in the way of duly authenticated title documents, as well as eliciting evidence of long and actual possessory right by having to erect a parameter fence over the land in 2004 to wade off trespassers like the Respondent. He relied on the case of OKUNADE V. OLAWALE (2014)10 NWLR (PT. 1415) 207 AT 278 G-H, 279 A-B. Counsel contended that the lower Court in granting the Respondent title to land placed undue reliance on the fact that the Respondent was in actual possession, thus, the Court failed to take into consideration that actual possession does not equate ownership or validate one’s title to land and that the Appellant has legal possession of the land which can be called constructive possession. He cited the cases of YUSUF V. ADEGOKE (2007)11 NWLR (PT. 1045) 332 and CARRENA V. AKINLASE.

At paragraphs 37-46 of the Appellant’s Brief, Counsel submitted to the effect that it is trite that where two or more persons claim title to land or a right of occupancy over the same land, the first in time takes priority as it is stronger in law. He submitted further that in the instant case, the Appellant derived its claim to the property from Mr. Chimezu Azuonwu, the proprietor of Uhuru Associates and a temporary receipt evidencing payment of N650,000 dated 20th February 2002 was issued, and on 15th March 2002, both parties executed an Irrevocable Power of Attorney; but on the other hand, the Respondent claimed to have derived his title from one Mr. Shadrack Oche on behalf of Uhuru Associates after purchasing the land on 14th March 2002, weeks after the Appellant had made its purchase and was issued a similar certificate of occupancy on 6th April 2004.

At paragraphs 47-52 of the Appellant’s Brief, learned Counsel submitted that it is clear from the evidence that the Respondent had notice of the Appellant’s interest on the land as at 14th March 2002 when he allegedly acquired the land from one Shadrach Oche, and the fact that the Respondent unlawfully entered the Appellant’s land even when he found the parameter fence barricading the land from trespassers like him, or the Respondent refused to conduct the slightest due diligence on the nature of the land, dealt the final blow to his tottering case; and the Respondent failed to prove that he was a bonafide purchaser of the legal estate of the land without notice of the prior interest of the Appellant. He cited the cases of OLAGUN V. AKERELE (SUPRA) AT 29B-F; ERO V. TINUBU (2012) 8 NWLR (PT. 1301) 109 AT 129B-D.

At paragraphs 53-59 of his Brief, learned Appellant’s Counsel submitted to the effect that the Appellant has fully discharged the burden of proof placed on it and thus the burden to prove otherwise shifted to the Respondent who failed to discharge the burden. He submitted further that having regard to the materials on the Record, the lower Court was wrong to grant title to the Respondent.

At paragraphs 60-66 of the Appellant’s Brief, Counsel submitted to the effect that by erecting a parameter fence in 2004, the Appellant has shown through the evidence that it had actual possessory right at the material time of the trespass and therefore entitled to claim for damages in trespass. He relied on the cases of ANYANWU V. UZOWUAKA (2009)13 NWLR (PT. 1159) 445 AT 488 E- G; ORIORIO V. OSAIN (2012)16 NWLR (PT. 1327) 560 AT 583 H-584 A-C. He submitted further that the Respondent did not only invade the private property of the Appellant by entering the land, but went as far as erecting illegal structures on the land as further evidence of willful trespass and thus the Respondent is entitled to lose the illegal structures erected on the Appellant’s land to the Appellant on the principle of Quid quid plantatur solo solo cedit.

ISSUE 2
At paragraphs 67-78 of the Appellant’s Brief, Counsel submitted to the effect that the law is clear on the point that an unregistered association can own and transfer landed property pre-incorporation but such acts of ownership and transfer must be done through its proprietors, agents or trustees. He relied on the case of ANYAEGBUNAM V. OSAKA (2000)5 NWLR (PT. 657) 386. Counsel submitted in agreement with the Respondent that an unregistered business name has no legal personality and therefore cannot transfer land in its name; thus, both the Appellant and the Respondent had acquired defective titles from the same vendor, Uhuru Associates, and it is ironic for the Respondent to claim possession of land which he supposedly derived from a vendor that had no legal capacity to transfer such land.

In conclusion, learned Counsel to the Appellant urged the Court to enter judgment in favour of the Appellant and grant its entire reliefs contained in the Statement of Claim.

RESPONDENT’S SUBMISSIONS
ISSUE 1
At paragraphs 4.3-4.20 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submitted to the effect that the transaction giving rise to the claim of the Appellant over the land in issue is void ab initio as an unregistered business name is not robed with the legal personality to own land and as such cannot enter into any transaction to give what it does not have. He submitted further that the unregistered Uhuru Associates that supposedly transferred the land in dispute to the Appellant is not a juristic person, and it is trite law that only a legal or juristic person can enter into a business transaction. He cited the cases of F.U.T. MINNA & ORS V. OKOLI (2011) LPELR 9053 (CA); PHCN PLC & ANOR V. AG SOKOTO STATE & ANOR (2014) LPELR (CA); ONYUIKE V. THE PEOPLE OF LAGOS STATE & ORS (2013) LPELR 24809 (CA). Counsel submitted further that as distilled by the trial Court, the offer of the terms of grant/conveyance of approval for the land in dispute was issued in the name of Uhuru Associate on 11th November 1999 and PW2 testified that he solely owned the business name (Uhuru Associate); a Business Name registered in 2012, 11 years after the grant/conveyance of the land in dispute is deemed not to be in existence as at the time the purported grant was made and any transaction made before the said registration is null and void as it was not an entity empowered by any law to own interest in land and cannot enter into any contract or transaction and/or own land in its unincorporated name, save through trustees. He relied on the case of BANKOLE & ORS. V. EMIR INDUSTRIES LTD (2012) LPELR-19719 (CA). Counsel submitted further that the cases of ANYAEGBUNAM V. OSAKA and FAWEHINMI V. NBA No 2 relied upon by the Appellant have no bearing with the instant case, thus, the Court should discountenance them.

ISSUE 2
At paragraphs 5.2-5.17 of the Respondent’s Brief of Argument, learned Counsel submitted to the effect that the Appellant failed at the lower Court to discharge the burden of proving title to the land in dispute, as it failed woefully to establish any of the ingredients enunciated in the case of OKUNADE V. OLAWALE (2014)10 NWLR (PT. 1415) 207, P. 278, PARAS G-H, 279 PARAS A-B. Counsel submitted further that at trial, the Appellant made an attempt to show possession by merely stating in its pleadings that it put up a perimeter fence over the land in dispute, but it failed to put anything before the trial Court to show the existence of such perimeter fence, and the Appellant only asserted that it was in possession when actually, it was the Respondent who has been in possession since 2002. Counsel submitted further that the argument of the Appellant that the issuance of Certificate of Occupancy over the same plot of land immediately raises the question of priority and that where two or more persons claim title to land or a right of occupancy over the same land, the first in time takes priority as it is stronger in law is misplaced and of no moment in this case because the Appellant has failed to show a valid title to the land in dispute. Learned Respondent’s Counsel contended to the effect that contrary to the argument of the Appellant that the Respondent is a trespasser, merely stating the existence of a thing does not necessarily put the thing in existence. He contended further that a claim in trespass presupposes that the Plaintiff is in possession of the land at the time of the trespass, and contrary to the Appellant’s pleadings, the Appellant never showed that it was indeed in possession as at the time of the trespass. Counsel submitted that the Appellant cannot be heard to be claiming damages for trespass when the statement of claim and the evidence does not support the claim, and it is trite that where a statement of claim does not support the claim, no reasonable cause of action is disclosed. He relied on the case of OLORIODE V. OYEBI (1984) NSCC Vol. 15. Learned Counsel to the Respondent urged this Court to resolve Issue 2 in favour of the Respondent.

In conclusion of his Brief, Counsel to the Respondent urged the Court to dismiss this appeal for lacking in merit.

APPELLANT’S REPLY
In response to the argument in paragraph 4.9 of the Respondent’s Brief of Argument, learned Counsel to the Appellant submitted that the case of F.C.D.A V. UNIQUE FUTURE LEADERS INTL cited by the Respondent’s Counsel is clearly distinguishable from the present case. He submitted further that the trial Court failed to consider the documents put forward by the Appellant in proof of its title. Counsel submitted further that in the event that this Court finds that Uhuru Associates lacked the capacity to transfer interest in land on the basis of its unregistered status, there is no alternative document tendered by the Respondent to show contrary ownership, thus, this Court is urged to rely on the equitable principle that “equity regards as done, that which ought to have been done” to hold that the Appellant at the very least acquired an equitable interest in the land.

It is the submission of Counsel to the Appellant that based on the principle of ratification, notwithstanding that the business name was registered in 2012, the testimony of PW2, the proprietor of the business name ratified the sale made in 2002 when it purportedly did not have the capacity to own or transfer interest in the land; PW2’s evidence is enough to confer legitimacy of title on the Appellant. Counsel submitted that it is wrong for the Respondent to claim constructive and actual possession of the property on the basis that he has been in possession since 2002 after acquiring the land and thereafter erecting structures with people living in them. He contended that acts of long possession amount to mere probability of ownership and the party’s claim fails upon proof of a good root of title by the other party, unless the possession is of such nature as to oust the title of the true owner. Counsel contended further that where the Plaintiff proves a good title, the Defendant’s long possession is that of a trespasser or a squatter and would not enable the latter to succeed against the true owner. He relied on the case of ADEGBITE V. OGUNFAOLU (1990)4 NWLR (PT. 146) 578 AT 590 PARA A-B. The Appellant’s Counsel submitted that the findings of the lower Court is a miscarriage of justice and should be set aside as it is perverse because it ignored the facts or evidence led by the Appellant. He relied on the cases of FCDA V. UNIQUE FUTURE LEADERS INTL and KALU V. AGU (2014) LPELR-22849 (CA). Learned Appellant’s Counsel submitted further that contrary to paragraph 4.20 of the Respondent’s Brief, the Appellant has placed sufficient materials to entitle him to ownership of the property. In conclusion, Counsel urged the Court to allow this appeal and grant the reliefs sought.

RESOLUTION OF ISSUES
I will determine this appeal based on the issues submitted for determination by the Appellant’s Counsel and adopted by the Respondent’s Counsel.

The Appellant formulated two issues for the determination of this appeal. The issues are:
(a) Whether the lower Court was right when it held that the Appellant did not satisfy the requirement of law on proof of title to land (Root of title).
(b) Whether the transaction evidence by an irrevocable power of attorney and receipts between Uhuru Associates and the Appellant was void ab initio because the former lacked the capacity to hold land in its name.

I will however consider and determine the two issues together.

ISSUES ONE AND TWO
The Appellant’s Grounds 1 and 2 centers on the complaints of the Appellant that the learned trial Judge was wrong in law to hold that an unregistered Association cannot own and transfer landed property – pre-incorporation through its proprietors or agents and therefore concluded that the transfer of title to the Appellant was void, and that the learned trial Judge erred in law to hold that the Appellant had not been able to prove that it had a better title or better right of possession.

Issue one is culled from Ground two, while Issue Two is culled from Ground One. Then, the Appellant’s Counsel submits at paragraphs 17-46 of the Appellant’s Brief of Argument to the effect that the Appellant adduced evidence that it acquired the land from the proprietors of Uhuru Associates, one Surveyor C. L. Azuonwu and Henry Osuji at the sum of N650,000.00 by purchase on 20th February, 2002. According to the learned Counsel, a temporary receipt was issued and an Irrevocable Power of Attorney executed by parties on 20th February, 2002. The Appellant at the lower Court tendered documents that were admitted in evidence to prove title to the disputed land.

Learned Counsel to the Appellant submits that though the Respondent claims title to the property from the same grantor i.e., Uhuru Associates via one Shedrack Oche on 14th March, 2002, in terms of priority of interest, the Appellant’s interest came first as it is settled that where the equities are equal, the first in time shall prevail; that the Appellant acquired the land on 20th February, 2002 as against that of the Respondent on 14th March, 2002.

The Respondent, in his Brief of Argument on the other hand, submits at paragraphs 4.3 – 4.19 to the effect that the lower Court’s findings was correct that Uhuru Associates who acquired the land in 1999 was a Business Name and at the time of acquisition of the land, the said Business Name was not registered and the property was transferred to the Appellant by an unregistered Business Name. (He refers to the Record of Appeal at pages 186-191).

Now I have perused the processes filed in this case by both parties before the lower Court, including the evidence adduced in support of their respective claims. The claims of the Appellant at the lower Court are declaratory in nature that the property in dispute belongs to the Appellant and an order granting ownership of the land to the Appellant.

In an action for declaratory reliefs, it is settled law that the Plaintiff or a party seeking declaratory reliefs has the burden to establish his/her case by both his/her pleadings and evidence. See HON JAMES FALAKE V INEC & ANOR (2016) 18 NWLR (pt.1543) 61 at 149 where the Supreme Court of Nigeria held as follows:
“The onus was on the Appellant seeking declaratory reliefs to establish his case by his pleadings and by his evidence led in support thereof on the preponderance of evidence”
See also OKEREKE V UMAHI (2016)11 NWLR (pt 1524) 438. It is also the position of the law that in a claim for declaration of title as in the instant case, the Appellant must adduce cogent and credible evidence to prove its declaratory reliefs and that the reliefs cannot be granted even on admission of the Defendant. See G. E. INT’L OPERATIONS (NIG)LTD V Q-OIL & GAS SERVICES LTD (2016) 10 NWLR (PT. 1520) 304.

Further, a claim for declaration of title could also be employed where the Plaintiff conceives he has a right in the subject matter. See ADIGUN V. A.G. OYO STATE (1987)1 NWLR (PT. 53) PAGE 678, IGBOKWE V UDOBI (1992) 3 NWLR (PT. 228)214 and DANTATA V MOHAMMED, (2000) 7 NWLR (PT. 664) Page 176.

Now, the pleadings and evidence as shown on records before the lower Court is that in 2002, there was negotiation for sale of land described as Plot No. MF1 located at Phase AA1 Layout Extension Kuje Area Council. The Appellant purchased the parcel of land i.e., Plot MF1 from Uhuru Associates, the original allottee of Plot MF1 on 20th February, 2002 and a temporary receipt was issued to the Appellant and an irrevocable power of attorney was executed between Uhuru Associates acting as donor and the Appellant as donee on 15th March, 2002 and the interest of the Donor was transferred to the Donee. (See paragraphs 3-5 of page 3 of the Record of Appeal) and (See also the evidence of Mudiaga Ifeta at paragraph 5 and 6 of his Witness Statement on Oath at page 8 of the Record). Then at paragraph 5 of the Respondent’s Statement of Defence, he avers that Uhuru Associates was not registered and therefore could not have legal personality to transfer the said plot to the Plaintiff. (See paragraph 5 of the Statement of Defence at page 62 of the Record of Appeal).

Further, the evidence of Chimezie Azuonwu PW2, at paragraphs 6, 7, 8, 9 and 10 of his Witness Statement on Oath at page 86 of the Record states clearly that PW2, a staff of Kuje Area Council, Plot MF1 AA1 Layout was granted to his unregistered company i.e., Uhuru Associates and this information was disclosed to the Appellant’s Managing Director. Under cross-examination, PW2 testified as follows:
Question: Can you tell the Court when the land was allocated to you?
Answer: 1999
Question: At the time the land was allocated the name of your Uhuru and Associates was not registered?
Answer: It was not registered.
Question: Tell the Court when Uhuru and Associates was registered
Answer: 2012
Question: And when was the land sold to Teeswood Limited?
Answer: Between 2001 and 2002
Question: Who owns Uhuru Associates?
Answer: I own it
(See page 171 of the Record of Appeal)

PW2 further testified under cross-examination as follows:
Question: In your paragraphs 9, 10 and 11 of the witness statement on oath, at the time of allocation and even at the time of sale to Teeswood, Uhuru Associates was not registered?
Answer: It was not registered.
(See page 171 of the Record of Appeal)

At the conclusion of evidence and adoption of Final Written Address, the lower Court at pages 187-192 of the Record of Appeal held as follows:
“The facts that could be evinced from the evidence of the Plaintiff witness is that the offer of the terms of grant/conveyance of approval for the land in dispute was issued in the name of Uhuru and Associates on the 11th of November, 1999. According to PW3, he owned the unregistered business name and as a result of his employment at the Kuje Area Council, he used Henry Osuji’s name in all the transactions involving Uhuru and Associates including sales of land. This reason accounted for why Henry Osuji executed the irrevocable power of attorney (exhibit A2) on behalf of Uhuru and Associates an unregistered business name. What then is the implication of this? It is a trite principle of law that it is only a legal or juristic person that can enter into a business transaction. A juristic person is defined in the case of F.U.T MINNA & ORS V OKOLI (2011) LPELR 9053 (CA) as “either a natural person in the sense of a human being of the requisite capacity or an entity created by the law which includes an incorporated body and special artificial being created by legislation vested with the capacity to sue or be sued” see PHCN PLC & ANOR V AG SOKOTO STATE & ANOR (2014) LPELR (CA), ONYUIKE V THE PEOPLE OF LAGOS STATE & ORS (2013) LPELR 24809 (CA).
The next question is whether Uhuru and Associates is a juristic person? I answer in the negative. The Court of Appeal in the case of MAINA V ABDULLAHI (2013) LPELR 21822 CA held that: “A business name is nor accorded a legal personality. It is not recognized as a legal person capable of defending action in the law Court.”
In the authority of FCDA V UNIQUE FUTURE LEADERS INT’L LTD cited by the Defendant’s Counsel, Talifeezal Quran was a registered business and the Court of Appeal held thereon as follows:
“Capacity to own land cannot be equated with capacity to merely sue and be sued, the trial Court was convinced from the evidence available to it that the 3rd Appellant is a juristic person, capable of acquiring title to land in its name, neither in this Court and the argument that the 1st and 2nd Appellant have authority to grant rights of occupancy to anyone cannot mean that to include a business name as the 3rd Appellant”
The Court went further to hold in the case of BANKOLE & ORS V EMIR INDUSTRIES LTD (2012) LPELR 19719 (CA) thus:
“An unincorporated body is not a juristic person and cannot enter into any contract or transaction and/or own land in its unincorporated name save through trustees that are natural person.”
On the difference between incorporated and unincorporated bodies, the Supreme Court in the case of ONUEKWUSI & ORS V THE REGISTERED TRUSTEE OF THE CHRIST METHODIST ZION CHURCH (2011) LPELR 2702 SC held:
“A general knowledge we all know that there are incorporated and unincorporated bodies/organizations. The former is an association of persons with distinct legal personality such as companies. The latter deals mostly with partnership i.e relationships between person carrying on business in common; fetching them profits or rewards. Other bodies include cooperative societies which are formed by individual such as farmers, traders and producers of various goods for commercial purposes. Such a society once registered has the advantage of becoming a body corporate with perpetual succession and has power to hold property and enter into contract…”
An unregistered business name is not an unincorporated body or organization. The authorities of FAWEHINMI V N.B.A. supra cited by the Plaintiff’s Counsel does not have any bearing to this case at hand. The authority borders on the representative capacity to sue and be sued on behalf of an unregistered name and not capacity to own land. Also, the case of ANYAEGBUNAM V OSAKA (supra) relied on by the Plaintiff does not add any value to the Plaintiff’s case; as it dealt with appointment of trustee or trustees for unregistered or unincorporated body which is made up of aggregate of persons.
In the case at hand, Uhuru and Associates is an unregistered business; Mr. Henry Osuji who executed the irrevocable power of attorney on behalf of Uhuru and Associates is not a proprietor of the unregistered business name. And neither is he a partner in Uhuru and Associates. I am fortified in my conclusion because there is no evidence of same before the Court. The testimony of PW3 (Mr. Azonwu) is that Uhuru and Associates was registered in 2010 as a business name in effect there was no party in existence in 1999 when the offer of terms of grant/conveyance of approval for the disputed plot was issued. And when the transaction for the sale of the disputed plot to the Plaintiff took place in 2002, there was no party recognizable by law as the donor of the irrevocable power of attorney (exhibit A2). Uhuru and Associates does not have the capacity to own land with the name and neither does it have capacity to create power of attorney in favour of the Plaintiff. The doctrine of Nemo Quod Non Habet is apt as a party cannot be seen to give what he does not have.
The transaction between Uhuru and Associates and the Plaintiff (Teeswood Nigeria Limited) is void ab- initio. The Supreme Court per Adekeye JSC held in the case of GOLD MARK NIGERIA & ORS V IBAFON COMPANY LTD & ORS (2012) LPELR 9349 SC thus:
“Where a contract is entered into by a non-juristic person such a contract is null and void”
It is on this note that I entirely agree with the submission of the learned Counsel to the Defendant that the irrevocable power of attorney and the receipts in respect of the disputed property executed in favour of the Plaintiff by Uhuru and Associates are null and void and I so hold. Now next question is who has a better right of possession between the Plaintiff and the Defendant?
Both the Plaintiff and the Defendant claimed to have derived their title from the non-existing Uhuru and Associates. I found this case to be intriguing as it is a case of “cunning man die, cunning man bury him”
In the case of GODWIN EGWU V DURO OGUNKEHIM SC/529/96 decided on 28th February, 1969, the Supreme Court held.”
“If it be alleged that someone in possession of land is a trespasser, the person so alleging has the onus of showing that he has a better right to possession which was disturbed and unless that onus is discharged the person so alleging cannot defeat the rival party”
The Defendant is said to be in actual possession of the land. He has built structures on it. The Plaintiff has not been able to prove that he has a better title or better right to possession. His entire claim must fail and it is accordingly dismissed.” The learned Counsel to the Appellant submits at paragraphs 68-78 of the Appellant’s Brief of Argument to the effect that unregistered organization can own land through its proprietors. He refers to the question and answer during cross-examination of PW2 by the Respondent’s Counsel and contends that it could be gleaned from PW2’s evidence that everything that was done to transfer the land to the Appellant was done by the Uhuru Associates acting through its proprietors and/or agents. He contends that registered association can own and transfer landed property pre- incorporation but such acts of ownership and transfer must be done through its proprietors, agents or trustee. I have also seen the arguments of the Respondent’s Counsel at pages 4.5 – 4.13 of the Respondent’s Brief of Argument on the definition of a juristic person and the several cases relied by Counsel to contend that the allocation to Uhuru Associates of the land in dispute ab initio is void in that it was granted to an unregistered business name.

Now, I have seen the interesting arguments of the learned Counsel to the Appellant on pre-incorporation transactions of a business name. The position of the law is that a registered business name and its proprietor are regarded as one and the same person because the business name has no legal personality of its own independent of the proprietor. See FCDA V UNIQUE FUTURE LEADERS INTERNATIONAL LTD (2014) 17 NWLR (pt 1436) 213. In other words, even if I should proceed with the limp argument on pre-incorporation contract of Uhuru Associates, the pre-incorporation contract is void ab initio. This is because the allocation ought to have been in the name of PW2, the proprietor, trading under the name and style of Uhuru Associates and not the other way round in which the Appellant’s Counsel contends. In any event, an unincorporated association does not legally exist and must act through its appointed representatives.
The provisions of SECTIONS 2(1), 2(3) AND 3 OF LAND (PERPETUAL SUCCESSION) ACT (CAP 98) LFN 1958 VOLUME (IV) considered in the case of ANYAEGBUNAM V. OSAKA (Supra) by the Supreme Court is not applicable to Uhuru Associates, whether registered or unregistered as a business name, in relation to acquiring and holding land. This is because Section 3 of the Act states:
“The certificate of incorporation shall vest in such a body corporate all land or any interest therein, of what nature and tenure so ever, belonging to or held by any person or persons in trust for such community, body or association of persons.”
Section 3 above must be read along with Section 2(3) of the Act. Further to this regard, an Incorporated Trustees, in whatever name called, is registered under Part C of the Companies and Allied Matters Act, 2020 (As Amended) while the subject of the appeal, i.e., challenge on the status of Uhuru Associates, unregistered or registered is under Part B of the Companies and Allied Matters Act, 2020 (As Amended). A limited liability company or corporate entity is registered under Part A of the Companies and Allied Matters Act, 2020 (As Amended).
Section 37, now Section 42 of the Companies and Allied Matters Act, 2020 (as amended) provides as follows:
“As from the date of incorporation mentioned in the certificate of incorporation, the subscriber of the memorandum together with such other persons as may become members of the company, shall be a body corporate by the name contained in the memorandum, capable of exercising all the powers and performing all functions of an incorporated company including the power to hold land, and having perpetual succession, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as mentioned in this Act.”
Section 37 of the Companies and Allied Matters Act now Section 42 of the Act with the recent (amendment) was considered in the case of FCDA V. UNIQUE LEADERS (supra) and this Court held that a business name does not have the requisite capacity to hold land in its name because the Act did not say so except through such trustees.

Learned Counsel also submits that if Uhuru Associates, an unregistered business name cannot transfer land to the Appellant, then both the Appellant and the Respondent had acquired defective titles.

I agree with the submission of learned Counsel that both the Appellant and the Respondent have defective titles, having traced their Root of Title to Uhuru Associates. However, the case of ADEGBITE V. OGUNFAOLU (Supra) is not helpful to the Appellant. By the Records in this appeal, it is shown that the Respondent has put up structures in the subject land in dispute. At paragraph 10 of the Statement on Oath of Mudiaga Ifeta, he avers as follows:
“(10) In the course of investigation, I discovered that the Defendant, Mr. Yahaya Isa Mohammed, who was formally the chairman of the Kuje Area Council had erected the buildings on the land. I made efforts to get in contact with him but he refused to meet with me or any of my colleagues. I even made efforts to call him on many occasions, but he never answered nor returned any calls.”
(See page 9 of the Record of Appeal)

The Respondent on the other hand deposed at paragraph 12 of his Witness Statement on Oath thus:
“(12) That I have been in possession of the land for more than 5 years and nobody has approached me in respect of the ownership of the land not until 2012 when the plaintiff reported me to the police and after police investigation I was told to go except for this present case.”

Now, both the Appellant and the Respondent are claiming to be in possession of the property, subject of dispute. I have closely and passionately perused the evidence adduced by both parties before the lower Court. At page 192 of the Record of Appeal, the lower Court held as follows:
“Both the Plaintiff and the Defendant claimed to have derived their titles from the non-existing Uhuru & Associates. I find this case to be intriguing as it is a case of “cunning man die, cunning man bury him”. In the case of GODWIN EGWU V. DURO OGUNKEHIN SC/529/96 DECIDED ON 28TH February, 1969, the Supreme Court held:
“If it be alleged that someone in possession of land is a trespasser, the person so alleging has the onus of showing that he has a better right to possession which was disturbed and unless that onus is discharged, the person alleging cannot defeat the rival party. The Defendant is said to be in actual possession of the land. He has built structures on it. The Plaintiff has not been able to prove that he has a better title or better right to possession. His entire claim must fail and it is accordingly dismissed.”
By the pleadings and evidence adduced before the lower Court, the finding of the learned trial Judge was correct and that is the position of the law. It is established by evidence and there is no contrary deposition that the Respondent has built structures on the land and he had been in quiet possession for a period of five years until in 2012 when the Appellant reported him to the police: The finding of the lower Court is not perverse and it was a finding based on the pleadings before it. This Court cannot therefore interfere with the findings at pages 187-192 of the Record of Appeal, as the findings are proper in law.

Thus, the two issues submitted by the Appellant for determination are hereby resolved in favour of the Respondent and against the Appellant. This appeal lacks merit and it is hereby dismissed.

Accordingly, the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/944/2014 delivered on the 29th day of March, 2017 by A. S. ADEPOJU, J. is hereby affirmed.
I make no order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Danlami Zama Senchi, JCA gave me the privilege of reading in advance, the judgment just delivered.

Upon a careful reading of the record of appeal, and the submissions of counsel in this appeal, I am in total agreement with my learned brother that this appeal lacks merit. The Appellant was unable to establish that he has a better title to the land in dispute than the Respondent. To that extent the trial Court rightly refused to declare title in his favour. This appeal, which is lacking in merit, is hereby dismissed.

I abide by the consequential order(s) made by my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had read in advance, the lead judgment just delivered by my learned brother, Danlami Zama Senchi, JCA.

I am in complete agreement with the reasoning and conclusion contained therein.

I therefore also find the appeal lacking in merit and it is hereby dismissed. I affirm the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/944/2014 delivered on the 29th day of March, 2017 by A. S. Adepoju, J.