ENGR. YAHAYA MAFINDI v. ABBAS UMARU SALEH
(2012)LCN/5500(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2012
CA/YL/34/2011
RATIO
LAND LAW: EFFECT OF PARTITIONING OF FAMILY LAND
Once a family land has been partitioned and shared out among the family members, the concept of family community ownership of the land becomes determined and ownership devolves to individual members who are free to sell or give out their respective portions without the consent of the family head. (Refer:- Oyedo V. Olusesi (2005) 16 NWLR Pt. 951 Pg. 341). PER M. B DONGBAN-MENSEM J.C.A.
EVIDENCE: PRIMARY FUNCTION OF THE TRIAL COURT
It is the traditional approach of this Court, affirmed by a long line of cases, that the findings of a trial Court on oral evidence are treated with reference. The reason is that it is the trial Court alone which has the primary function of fully perceiving both with the physical ear and the judicial vision, the evidence placed before it. The said Court is alone capable of ascribing probative value to such evidence by putting same on the imaginary scale of justice to determine the direction the scale tilts. As the scale tilts, the trial Judge can almost say, I saw it coming! The unspoken word are so obvious when the oral evidence flow out readily until punctuated by some unexpected question, the trial Judge captures the full picture, makes the necessary findings of facts and applies the relevant law to the established facts which give birth to the conclusion and pronouncement. Now, laws could be mis-applied but facts are hard, stubborn and are difficult to be embellished. Upon a proper evaluation of evidence by the trial Court in which material findings are supported by evidence on record, this Court has no business interfering with such a decision. (See Woluchem V. Gudi (1987) 5 S.C. 291, Magaji V. Cadbury (Nig) Ltd (1985) 2 NWLR (Pt.7) 393, Chukwu V. Nneji (1990) 6 NWLR (Pt. 156) P. 363, Adeleke V. Iyanda (2004) FWLR Pt. 60 Pg. 1580 and Olatunde V. Abiodogun (2001) 18 NWLR (Pt.725 P.592). PER M. B DONGBAN-MENSEM J.C.A.
LAND LAW: CONSEQUENCE OF ALIENATING A RIGHT OF OCCUPANCY WITH THE ABSENCE OF THE GOVERNOR’S CONSENT
The apex Court set out the consequence of the absence of the Governor’s consent in the Calabar Central Cooperative & 2 Ors. Vs. Bassey Ebong Ekpo (2008) ALL FWLR (Pt. 418) Pg. 198 at 206), in these terms:-
“The consequence of the unlawful act of alienating a right of occupancy without the requisite consent of the Governor is what is stated under section 26, also supra, it makes the transaction, such as exhibit “A” expressly null and void. Section 26, in declaring such an act null and void, used the word ‘shall’ which, in the instant case, makes the provision mandatory, not directory or discretionary. Learned Counsel for the Appellant wants the Court to hold that section 26 of the Act does not say that the alienation is void for all purposes but I do not see how that interpretation con be achieved. The provision, as earlier stated, is clear and unambiguous and therefore calls for no interpretation, it says that on alienation made contrary to the provisions of the Act ‘shall be null and void’ which to my mind means ‘null and void’ for all purposes under the sun; if it were not so, the law would expressly or by necessary implication have stated so.
I therefore have no option than to come to the conclusion that the lower Courts were right in coming to the conclusion that exhibit “A” is void for non-compliance with the provisions of section 22 of the Land Use Act, 1978.
By the provisions of section 22(1) and 26 of the Land Use Act, 1978, it shall be unlawful for a holder of a right of occupancy to alienate same or any port thereof by assignment, mortgagee, transfer of possession, sublease or otherwise without the consent of the Governor first hand and obtained. The provision is mandatory and makes the obtaining of the Governor’s consent a precondition for the validity of any alienation of a right of occupancy under the Land Use Act, 1978. Though there is no time limit to the obtaining of the said consent by the provision, it is very clear that before the alienation can be valid or be said to confer the desired right on the party intended to benefit therefrom, the consent of the Governor or the State concerned must be first had and obtained. In the instant case, the mortgage agreement entered into by the parties was made without obtaining Governor’s consent as required nor made subject to its being obtained and was therefore invalid and was rightly declared so by the Courts.” PER M. B DONGBAN-MENSEM J.C.A.
DAMAGES: PRINCIPLES GUIDING THE AWARD OF GENERAL DAMAGES
The award of damages, especially of general damages, is an exercise of discretion which lies with the learned Judge to exercise it judicially and judiciously as with all discretion (See Kolum etc (Pg. 28 pera. 4 – 70) this Court would therefore seldom interfere with such award.
The exception is stated in the case of NEPA v. Inameti (2002) 13 WRN Pg. 108 at 136 where it was held that:-
“The appellant Court ought not to upset the award of damages by a trial Court merely because if it had tried the matter it would have awarded a lesser amount: See Flint V. Lovel (1953) 1 K.B. 354, 360; James V. Mid Motors (Nig) Ltd (1978) 11 – 12 SC 13; Eboh V. Akpotu (1968) 1 ALL NLR 220; Zik’s Press Ltd V. Ikoku (1951) 13 WACA 188 at 189; Williams V. Daily Times (1990) 1 NWLR (Pt. 124) 1. In the instant case, the Court below gave no reason whatsoever for awarding the sum of N200,000.00 to the Respondent. In the case of Olurotimi V. Ige (supra) the Supreme Court held that it is not enough for the Court to simply award damages in an action for trespass (and I think this applies to the action for libel) without giving any reason as to how it arrived at what amounted to reasonable damages; Umunna V. Okwuraiwe (1978) 6 – 7 SC 1.” PER M. B DONGBAN-MENSEM J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
ENGR. YAHAYA MAFINDI Appellant(s)
AND
ABBAS UMARU SALEH Respondent(s)
M. B DONGBAN-MENSEM J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Taraba State High Court of Justice delivered on the 25th November, 2010 and presided over by Hon. Justice Ali I. Andenyangtso (Judge) wherein the Court sitting as a Court of first instance declared title to the land in dispute in favour of the Respondent.
The Appellant before the trial Court was the Defendant while the Respondent was the Plaintiff. The Respondent by a Writ of Summons dated 31st day of January, 2006 issued a Writ against the Appellant for declaration of title to a piece of land lying and situate at No.40 Hammaruwa Way, Jalingo, Taraba State.
The Writ of Summons issued for the commencement of Suit No. TRSJ/4/2006 was initially issued by Alh. Umaru Saleh as the Plaintiff who later died in the course of the action before the lower Court. By a motion dated 12th March, 2008 (the motion is contained at pages 78 – 82 of the records for this appeal. The Respondent being the son, substituted the late Alh, Umaru Saleh.
At the conclusion of evidence and addresses of learned Counsel the learned trial Judge found and held that the Respondent proved his case and was entitled to the declaration of title, injunction and award of general damages as claimed.
The Appellant, dissatisfied with the Judgment of the trial Court has appealed to this Court. The Appellant’s Notice of Appeal dated 14th January, 2011 was filed on the 18th January, 2011.
APPELLANT’S BRIEF
Counsel on behalf of the Appellant formulated 6 issues for determination from the 8 grounds of appeal. These are:-
1. Whether Exhibit “US1”, “US2” and “US3” relied upon by the learned trial Judge as evidence of transfer of interest in land are capable of transferring interest in land when in fact they are registerable instrument which were not registered? (Distilled from Ground 1 of the Appellant’s Ground of Appeal).
2. Whether a purchaser of land who did not obtain Governor’s consent to the alienation of interest in land in his favour can sue for and be entitled to a declaration of title to land without the prior consent of the Governor of the state being first sought for and obtained? (Distilled from Ground 2 of the Appellant’s Ground of Appeal).
3. Whether the finding of the learned trial Judge that there was evidence before him that Sulai Muri family land was partitioned amongst the Sulai brothers in 1995 was supported by the evidence on record of the Lower Court as adduced by the parties? (Distilled from Ground 3 of the Appellant’s Grounds of Appeal).
4. Whether the finding of the learned trial Judge that the Appellant on discovering the plot lying behind the plot of the Respondent decided to take the portion of the land left in front of the Respondent’s foundation a storey building and build stores thereon is supported by evidence adduced at the trial? (Distilled from Ground 4 of the Appellant’s Ground of Appeal.
5. Whether the learned trial Judge decided rightly when he declared title and an injunction in favour of the Respondent and against the Appellant over the piece of land measuring 100ft x 100ft? (Distilled from Ground 5, 6 and 8 of the Appellant’s Grounds of Appeal).
6. Whether the award of a General damages of a sum of Five Hundred Thousand (N500,000.00) only by the learned trial Judge against the Appellant, in favour of the Respondent is not excessive, extravagant and manifestly unwarranted? (Distilled from Ground 7 of the Appellant’s Grounds of Appeal).
The Respondent adopts the issues formulated by the Appellant.
ISSUE 1
The learned Counsel to the Appellant submits that the trial Judge declared title in favour of the Respondent by virtue of Exhibit “US1”, “US2”, & “US3”. (See page 177 lines 6-20) of the records for this appeal and that the same exhibits were pleaded in paragraph 4 and 5 of the Respondent statement of claim as contained at page 85-86 of the record of the lower Court. He went further to draw the attention of this Court to page 39-51 and page 40 lines 15-16 of the record where late Umaru Saleh testified as PW2 and pleaded the payment of purchase price and how Idepefo (Counsel to the Appellant) objected to the admissibility of “US1” on ground that it is a registrable document which was not registered contrary to the provisions of Section 2 & 15 of the Land Registration Law of Taraba State. In overruling the objection on the admissibility of Exhibit “US1” at page 47 lines 5 – 10 of the records, the learned trial Judge held thus:-
“The position taken by the defence counsel is correct in law where the document is being tendered as evidence of transfer of title of land. But where, as in this case, it is being tendered in proof of consideration been passed between the parties as pleaded in paragraph 4 of the amended statement of claim it is admissible as evidence of consideration which indicates purchase price and no more.
Based on this I overruled the objection of the learned defence Counsel and admit the document into evidence. It is admitted and marked as Exhibit “US1”.
The learned Counsel complaints that document admitted to be used for one purpose was used for another. That trial Judge promoted Exhibit US1, US2 & US3 which was pleaded and admitted as evidence of payment of purchase price to document capable of transferring interest in land, laments the learned Counsel.
The Appellant submits that documents can be pleaded as evidence of payment of purchase price as between vendor and a purchaser where purchase price is in issue, or purchaser sues for specific performance against this vendor or purchaser in possession tenders payment receipt in prove of equitable interest. Counsel relied on the following cases, Ogunleye vs. Safejo (2010) ALL FWLR (Pt.523) pg. 1889 at 1893, Igbum vs. Nyarinya (2001) FWLR (Pt.67) Pg. 950, Akintola vs. Solano (1986) 2 NWLR (Pt. 24) Pg. 589, Ojugbele vs. Olasoji (1986) 4 S.C 31, Adeniji vs. Onagoruwa (2000) 1 NWLR (Pt. 639) Pg.1.
In defining an instrument and sanction of registrable but unregistered instrument, the learned Counsel to the Appellant cites S. 2 and 15 of the Land Instrument Registration Law of Taraba State and the following cases; Ogunameh vs. Adebayo (2009) ALL FWLR (Pt.467) Pg. 188 at 190, Debo vs. Abdullahi (2005) 29 WRN Pg. 1 at 36-37 lines 20-24, Adesanya vs. Aderoumu (2000) 13 WRN Pg. 104.
Counsel finally submits that the trial Court relied on an inadmissible evidence to find for the Respondent.
In response to the first issue, the learned Counsel for the Respondent submits that it is not in dispute that both parties at the trial Court bought the land in dispute from the same vendor, Haram Sulai Muri. While the Respondent pleaded the purchase document as seen at pages 85-86 of the record, the Appellant who claimed to have purchased land in 1999 tendered no evidence.
It is further contended that where a purchaser of land is in possession or the land by virtue of a registrable instrument which has not been registered and has paid the purchase money to the vendor in either case the purchaser has equitable interest in the land which is as good as legal estate and this equitable interest can only be defeated by a purchaser of land for value without notice of the prior equity.
The Respondent has been able to establish before the trial Court that he bought the land vide Exhibit “US1”, “US2” and “US3” and has been in possession by lying a foundation of storey building on it. Refers to evidence of PW1 at page 36 lines 7, 8 and 9 of the records of the trial Court evidence of PW2 at page 45 lines 21 – 24 of the record.
The respondent having taken possession of the land vide his unregistered registrable instrument acquires an equitable interest on the land which is as good as legal estate and the trial Judge was right to have relied on the documents to enter Judgment for the respondent in this case, says the learned Counsel.
Finally, submits that where two parties claim title to the land from same grantor, the doctrine of priorities pursuant to a well recognized mazim, qui prior est tempore portier est jure (meaning he who is first in time has the strongest right), dictates that the first in time takes priority. In the instant case, the doctrine of priority or competing interest is applicable since the respondent was the first to acquire equitable interest over the land in dispute. (See the case of Eleran Vs Aderonpe (2008) NWLR (Pt. 1097).
ISSUE 2.
The learned Counsel to the Appellant stirs up the honest’s nest when he alleged that the Governor’s consent was not obtained when Prof. Sa’ad Abubakar bought the land nor was the land registered as prescribed by law as can be seen at page 49 lines 10 -11 of the record of the trial Court. On the argument and response (See pages 131 – 136 and page 178 lines 125 – 179 of the record for this appeal).
The Counsel also submits that it is lawful to alienate and later obtain Governor’s consent. Cited the case of Awojugbade Light Ind. Ltd vs. Chinukwe (2004) ALL FWLR (Pt. 229) 943 at 951 – 952. He went further to draw a distinction that in Awojugbade Light Ind. Ltd vs. Chinukwe (supra) Governor’s consent was obtain before the case was filed, while in this present case is not the same and that the Respondent is in violation of Section 22, 26 and 34 of the Land Use Act, 1978 and is not entitle to declaration of title to land by a Court.
It is equally the submission of Counsel that a purchaser of land acquires no legal interest in land until the Governor’s consent is sought and obtained (Refers: Calabar Cooperative & 2 Ors. Vs. Bassey Ebong Ekpo (2008) ALL FWLR (Pt. 418) Pg. 198 at 206). That the trial Court erred in law when it held that the Respondent could acquire interest in land and later obtain the Governor’s consent after he had sued for declaration of title to the land which the Court acceded to.
The learned Counsel for the Respondent submits that the Appellant misconceived the provision of Section 22 of the Land Use Act 1978, which place the burden of obtaining the Governor’s consent on the holder of statutory right of occupancy and not on a purchaser. Section 22 of the Land Use Act 1978, and the case of Owoniboy’s Tech. Services v. U.B.N. (2003) FWLR (Pt. 180) 1529 at 1534, are cited in support of his argument.
Counsel also cited the case of ABU Zaria v. Molukwe (2004) ALL FWLR (Pt. 238) page 664 at 666 to buttress his argument that the Appellant raised the issue of Governor’s consent and failed to call evidence and is therefore deemed to have abandoned same.
Counsel posits that the trial Judge decided rightly at page 178 – 179 of the record when it held thus:-
“I have considered the point raised by the Defendant Counsel on issue of Governor’s consent but I hold the firm view that this cannot hold water because even the transaction bestowing title to the land claimed to have been purchased by the defendant did not get the consent of the Governor’s”.
Counsel also maintains that he who comes to equity must come with clean hands. Appellant cannot be in breach of a law and is holding the Respondent responsible for the same breach! Assuming without conceding, argues the learned Counsel, that the burden of obtaining Governor’s consent is on the purchaser by the combined effect of S.22, 26 and 34 of Land Use Act 1978, the Appellant has also not obtained Governor’s consent, or registered his interest and can only defeat the Respondent who has equitable interest on the property by a purchase for value without prior notice.
ISSUE 3
The learned Counsel to the Appellant submits that the determination of whether or not a family land is partitioned is matter of proof. He who alleges must proof by pleadings and tendering evidence, deed of partition or proof by credible evidence to the following facts:-
i. The extent of the land partitioned.
ii. The people who were present during the partition.
iii. The extent of the land allocated to each beneficiary.
Counsel relied on the case of Obiazikwor vs. Obiazikwor (2007) 37 WRN page 106 at 113.
Counsel further submits that there is no record to the fact that Ahmadu Sulai and Yakubu Sulai sold any piece of the family land on the record of proceedings. Ahmadu Sulai Muri and Yakubu Sulai Muri both occupied portions of the family land which is an elementary principle of family ownership of land but the ownership still resides with the family and no alienation can be done without the family head . (See Olorunfemi vs. Asho (2007) 74 LRCN Pg.45 at 48. In conclusion the Appellant’s Counsel urge this Court to hold that the alleged sale between Haram Sulai Muri and Prof. Sa’ad Abubakar as void ab initio as the consent of the head of the family was not sought nor obtained before the transaction. (Refers: the following cases, Awure vs. Illedu (2007) vol. 52 WRN Pg. 27 at 40, Alhaji Adeke vs. Lyanda (2001) 28 WRN Pg. 1, Sunday Temile vs. Jemide Ebigbeyi Awani (2001) 30 WRN Pg. 1).
And that if the Court so hold he will rely on the case of Folami vs. Cole (1990) 2 NWLR (Pt. 233) Pg. 445 at 447.
The learned Counsel for the Respondent submits that the Respondents statement of claim at pages 86-89 and 59-60 of the record had averred and led evidence via PW4 to the fact that Sulai Muri land was partitioned among the children and the land in dispute was the land allocated to Haram Sulai Muri while the Appellant in his further amended statement of defence at page 72 of the record denied the averment without tendering any evidence and claimed the family in 1995 had a Court case but failed to tender proceedings for the Court to assess if the proceedings is in regard to the land in dispute.
Counsel also submits that by S.128(1) of Evidence Act, 2011 Cap E14, Oral Evidence in respect of documentary issue is not allowed.
Counsel also submits that PW4 was not Sulaiman Umaru but Adamu Sulaiman Muri and also refers this Court to pages 52 – 53 lines 26, 27, 1, 2 & 3, page 86 of the records.
Counsel submits that at the time of sale of the land PW4 Adamu Sulai Muri who is a family member of Haram Sulai Muri was present while DW1 Mohammadu Sulai Muri who claimed to be the family head was not present in all the transactions that led to this case.
Under cross examination at pages 94-95 of the record of trial Court, DW1 answers show clearly that the land was partitioned and did not testify to the fact that Yakubu and Ahmadu are occupying a family land but said their land shared boundary with the land in dispute and if they have sold their land he will not know later somersaulted in to saying Ahmadu cannot sale his land without his consent. The case of Olorunfemi vs. Asho (supra) is not relevant to the present circumstance, argues the learned Counsel.
Counsel maintains that DW1 claimed to be the family head without proof of appointment, nomination or by operation of law as provided by law. (See Ejilemele V. Opara (2003) FWLR (Pt. 167) page 821 at 823).
This issue of whether the land is a family land or not is not in dispute as the Appellant did not challenge the Judgment on that fact he is deemed to have accepted that part of the Judgment of the lower Court (refers:- Obiora vs. COP (1999) 7 NWLR Pt. 161 page 222 at 233).
ISSUE 4
The case of the Appellant is that there is no dispute as to whether the Appellant or Respondent has a building on the disputed land but the disputes relates to who built first and looking at paragraph 10 of the statement of claim now page 87 of the record of the lower Court, paragraph 14 – 15 of the statement of defence at pages 73 – 74 of the record, PW2 testimony at page 49 line 8, PW4 page 60 lines 8 – 15, DW2 at page 115 lines 1 – 19 all of the record to the fact that the Appellant build his house before the Respondent because when the Respondent was processing his papers as at March, 2000 the Appellant had began building work.
Counsel also refers this Court to pages 108 – 121 of the record of the lower Court in regards to the visit to the locus in quo to the fact that it was not written anywhere that the Respondent laid foundation before the Appellant and that the Judge erred by substituting his personal view for evidence. (Refers: – Baba Iyali vs. Sikeli (2006) 3 NWLR (Pt. 968) Pg. 508, Ogunmameh vs. Adedayo (2009) All FWLR (Pt. 467) Pg. 188 at 193).
Respondent’s learned Counsel maintains that the evidence of PW1, PW2 and PW3 shows that the Respondent laid foundation of his storey building first on the land in dispute and that the land conceded to Prof. Sa’ad Abubakar which late Alh. Haram Sulai Muri later sold to the Appellant was not challenged and the trial Court was right to have relied on same to find for the Respondent as against his adversary.
Counsel also submits that the trial Judge never substituted his view with evidence but used what he has before him from witnesses, evidence confirmation by the visit to the locus.
On the fact that the Appellant did not commence work on the land in 2000, he refers this Court to page 115 line 3 state thus; “Around 2000 I started construction on the land” it will be erroneous to state that the Appellant started construction on the land before the Respondent.
Visit to the locus in quo is contained at pages 108 – 121 of the record, then page 179 lines 22 – 25 of the Judgment of the trial Court which made reference to the visit thus:-
“On visit to the locus it was confirmed that there was an old foundation for a building of a storey building while the stores of the defendant were constructed in front of the foundation, obstructing it from view”.
ISSUE 5.
The Counsel for the Appellant submits that at page 90 of the record, the Respondent claims land covering 100ft x 100ft while at page 8 admitted to have commenced development of 50ft x 100ft. he is left with 50ft x 100ft but the Judge declared title to the Respondent over an area of 100ft x 100ft.
Counsel further submits that evidence of PW3 and PW4 shows that at the time Prof. Sa’ad Abubakar sold the land to the Respondent he had not yet paid the purchase price and payment of consideration is an essential ingredient in any sale of land and that at the time he sold the land he had only equitable interest (Refers:- Odusola vs. Rickett (1997) 53 LRCN Pg. 2376 at 2380, Inyang vs. Eshiet (1990) 5 NWLR (Pt. 149) Pg. 178 at 180).
Counsel also submits that from the Exhibits US1, US2 & US3 and the visit to the focus contained at pages 118 – 121 of the record, no land was defined but rather uncertainty and the only link the Appellant has with the Respondent was through the evidence of PW4 when during the visit to the locus in quo said the Appellant building falls into the land sold to the Respondent.
Counsel urges this Court to strike out the entire submissions on this issue because it is at variance with the Grounds of Appeal raised in respect of this issue. But if the Court holds otherwise, he submits that the trial Court was right in declaring title of land measuring 100ft x 100ft to the Respondent and an injunction restraining the Appellant from further acts of trespass. (See the case of Akinduro vs. Alaya (2007) 6 CMLR page 180).
Counsel also submits that the contention that the purchase price has not been fully paid is the opinion of the learned Counsel to the Appellant and not based on evidence given at the trial.
ISSUE 6
On this issue of the award of damages, the learned Counsel for the Appellant submits that the learned trial Judge was excessive, unwarranted and extravagant to have awarded general damages of N500,000.00 which is more than what he paid for the Writ of Summons and more than the money for the entire land that is just 170,000.00 without assessment of the quantum of damages occasioned by the trespass.
He further submits that award of damages is regulated by laid down judicial precedents. (Refers:- Kotun vs. Olasewere (2009) ALL FWLR (Pt. 477) Pg. 41 at 47, Momodu vs. University of Benin (1997) 7 NWLR (Pt. 512) Pg. 325 and Nepa vs. Inameti (2002) 13 WRN Pg. 108 at 136 lines 25 – 35).
For the Respondent, the learn Counsel posits that the claim in the statement of claim supersedes that in the Writ of Summons and that the claim of general damages is not tied to what a party has paid in his Writ of Summons.
On the definition of general damages, Counsel cites the case of Adekunle v. Rockview Hotel Ltd. (2004) FWLR (PT.188) PAGE 1037 at 1040 as “Genre of DAMAGES”.
Counsel also submits that the grant of general damages by the trial Court is discretionary and can hardly be set aside or interfered by an Appellate Court except if the Court is convinced that:
a. The Court upon some wrong principle of law or under a mistake of law.
b. The award is arbitrary or perverse.
c. There has been an element of wrong exercise of discretion in the award.
d. Injustice would result if the Appeal Court does not interfered.
e. The amount awarded is either ridiculously high or low that it must have been erroneous estimate of damages. (See the cases of Asesa vs. Ekwenen (2009) ALL FWLR (Pt.491) page 837 at 844 – 847, Adekunle vs. Rockview Hotel Ltd (supra) at page 1040 – 1041).
Counsel further submits that the Appellant claims the money awarded by the trial Court was excessive but failed to show the Court how it was excessive or extravagant.
Counsel submits that the trial Court instead of awarding N5,000,000.00 for general damages as claimed, awarded only N500,000.00 and cannot be said to be speculative.
SUMMARY OF THE TRIAL COURT’S JUDGMENT
The learned trial Judge in giving its Judgment found that both the Plaintiff and the Defendant now Respondent and Appellant land shall be so referred to in this Judgment, traced their roots of title to late Sulai Muri, where the Respondent claimed to have purchased the land in dispute from professor Sa’ad Abubakar, who in turn purchased from Haram Sulai Muri and tendered Exhibit “US2 and US3” respectively on how he bought the said land which is one of the ways of proving title according to the law through decided cases. The trial Judge cited Idundun V. Okumagba Vol. 7 Land Law Appeal Cases (1 LLAC) 177 at 178, Kyari V. Alkali (2001) 31 WRN 88 at 95.
The Appellant on the other hand claims to have purchased the land from Sulai Muri family in 1999.
The trial Judge further cited the case of Fage V. Adakawa (2006) 46 WRN 162 at 168 on the position of law that in action for declaration of title to land the Plaintiff succeeds or fails on the strength of his own case and not on the weakness of the defense, except where the defence supports the case of the Plaintiff.
The Respondent relied on purchase as his means of acquiring title as per paragraph 4-7 of his amended statement of claim as also the Appellant at paragraph 14 – 15 of the amended statement of defence.
The learned trial Judge accepted the lone issue as formulated by the Plaintiff and also adopted by the Defendant as convenient for the disposal of the case.
The issue raised is:-
“Whether the Plaintiff has proved his case to entitle him to the declaration of title and injunction sought by him”.
The Respondent called evidence to show how he came to own the land in dispute through PW4, a brother to late Haram Sulai Muri who stated in evidence that the land was partitioned in 1995 among the children of Sulai Muri family and Haram Muri sold his part to Prof. Sa’ad Abubakar in 1996 who in turn sold it to the Respondent.
DW1 the eldest son to late Sulai Muri said the family land was never partitioned but on cross examination, DW1 stated that Ahmadu Sulai Muri shares a boundary with the disputed land from the north but he does not know who he sold it to, while Yakubu Sulai Muri from the south both are children of late Sulai Muri. (It would appear then that the land had indeed been partitioned)!
On Governor’s consent, the trial Judge held a firm view that the issue of the Governor’s consent raised by the Appellant does not hold water because the Appellant himself did not obtain Governor’s consent and that it is lawful for a Plaintiff to alienate his land or acquire title to land then obtain Governor’s consent. He cited the case of Awojugbade Light Ind. Ltd Vs. Chinukwe (2004) ALL FWLR (Pt. 229) 943 at 951 -952.
The trial Judge accepted the evidence of PW3 & PW4 as to the truth of the transaction between Haram Sulai Muri and Prof. Sa’ad Abubakar and also between Prof. Sa’ad and the Plaintiff now Respondent and to the fact that the land was shared among the Sulai brothers in 1995 in which some even sold theirs e.g Ahmadu Sulai, Yakubu Muri.
There was a visit to the locus in quo where the trial Judge found that there is a foundation of a storey building belonging to the Respondent and also stores of the Appellant constructed in front of the foundation obstructing it from view.
After a consideration of evidence and exhibits available, the learned trial Judge entered Judgment for the Respondent against the Appellant holding that the Respondent had been able to proof title of a land measuring 100ft x 100ft where he built the foundation of a storey building on 100ft x 50ft leaving 100ft x 50ft which the Appellant built upon.
The learned Judge granted the relief in (a), (b) and (e) as contained in paragraph 29 of the amended statement of claim. In respect of (d) he award N500,000.00 as general damages for trespass against the defendant in favour of the Plaintiff.
The decision of the learned trial Judge gave rise to eight grounds of appeal from which six issues were formulated.
The six issues formulated by the Appellant and adopted by the Respondent shall be considered on three plangs as follows:-
Issues 1, 2 & 5 shall be taken together for they address the question of Governor’s consent, the status of unregistered registrable instruments all touching on the jurisdiction of the trial Court.
lssues 3 & 4 are taken together for they both deal with the evaluation of evidence before the trial Court. While
Issue 6 is a complaint against the award of damages. I will however start with issues 3 and 4, then issues 1, 2, & 5 and issue 6.
Issue 3 and 4
The two issues assail the findings of the learned trial Judge as to the partitioning of the Sulai Muri family land among the brothers. And the presence of the Appellant and Respondent on the land in dispute as found by the learned trial Judge upon a visit to the locus in quo is raised under issue 4 that family land had been partitioned paragraphs 3, 4 & 7.
The Respondent had in paragraph 9 of his statement of claim raised the issue of the partition of the family land of the Sulai Muri family, part of which was sold to him as demonstrated by the evidence of his witnesses PW2, PW3 and PW4.
In response, the Appellant raised the issue of the consent of the head of the family (See paragraphs 3, 4, and 7 of Appellant’s statement of defence at page 71 – 72 of the records for this appeal.
The Appellant relies on the evidence of DW1 who claims to be the oldest son of the Sulai Muri family and family land could not have been sold without his knowledge. Upon the authority of Obiozikwor V. Obiazikwor (2007) 37 WRN Pg.106 at 113 and a host of other cases cited by the learned Counsel for the Appellant.
Counsel submits that the determination as to whether or not a family land has been partitioned is a matter of proof. The party alleging partition must ordinarily plead and tender in evidence the Deed of Partition. However, where Deed of Partition is not available the party alleging partition must plead and prove by credible evidence the following facts;
a. The extent of the land partitioned.
b. The people who were present during the partition.
c. The extent of the land allocated to each beneficiary.
Counsel urges the Court to hold that the alleged sale between the Haram Sulei Muri and Professor Sa’ad Abubakr is void ab initio as the consent of the DW1 who is the head of the family was not sought for and obtained before the alleged transaction between them. (Refers:- Awure vs. Iledu (2007) vol.52 WRN pg.27 at 40, Alhaji Adeke v. Lyanda (2001) 28 WRN Pg 1, Sunday Temile Vs. Jemide Ebigbeyi Awani (2001) 30 WRN Pg.1).
In rebutting the case of the Appellant, the Respondent relies on the evidence of PW4 a member of the Sulai Muri family who was present and witnessed the sale to the Respondents predecessor in title. The DW2 on the other hand, was not present and who had under cross examination (refer pages 94-95 of records) said:-
“At the time of sale of the land the boundary men were Ahmadu Sulei Muri (his brother) at the North but Ahmadu had sold his portion to somebody who I don’t know. At the East with the land sold to Barde. At the West with tarred rood and at the South with Yakubu Sulai Muri his brother again (if he (Yakubu) had sold the land to somebody I would not know now). I said I would not know whether Yakubu sold his portion to somebody”.
The DW1’s claim to the headship of the Sulai Muri family is also challenged upon the authority of Ejiliemele Vs Opara (2003) FWLR (Pt.167) page 821 at 823).
The finding was supported by the evidence of DW2 who conceded under cross-examination that two members of the Muri family sold off their portions of the land.
It is obvious that the learned trial Judge did not find the witness credit worthy and therefore preferred the evidence of the witnesses to said the family land had been partitioned.
Once a family land has been partitioned and shared out among the family members, the concept of family community ownership of the land becomes determined and ownership devolves to individual members who are free to sell or give out their respective portions without the consent of the family head. (Refer:- Oyedo V. Olusesi (2005) 16 NWLR Pt. 951 Pg. 341).
On whether the family land was partitioned, the learned trial Judge found as follows:-
“The Plaintiff called evidence to show how he came by the land in dispute. One of the witnesses was PW4 who is a brother to late Haram Sulai Muri. He testified to the fact that the Sulai Muri family land was partitioned among the children of Sulai Muri, including late Haram Sulai Muri who sold his portion to Prof. Sa’ad Abubakar who in turn sold some to the Plaintiff.
DW1 is the eldest son of the late Sulsi Muri now alive who testified that the Sulai Muri land was not partitioned among the Sulai Muri children. However there is also evidence from PW4 a brother to DW1 that the land was shared in 1995 before Haram sold his plot to Prof, Sa’ad in 1996, There is evidence from DW1 under cross-examination that Ahmadu Sulai Muri owed his separate land sharing boundary with the land in dispute at the North but Ahmadu Sulai Muri had sold his land to somebody who DW1 did not know. DW1 also under cross-examination told the court that Yakubu Sulaim Muri, one of the Sulai Muri children owed his separate plot at the South of the disputed land and that he DW1 did not know if Yakubu Sulai had sold his land to somebody.”
The learned trial Judge had the privilege of seeing and listening to the witnesses who gave oral evidence before the Court.
The evaluation of such evidence is the primary assignment of the trial Court. This Court does not make a habit of interfering with such findings of the trial Court without the existence of exceptional circumstances. No such circumstances have been placed before us. We must therefore refrain from interfering with the decision. (See. Mini lodge Ltd & 7 Ors. V. Chief Olika Ngei & 1 Or. (2010) ALL FWLR Pt, 506 Pg. 1806 at 1820 – 1821).
On the findings at the locus in quo, the learned trial Judge preferred the testimonies of the Plaintiff’s witnesses to those of the Respondents; these were PW2, PW3 & PW4 who testified to the presence and work of the Plaintiff at the said land, the learned trial Judge did not therefore substitute his views for those of the witnesses.
ISSUE 4.
The bone of contention there is the testimonies of the PW2 deceased, PW4 and DW2 Respondent on issue 4; that the testimonies of PW1 and PW2, the learned trial Judge preferred the testimonies of the PW1, PW2 and PW4 because the Appellant failed to adduce evidence of the suit said to be pending which could have prevented the partitioning of the family land and thereby the sale to the Respondent.
These issues as earlier noted, question the evaluation and adduction of value to the evidence of witnesses who testified before the Court. It is the traditional approach of this Court, affirmed by a long line of cases, that the findings of a trial Court on oral evidence are treated with reference. The reason is that it is the trial Court alone which has the primary function of fully perceiving both with the physical ear and the judicial vision, the evidence placed before it. The said Court is alone capable of ascribing probative value to such evidence by putting same on the imaginary scale of justice to determine the direction the scale tilts. As the scale tilts, the trial Judge can almost say, I saw it coming! The unspoken word are so obvious when the oral evidence flow out readily until punctuated by some unexpected question, the trial Judge captures the full picture, makes the necessary findings of facts and applies the relevant law to the established facts which give birth to the conclusion and pronouncement. Now, laws could be mis-applied but facts are hard, stubborn and are difficult to be embellished. Upon a proper evaluation of evidence by the trial Court in which material findings are supported by evidence on record, this Court has no business interfering with such a decision. (See Woluchem V. Gudi (1987) 5 S.C. 291, Magaji V. Cadbury (Nig) Ltd (1985) 2 NWLR (Pt.7) 393, Chukwu V. Nneji (1990) 6 NWLR (Pt. 156) P. 363, Adeleke V. Iyanda (2004) FWLR Pt. 60 Pg. 1580 and Olatunde V. Abiodogun (2001) 18 NWLR (Pt.725 P.592).
I find no good reason to interfere with the decision of the learned trial Judge.
Issues 3 & 4 are therefore resolved against the Appellant.
Issue 1, 2 and 5.
Issue 1
Exhibits US1, US2, US3.
Upon the objection, the learned Counsel for the Appellant as Defendant at the trial, the learned trial Judge rightly ruled that Exhibit US1, US2 and US3 were admissible as evidence only of the payment of purchase price, in this case, of the land in dispute. In other words, the said Exhibit could not be relied upon as instruments transferring interest in land when in fact they are registrable instrument which were not registered.
The Respondent was of a different view, urging the admission of the said document as title documents.
The learned Counsel for the Appellant was however dismayed when the learned trial Judge somersaulted and declared the transaction in issue as transferring legal title in a land which is guided by both national and state statutory mandatory provisions. The land in question, being situate, known and located in an urban in Taraba State.
It is accordingly governed by the Land Use Act of 1978 and section 2 of the law provides that:-
“A document affecting land whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to, or interest in land in the state, and includes a certificate of purchase and a power of attorney under which any instrument may by executed, but does not include a will”.
Section 15 provides the sanction for non compliance in these terms:-
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3”.
These provisions have been tested in judicial pronouncements in a long line of judicial authorities. (See Ogunameh V. Adebayo (2009) ALL FWLR (Pt. 467) Pg. 188 at 190, Debo V. Abdullahi (2005) 29 WRN pg.1 at 36 – 37 lines 20 – 24, Adesanya V. Aderounmu (2000) 13 WRN Pg. 104).
Contrary to the position of the learned Counsel for the Respondent, the doctrine of priority beautifully couched in the latin maxim qui prior est tempore portier est jure, does not rest jurisdiction in the learned trial judge to convert materials admitted as receipt of purchase into legal documents conferring title on the possessor of such receipts. (court, jurisdiction, Whether …………
The learned Counsel for the Respondent wishes, by his submissions that Exhibits SU1, SU2 and SU3 could translate themselves into registered registrable documents, conferring legal estate on the Respondent is without a legal anchor.
As rightly contended by the Appellant’s learned Counsel, the said Exhibits US1, US2, and US3 are relevant only as evidence of payment of purchase price as between the vendor and the purchaser, a situation which does not present itself in the instant appeal. (Refers: Ogunleye v. Safejo (2010) ALL FWLR (Pt.523) Pg. 1889 at 1893, Igbum V. Nyarinya (2001) FWLR (Pt. 67) Pg. 950, Akintola V. Solano (1986) 2 NWLR (Pt. 24) Pg. 589, Ojugbele V. Olasoji (1986) 4 S.C 31, Adeniji V, Onogoruwa (2000) 1 NWLR (Pt. 639) pg 1).
ISSUE 2
By the state of their pleadings, the Appellant denied and challenged particularly, the transactions averred in paragraphs 6-12 of the Respondent’s further amended statement of claim. The reason is that the said transaction is a nullity as the Plaintiff never sought for and nor obtained the consent of the Governor of Taraba State to effect the said transaction.
That the consent of the Governor was not obtained is not denied. In his evidence, PW2, the original Plaintiff at trial, stated categorically under cross examination that:-
“I did not obtain Governor’s consent when I bought the land from Prof. Sa’ad Abubakar.
I did not register my interest in the land when I bought the land from Prof. Abubakar”.
There was therefore no need to proof the existence of the Governor’s consent. What is the effect of the absence of the Governor’s consent? It was the “firm view” of the learned trial Judge that issues of the Governor’s consent was of no moment and the reason is that:-
“….even the transaction bestowing title to the land claimed to have been purchased by the defendant and did not get the consent of the governor. It is lawful for a Plaintiff to alienate his land or acquire title to land and then obtain the Governor’s consent. (See Awojugbage Light Ind. Vs. Chinukwe (2004) ALL FWLR (Pt. 229) 943 at 951 – 952).
The question to resolve this issue is as posed by the Appellant’s learned Counsel; can a purchaser of land who in violation of the provisions of sections 22, 26 and 34 of the Land Use Act 1978 be entitled to the declaration of title to the land by a Court?
The Appellant Counsel answered this question in the negative and cites the case of Calabar Central Cooperative & 2 Ors Vs. Bassey Ebong Ekpo (2008) ALL FWLR (Pt.418) Pg. 198 at 206), as the authority on the issue. The learned Counsel also distinguished the facts of Awojugbode Light and the instant case. In Awojugbade case, the transaction was ratified by the Governor’s consent before the commencement of the suit in Court. In this appeal, the Governor’s consent is still non-existant.
Rather than address the substance, the learned Counsel for the Respondent went for the shaft which was blown away from his hand by the strong wind of the mandatory provisions of section 22, 26 and 34 of the Land Use Act of 1978.
Section 22 of the Land use Act provides that:
“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage transfer of possession, sub-lease or otherwise howsoever without the consent of the Governor first had and obtained”.
Section 34(7) of the Act provides as follows:-
“No land to which subsection (5) (a) or (6) of this section applied held by any person shall be further subdivided or laid out in plots and no such land shall be transferred to any person except with the prior consent in writing of the Governor”.
By these provisions, consent of the Governor is imperative for the proper alienation of any piece of land in the designated areas. Accordingly, I agree with the submission of the Appellant’s Counsel that a purchaser of land acquires no legal interest in land until the Governor’s consent is sought and obtained. (See Calabar Central Cooperative & 2 Ors. Vs. Bassey Ebong Ekpo (2008) ALL FWLR (Pt. 418) Pg. 198 at 206).
The apex Court set out the consequence of the absence of the Governor’s consent in the Calabar Central Cooperative & 2 Ors. Vs. Bassey Ebong Ekpo (2008) ALL FWLR (Pt. 418) Pg. 198 at 206), in these terms:-
“The consequence of the unlawful act of alienating a right of occupancy without the requisite consent of the Governor is what is stated under section 26, also supra, it makes the transaction, such as exhibit “A” expressly null and void. Section 26, in declaring such an act null and void, used the word ‘shall’ which, in the instant case, makes the provision mandatory, not directory or discretionary. Learned Counsel for the Appellant wants the Court to hold that section 26 of the Act does not say that the alienation is void for all purposes but I do not see how that interpretation con be achieved. The provision, as earlier stated, is clear and unambiguous and therefore calls for no interpretation, it says that on alienation made contrary to the provisions of the Act ‘shall be null and void’ which to my mind means ‘null and void’ for all purposes under the sun; if it were not so, the law would expressly or by necessary implication have stated so.
I therefore have no option than to come to the conclusion that the lower Courts were right in coming to the conclusion that exhibit “A” is void for non-compliance with the provisions of section 22 of the Land Use Act, 1978.
By the provisions of section 22(1) and 26 of the Land Use Act, 1978, it shall be unlawful for a holder of a right of occupancy to alienate same or any port thereof by assignment, mortgagee, transfer of possession, sublease or otherwise without the consent of the Governor first hand and obtained. The provision is mandatory and makes the obtaining of the Governor’s consent a precondition for the validity of any alienation of a right of occupancy under the Land Use Act, 1978. Though there is no time limit to the obtaining of the said consent by the provision, it is very clear that before the alienation can be valid or be said to confer the desired right on the party intended to benefit therefrom, the consent of the Governor or the State concerned must be first had and obtained. In the instant case, the mortgage agreement entered into by the parties was made without obtaining Governor’s consent as required nor made subject to its being obtained and was therefore invalid and was rightly declared so by the Courts.”
The learned Counsel to the Respondent therefore fell in grave error when he treated the issue of the Governor’s consent as a question of who bears the responsibility to obtain the said consent. The cases of Owoniboy’s Tech. Services Vs. U.B.N. Plc (2003) FWLR (Pt. 180) 1529 at 1534; ABU Zaria Vs. Molukwe (2004) ALL FWLR (Pt. 238) page 664 at 666, do not take away the consequence of the failure to obtain the consent.
The learned trial Judge erred in the appreciation and application of the law when it waved away the condition sine quo non of the Governor’s consent in land transactions in the urban area since the enactment of the Land Use Act of 1978.
Issue 5.
The land which the Respondent claims is well defined as lying and situate at No. 40 Hammaruwa Way Sintali Ward Jalingo measuring 200ft x 1000ft and in the amended statement of claims at page 80 of the printed record claim a declaration of title to a parcel and/or plot of land lying and situated at No. 40 Hammaruwa Way opposite NDE office/Akosu furniture office measuring 100ft x 100ft and bounded as follows:
To the North by land of Alhaji Yero
To the East by land of Alhaji Ibrahim Wakili Tasha
To the West the land is bounded by Hammaruwa Way (road)
To the South by the land of Alh. Sanusi Adamu Lau.
The circumstances under which the Respondent developed part of the land is well explained in the testimony of PW1 (deceased) the original Plaintiff. At the visit at locus in quo, there was no doubt as to the location of the land in dispute. (See para 16 of further amended statement of claim at pg 88 of the records.
Upon the authority of Odusola Vs. Rickett (1997) 53 LRCN Pg. 2376 at 2380, Inyang V. Eshiet (1990) 5 NWLR (Pt. 149) Pg. 178 at 180), the learned Counsel to the Appellant submits that payment of consideration is an essential element of a valid sale of land. The learned Counsel to the Respondent concedes to this. However, the argument that the right acquired by Prof. Sa’ad Abubakar from whom the Respondent acquired the land is an equitable right which leaves the vendor with the legal estate is untenable. In the case of Minilodge Ltd & 1 Or. V. Chief O.O. Ngei, (supra) the Supreme Court per Tabai JSC held that:-
“In a contract for sale of property, where part payment was paid, the law is that the contract for purchase had been concluded and is final, leaving the payment of the balance outstanding to be paid. The contract for the sale and purchase is absolute and complete for which each party can be in breach for non-performance and for which an action can be maintained for specific performance”.
Issue 6 Award of Damages.
The award of damages, especially of general damages, is an exercise of discretion which lies with the learned Judge to exercise it judicially and judiciously as with all discretion (See Kolum etc (Pg. 28 pera. 4 – 70) this Court would therefore seldom interfere with such award.
The exception is stated in the case of NEPA v. Inameti (2002) 13 WRN Pg. 108 at 136 where it was held that:-
“The appellant Court ought not to upset the award of damages by a trial Court merely because if it had tried the matter it would have awarded a lesser amount: See Flint V. Lovel (1953) 1 K.B. 354, 360; James V. Mid Motors (Nig) Ltd (1978) 11 – 12 SC 13; Eboh V. Akpotu (1968) 1 ALL NLR 220; Zik’s Press Ltd V. Ikoku (1951) 13 WACA 188 at 189; Williams V. Daily Times (1990) 1 NWLR (Pt. 124) 1. In the instant case, the Court below gave no reason whatsoever for awarding the sum of N200,000.00 to the Respondent. In the case of Olurotimi V. Ige (supra) the Supreme Court held that it is not enough for the Court to simply award damages in an action for trespass (and I think this applies to the action for libel) without giving any reason as to how it arrived at what amounted to reasonable damages; Umunna V. Okwuraiwe (1978) 6 – 7 SC 1.”
In the circumstance, the Plaintiff who claimed the sum of 5,000,000, was awarded the sum of N500,000. The suit having failed being a nullity the issue of cost is interned with the fracases of the suit.
This appeal succeeds and suit of the Respondent fails and is hereby dismissed. Without the Governor’s consent and being in the possession of unregistered registrable instruments, the Respondent could not proof a valid title to the land in issue.
The learned trial Judge was therefore in error in finding for the Respondent and issuing an injunction in favour of the Respondent. The entire Judgment comes to naught having been arrived at by the wrong application/ non-application of the relevant legislation in the subject matter. The Land Use Act.
Parties shall bear their cost.
CHIMA CENTUS NWEZE, J.C.A.: My Lord, Dongban-Mensem, JCA obliged me with the draft of the leading judgment just delivered now. I am, entirely, in agreement with the reasoning and conclusion of His Lordship. I am constrained to make some comments in this contribution because of the arguments which the appellant canvassed with regard to issue two, that is, the question of the consent of the Governor to transactions such as the land culminating in the appeal before us.
As the leading judgment has pointed out, consent of the Governor is imperative for the valid alienation of any piece of land in the designated areas. This is the implication of the Supreme Court’s return to its posture in Savannah Bank of Nigeria Ltd v Ajilo (1989) 1 NSCC 135 on the effect of non-compliance with the consent requirement of the Act. The cases evidencing the consecration of that approach include: Union Bank of Nigeria Plc v Astra Builders (W/A) Ltd (2010) All FWLR (Pt 518) 865, 885- 886; Union Bank of Nig Ltd v Ayodare and Sons Nig Ltd (2007) 13 NWLR (Pt 1052) 567; Olalomi Industries Ltd v N. I. D. B. (2009) 29 NSCQR 240; International ile (Nig) Ltd v Aderemi and Ors (1996) 8 NWLR (Pt 464) 15, 42; Brosette v. Ilemobola & 3 Ors (2008) 154 LRCN 64-109; Yaro v Arewa Construction & 2 Ors (2008) 154 LRCN 163 – 217; Calabar Central Co-operative & 2 Ors v Ekpo (2008) All FWLR (Pt 418) 198 – 244.
Instructively, in Union Bank of Nigeria Plc v Astra Builders (W/A) Ltd (supra at pages 885-886), the apex court, specifically, quoted, approvingly, from its decision in Savannah Bank of Nigeria Ltd v Ajilo (supra) and International ile (Nig) Ltd v Aderemi and Ors [supra]. It, also, referred to Union Bank of Nig Ltd v Ayodare and Sons Nig Ltd (supra) and Olalomi Industries Ltd v N.I. D. B. (supra).
It is for these reasons, and the more detailed reasons in the leading judgment, that’1, also, conclude that the lower court erred when it waved the impregnable condition of the Governor’s consent. Like the leading judgment, I, too, shall allow this appeal. Appeal allowed. Parties shall bear their costs.
ABUBAKAR ALKALI ABBA, J.C.A.: I have read the lead Judgment of my learned brother Hon. Justice M. B. Dongban-Mensem. I agree that this appeal has merit and I also allow this appeal and set aside the Judgment of the Lower Court.
Appearances
F.K. Idepefo, C.C. Okeke and S.J. WugiraFor Appellant
AND
E.I. Chukwu Esq., A. J. Akanmode Esq. and A. UmarFor Respondent
