MR. SUNNY OBERUMOR ADEDA v. MADAM IDONOR (2013)

MR. SUNNY OBERUMOR ADEDA v. MADAM IDONOR

(2013)LCN/6573(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of December, 2013

CA/B/42/2006

RATIO

WHETHER A COURT HAS THE DISCRETION TO DECLINE THE GRANT OF A DECLARATORY RELIEF

JUSTICES:

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

MR. SUNNY OBERUMOR ADEDA – Appellant(s)

AND

MADAM IDONOR – Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is against the Judgment of the High Court of Delta State which was delivered on November 4, 2005, by the Hon. Justice A.A. Onojovwo. By the said Judgment, the lower court dismissed the Appellant’s case and upheld the Respondent’s counterclaim against the Appellant. Dissatisfied with the decision in question, the Appellant appealed to this court on November 7, 2005 upon a total of eight grounds of appeal.

BACKGROUND FACTS
The genesis of the instant appeal could be aptly traced to January 1, 2001. That was the day the Appellant caused the said Suit (No. UHC/9/2004) to be instituted in the court below, vide a writ of summons and statement of claim. By the endorsement to the writ of summons and paragraph 26 of the statement of claim thereof, the Appellant’s claim against the Respondent is to the following effect:

(i) A declaration of title that Plaintiff is the bona fide and statutory owner of the piece or parcel of land known as Plot 4 in the layout plan of GRA Extension II, Ughelli North Local Government Area of Delta State, measuring approximately 3662. 763 square meters and which piece or parcel of land is registered as No. 20 in volume AT17 at Land Registry, Asaba.

(ii) An order of perpetual injunction restraining the Defendant, her heirs, agents, servants, privies, workmen and whomsoever from trespassing unto Plaintiff’s parcel of land aforesaid.

(iii) The sum of N10,000,000.00 (Ten Million Naira only) being damages for trespass against the Defendant in that sometimes in 2003 Defendant broke and entered Plaintiff’s aforesaid land, destroyed Plaintiff’s cement blocks on the foundation setting and mounted a sign post on the land.

Not unnaturally, the Respondent vehemently denied the Appellant’s claim. By the Amended Statement of Defence thereof, dated 20/7/04, the Respondent counter claimed and thereby sought the following reliefs against the Appellant:

2. A declaration that the area in dispute was not acquired by Government at any time.
A declaration that, the Defendant is the owner of the piece of land in dispute, called “ONEVWU OTOK”, situate behind the Government College, Ughelli, the Plaintiff described as Plot No. 4 GRA Extension II, Ughelli on which Plaintiff is unlawfully erecting a building.

3. An order of court declaring invalid the certificate of occupancy No. DTSR 5053 purportedly issued by the Ministry of Lands, Survey and Urban Development, Asaba, in favour of Y.D. Igbrude.

4. An order of court declaring invalid the subsequent Deed of Assignment entered into between the Plaintiff and Y.D. Igbrude dated 30th of January, 2003.

5. An order of perpetual injunction restraining the Plaintiff, his heirs, servants, agents or whosoever from trespassing onto the said land in dispute.

6. The sum of N20,000,000.00 (Twenty Million Naira) being damages for trespass against the Plaintiff in that sometime in 2002 and 2003, the Plaintiff and his servants broke and entered onto the Defendant’s land and cut down Defendant’s rubber trees, and destroyed Defendant’s herbs, cassava, yam and corn planted on the land and further deposited several truck load of sand and granites on the said land, and commenced building a house on the land, which has got to roofing level and a fence which is completed.

Pleadings were duly filed by the respective parties. Thus, the case eventually proceeded to trial. Upon the conclusion of which, the lower court delivered the vexed Judgment to the following conclusive effect: The final result of all I have said in this Judgment is that the Plaintiff’s case lacks merit. It fails and it is dismissed in its entirety. The Defendant’s counter claim succeeds and I enter Judgment for the Defendant/counter claimant against the Plaintiff.

Dissatisfied with the vexed Judgment, the Appellant deemed it expedient to file the notice of appeal thereof on November 7, 2005. The notice of appeal is predicated upon a total of eight grounds of appeal. In compliance with the extant Rules of this court 2011, the learned counsel filed their respective briefs of argument. Most particularly, the Appellant’s brief was filed by Onome Egbon Esq. on October 2009, but deemed properly filed on April 22, 2010. The Respondent’s brief was filed by Chief M.O. Akoubodo on May 21, 2010. When the appeal last came up for hearing on November 4, 2013, the learned counsel adopted the argument contained in their respective briefs of argument. Whereupon, the appeal was reserved for delivery of Judgment.
At page 3 of the brief thereof, the Appellant’s counsel has raised three issues for determination, viz:

1. Whether the decision of the learned trial court based on the issue of alleged difference in peg numbers not raised by any of the parties and on which the parties were not heard is correct and can stand?

2. Whether the learned trial court was right in the face of the evidence before court, that the land in dispute in this case not within the expanse of land acquired by government as reflect in Exhibit “C” (GROUNDS 5 & 8)?

3. Whether the counter claim of the Defendant/Respondent can be rightly adjudicated upon by the court and the reliefs granted in the absence of a competent and necessary Defendants to the claim (GROUNDS 3 & 7 OF THE GROUND OF APPEAL)?

The submission of the learned counsel on Issue No. 1 is to the effect, inter alia, that the lower court has a duty not to raise an issue (question) suo motu, and base its decision on same without giving theÂ Â parties the opportunity to be heard on the issue so raised by the court. That the trial court having seen the various survey plan (s) tendered as exhibits by the Respondent during the trial, and the Respondent having not raised any question as to difference in the pillar (peg) numbers so as to afford the PW1 (a Surveyor) to explain the reasons for the pillars numbers, the lower court cannot in the recess of chambers thereof carry out investigation thereon and give meaning to same when the points were not raised and tested by any of the parties at the trial.
It was further submitted, that the PW1, Oke-Oghene Osiawa did testify (page 2 of Records) to the unequivocal fact that the whole expanse of land shown in Exhibit C, which the Appellant’s land is but a little part, is owned by the Government same having been acquired so many years ago. That, the PW4 had further stated that Exhibit D (the layout plan of GRA Extension II where PW1 the Appellant’s land is situated) is but a part and squarely within Exhibit C. And in preparation of Exhibit D, they were guided by Exhibit C, thus rejecting the assertion that Exhibit D was made up for the case.
The Appellant contended that the Respondent neither raised the issues of pillars nor was the Plaintiff witness questioned on any difference in pillars numbers noticed by the court. Thus, further contended by the learned counsel at page 4, paragraph 4 of the brief thereof.
That the learned trial court having raised the issue of difference in some peg numbers ought to have called counsel on both side (sic) to address it on the issue and the implication of the pillar numbers as the court cannot speculate on the consequence and/or attach any meaning to any numbers seen on the Exhibit in the absence of evidence.
It was argued in that regard, that the (vexed) Judgment was based on the trial court’s finding that the presence of some new survey pillars numbers on Exhibits D and F amount to an attempt to extend the area acquired by Government and therefore, the land in dispute was outside the Government acquired land. That, the issue of pillar numbers was solely raised by the lower court. And it’s trite law, that the court should not base its decision solely on issues raised suo motu without hearing the parties, as to do so would amount to an infraction of the principle of fair hearing guaranteed in the 1999 Constitution. See OJO – OSAGIE VS. ADONRI (1994) 6 NWLR (Pt. 347) 131 @ 154 D – E; REGISTERED TRUSTEES OF AMORC VS. AWONIYI (1994) 7 NWLR (Pt. 355) 154 @ 176 – 177 H – B; OSHODI VS. EYIFUNMI (2000) 13 NWLR (Pt. 683) 298 @ 332; ALLI VS. ALESHINLOYE (2006) 6 NWLR (Pt. 660) 177.
Most especially, pages 29 – 31 of the Record were alluded, with a view to showing that there is no question touching on the issue of the difference in pillars numbers or any question suggesting under cross examination (by PW1) that pillar numbers were altered or shifted. That, from the findings alluded to above at page 18 lines 19 – 37 of the Judgment, the lower court suo motu proceeded on a voyage of discovery to assemble facts and make use of them in the Judgment. That, in a line of authorities, this court has condemned such an exercise as lacking in jurisdiction. See OLAYIWOLA VS. FRN (2006) ALL FWLR (Pt.305) 667 @ 694 C; EJIOGU VS. ONYEAGUOCHA (2005) ALL FWLR (Pt.317) 467 @ 490 G – A; OTARU VS. IDRIS (?).

On this note, the court has been urged to upon to resolve Issue No. 1 in favour of the Appellant, and accordingly set aside the Judgment of the trial court.

On Issue No. 2, the Appellant’s learned counsel has submitted, inter alia, that the Respondent in the face of the Appellant’s overwhelming evidence did not file any survey plan to contradict the assertion of the Appellant (Plaintiff), nor did she call any surveyor to contradict the position of PW1 and/or fault Exhibits C, D and F.
It was contended, that (inspite of) the failure of the Respondent to file a survey plan in defence of the claim and in support of the counterclaim thereof, the lower court went on a discovery to interpret the survey plans filed in the absence of a guide through evidence by a surveyor, and came to the conclusion that the land in dispute was outside the government acquired land page. Page 90 lines 33 – 35 of the Record was referred to, wherein the lower court held thus:

“In Exhibit “C” the relevant boundaries of the Government on the Southern Western part is marked by Survey pillars/peg Nos. W1107, W1108 and W3697.”

According to the learned counsel, the survey pillar being relied upon by Appellant was not supported by oral evidence or the documentary relied upon. That a careful perusal of Exhibit ‘D’ shows that there is no survey pillar/peg No. as W3697 but rather W3627. And that a broken line in survey does not amount to a boundary but merely indicates various categories of paths and tracks. See CARTOGRAPHIC DESIGN AND PRODUCTION – BY J.S. KEATES LONGMAN GROUP LTD 1973 @ 54 – 55.

In the absence of any contradiction or challenge on the evidence of PW1, Surveyor Okeoghene Osuwa, the only expert witness in the trial, failure to accept and rely on the evidence to enter Judgment for the Appellant is inconsistent with long standing principles of law. See SEISMOGRAPH SERVICES LTD VS. ONOKPAS (1974) 1 ALL NLR Vol. @ 343.
The court is urged to uphold the Appellant’s submission on the (second) issue, and hold that Plot 4 is within Government Acquired Land.

The submission of the Appellant on issue No. 3 is to the effect, inter alia, that reliefs 1 & 2 of the counterclaim raise the question of whether all the necessary parties were joined in the suit. That the said two reliefs affect the interest of the Delta State Government over the land in dispute; as the issue of whether the land was duly acquired by the state required the presence of the state Government to protect her interest. That, the lower court declared that the area in dispute was not acquired by Government at any time, inspite of the fact that Delta State Government was not joined as a party to the suit.
It was further submitted, that the reliefs claimed by Respondent in the counterclaim thereof touched on the validity or otherwise of a certificate of occupancy duly issued by Government in respect of long time acquired land. Thus, the Delta State Government is an indispensable and necessary party that must (have been) joined in the suit. See ELEGUSHI VS. OSENI (2005) 14 NWLR (Pt. 945) 348 @ 374 -375 paragraphs F – A; BUHARI VS. YUSUF (2003) FWLR (Pt. 174) 329 @ 372 paragraphs A – E; REGISTERED TRUSTEES NACHPNN VS. MHWUH (2008) ALL FWLR (Pt. 412) 1013 @ 1074 paragraphs A – B.

It was contended, that the reliefs sought in Respondent’s counterclaim directly affected the Delta State Government who plotted out the layout, and allotted the land to well meaning Deltans for development. Thus, the question that comes to mind is what happens to the reversionary interest of the Delta State Government, and ownership over all the area acquired by the colonial government so many years ago?
The court is urged to resolve Issue No. 3 in favour of the Appellant. The court is accordingly urged upon to uphold the appeal, set aside the Judgment of the lower court, and enter Judgment in favour of the Appellant by granting all the reliefs sought in paragraph 26 of the Statement of Claim thereof.

On the other hand, the Respondent has raised four issues in the brief thereof, to wit –
1. Whether or not it is within the competence of the trial Judge to consider examine, examine and evaluate Exhibits A, B, C, D and F tendered by the Appellant in the lower court and make findings of facts thereon.

2. Whether or not the Respondent raised the fact, that the land in dispute is not part of the land acquired by Government and that Exhibits (sic) C does not show that the land in dispute was within the land acquired at the hearing in the lower court.

3. Whether from the reliefs sought in the counter claim of the Respondent, she had the duty to join the Delta State Government and Y.D. Igbrude as parties.

4. Whether from the reliefs sought in the Appellant’s Statement of Claim, he had a duty to join its predecessors, the Delta State Government and Y.D. Igbrude as parties.

Without much ado, it was submitted on Issue No. 1 that the lower court was competent to consider and evaluate evidence, oral or documentary, tendered before it by parties at the trial of the case. That, this duty of a court (to consider and evaluate evidence) is paramount and evidence placed before it must be reviewed, criticized and estimated. See BASSIL VS. FAJEBE (2001) FWLR (Pt. 51) 1914 @ 1926 – 1927 paragraphs H & A.

Further submitted, that Exhibit C was tendered by Appellant to show that the Government Station Ughelli was acquired by Government in 1947. Appellant contended in the Statement of Claim, and evidence thereof, that the land in dispute is within the land acquired by Government as shown in Exhibit C. Contrariwise, the Respondent in (Statement of) Defence, counterclaim and evidence thereof contended that the land in dispute is outside the area acquired by Government.
Copiously alluding to the findings of the lower court on Exhibits A, B, C, D & F (at pages 90 – 91), it was contended that in Exhibits D & F an attempt had been made to create new boundaries marked by survey pillars/pegs Nos. PBF 2594, PBF 2595, PBF 2596, PBF 2597 and PBF 2604 to accommodate Plot 4 within it. That, both the Appellant and the PW1, Okeoghene Osiawa, did not describe the boundary of the land acquired by Government in 1947. That, both the Appellant and PW1 merely asserted that the land in dispute was acquired by Government in 1947, and is within Exhibit C.
Thus, submitted, that the testimony of an expert is not by any means conclusive. See OGIALE VS. SPDC NIG. LTD (1997) 1 NWLR (Pt.480) 148 @ 183 paragraphs C – D.

Further submitted, that there was no evidence by Appellant and/or PW1 that a broken line in a survey plan does not amount to a boundary. Therefore, the argument of the Appellant (at pages 8, 9 & 10 of the Record) on that issue is not supported by evidence on Record. The issues thus raised are new issues of which the Appellant was not competent to raise. See KOYA VS. UBA LTD (1987) 1 NWLR (Pt. 481) 751, @ 266 – 267 paragraphs G – A.
Vehemently contended, that the lower court did not go on a voyage of discovery to import or invent evidence. That, Exhibit C was tendered by Appellant and counsel extensively addressed court thereupon and other exhibits as well. That, the trial court arrived at the correct decision based on the evidence before it. As such, where a trial court appraises facts of a case, it’s not the business of Court of Appeal to substitute its own views for that of the trial court, otherwise such findings are perverse or unsound. See ARURA (NIG) LTD VS. MAL (NIG) LTD (2001) FWLR (Pt. 77) 896 @ 920 – 921 paragraphs E – G.
Equally contended, that the lower court did not go out of the exhibits to make the findings. The finding was based on exhibits supplied by Appellant. Copiously referring to page 57 of the Record, it was argued that the issue is not a new one. As it was raised during trial. Thus, parties had an opportunity to address the lower court thereon. The peg/survey pillar numbers in question were shown in Exhibit C. That, the findings of facts were made by the lower court based on already existing evidence, with Exhibits A, B, C, D and F. Thus, it’s not a fresh fact warranting calling fresh contrary evidence. See AKINBISADE VS. STATE 27 NSCQR 743 @ 758 – 259 paragraphs H – A; WEST AFRICAN BREWERIES VS. SAVANNAH 10 NSCQR 875 @ 892 – 893; REGISTERED TRUSTEES OF AMORC VS. AWONIYI (1994) 7 NWLR (Pt.355) (2000) FWLR (Pt. 25) 1592.

It was argued by the learned counsel, that the lower court was competent to evaluate Exhibit C in the face of the contention of the parties in the case. That, the case of OLAYIWOLA VS. FR (Supra), cited by the Appellant in the brief thereof, is not relevant as the lower court did not flirt with issues and facts not before it.
The court is thus urged upon to resolve issue No. 2 in Respondent’s favour.
Issues 3 & 4 raised in Respondent’s brief were argued together. It was submitted, from the outset, that the Delta State Government was not a necessary party to the counterclaim of the Respondent. That, from the state of the pleadings, the Respondent never said Government acquired the land in dispute. It was the Appellant who raised the issue of Government acquisition of the land in dispute in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 23 and 26 of statement claim and in the amended Statement of Defence/counterclaim thereof, to the effect, thus:

“the land in dispute does not form part of the land acquired by the Government”

On the principle regarding (joinder of) a necessary party to a suit, the court was referred to the case of GREEN VS. GREEN (2001) FWLR (Pt. 76) 795 @ 814.
That, the fact that the Delta State Government was not made a party has no effect on the case, and (it) cannot suffer any disadvantage. See PROVOST LAGOS STATE COLLEGE OF EDUCATION VS. DR. EDUN 17 NSCR 370 @ 386 – 387.
It was argued, that the case of ELEGUSHI VS. OSENI (Supra) is not applicable to the case at hand. That, in OSENI’s case (Supra), it was the validity of the acquisition, non-service of notice of acquisition and revocation that were challenged. However, in the instant case, Delta State Government and Y.D. Igbrude are not necessary parties to the counterclaim, as in their absence the reliefs sought could be effectively and effectually determined. The court is urged to hold that both Delta State Government and the said Y.D. Igbrude are not necessary parties to the counterclaim. That, no miscarriage of justice has been occasioned. Hence, the findings of the lower court should not be disturbed. The court is urged to accordingly dismiss the appeal.
I have accorded a far-reaching consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel, contained in the respective briefs thereof vis-‘E0-vis the record of appeal, as a whole.
As alluded to above, the Appellant’s reliefs, vide the writ of summons and statement of claim thereof, are essentially for declaratory reliefs for a title to the land in dispute, damages and injunction. On the other hand, the Respondent has not only denied the Appellant’s claim, but also counter claimed, vide the Amended Statement of Defence and counter claim thereof. In support of the claim thereof, the Appellant had testified on 12/7/04. In the course of the testimony thereof, the following Exhibits were tendered and admitted:

(i) Exhibit A – regarding the certified true copy of certificate of occupancy;
(ii) Exhibit B – CTC of Deed of Assignment, dated 30/01/03;
(iii) Exhibit C – Survey Plan Nos. SAC. 37. SAC. 47 & KWC. 30, showing exact location of Plot 4 (land in dispute) in Exhibit C.
(iv) Exhibit D
(v) Exhibit E
(vi) Exhibit F

The PW1 and PW2, who equally testified for the Appellant, were the circle Surveyor and Assistant Director of Lands, Ministry of Lands, Surveys and Urban Development, Delta State. They both represented the Surveyor General of Delta State who was subpoenaed at the instance of the Appellant.
On the other hand, the Respondent personally testified in the defence and counter claim thereof. She equally called DW1 & DW2. The lower court delivered the vexed Judgment, thereby dismissing the Appellant’s claim, and upholding the Respondent’s counter claim.
Having accorded a critical, albeit dispassionate, consideration upon the submissions of the learned counsel, I am of the paramount view that the issues raised in the respective briefs thereof are not at all mutually exclusive. Thus, I am duly inclined to adopt the three issues formulated by the Appellant in the brief thereof for determination of the appeal, anon.

ISSUES 1 & 2

The Issue No. 1 raises the vexed question of whether or not the decision of the lower court based on the issue of alleged difference in peg numbers not (having been) raised by any of the respective parties, and upon which the parties were not heard, is correct and can stand?
Relatively, the Issue No. 2 raises the question of whether or not the lower court was right, in the face of the evidence before it, to hold the land in dispute not within the expanse of land acquired by Government as reflected in Exhibit C.
I have had the cause to, hereinabove, outline the submissions of the respective learned counsel on the issue.
By the pleadings thereof, the Appellant has averred in paragraphs 12 & 23 of the statement of claim, to the effect thus:

12. Plaintiff avers that the Government as far back as 1947 or thereabout acquired a large expanse of land of which the land in dispute forms but part and adequate compensation paid to all claimants at that time. Plaintiff may at the trial lead detailed evidence in support of the facts herein …

23. Plaintiff shall at the trial contend that the Government having acquired the entire expanse of land about 1947, over four decades ago, the Defendant has no claim over the said plot of land or any part thereof.
In support of the pleadings thereof, the Appellant testified on 12/7//04, thereby resulting in admitting of Exhibits A, B, C, D & F in question. On the part thereof, the PW1, SNR Okeoghene Osiawa, the Circular Surveyor of Warri, Delta State, testified to the effect, inter alia, thus:

I know the land in dispute. It is situate at Ughelli Government Residential Area, Ughelli. I knew there is an approved layout plan for Ughelli Residential II, Ughelli. I was amongst those who carried out the survey of the area. Delta State Government is the owner of the land comprised in the area. If it was not a government owned land I would not have heard (sic) anything to do with the preparation of the plan. Exhibit “D” is the layout plan. Hold the court about.

The PW1 stated further, that when they were drawing Exhibit D the master plan of the whole Government Residential Area (GRA) Ughelli Town was their guide to know that the land (in dispute) was Government land. According to PW1 –
Exhibit “C” is the masterplan showing the government residential area Ughelli. As a professional surveyor. I confirm that Exhibit “D” is within Exhibit “C”. The land in dispute in this case is Plot 4 in Exhibit “D”.
The land was owned by Government since 1947. The Delta State Government inherited it from Western Region to Midwest Region, Midwest State and Bendel State. Government has been developing the area gradually either directly by government or by allocating portions to individual for development for residential purpose.
The PW1 testified further, that within Exhibit C there were police station, the hospital, Government College, Ughelli, the NYSC Corpers Lodge, Secretariat and the Ughelli High Court, et al. According to him –
Government has never been challenged as its right to develop, give out or use any portions of the land in Exhibit “C” Government was not disturbed when the corpers lodge was lodged. The Plot 4 is within government residential area Ughelli. The defendant is not correct to say that the land in dispute is not part of the land acquired by government.
Under cross examination by the Respondent’s learned counsel, M.O. Akoubodo Esq, the PW1 stated, inter alia, thus:

The area was acquired some time in 1947. It was acquired for government residential area. It does not mean that it is for government official residence only. Government issued acquisition notices before it acquired the whole area sometime in 1947. Compensation was paid to those whose land … acquired … I do not know who gave the acquisition order in 1947.

The PW1 equally reiterated inter alia under cross examination, that –

“the Delta State Government granted the land in dispute to Y.D. Igbrude. Government acquired the land in dispute.” See pages 29 – 31 of the Records

It is evident on the record (pages 48 – 49) that the PW2, Mr. Charles Oduma Anwadike, an Assistant Director of Lands and Survey, Delta State, testified on 24/02/04 at the court below. The PW2 testified to the effect that he was subpoenaed to represent the Commissioner for Lands tender to purposely composite plans of the different acquisitions made by Government in Ughelli regarding the Government Station in Ughelli. He testified thus:

I was also directed to identify on that plan the land known as Plot 4 GRA Extension II, Ughelli which is now in dispute. I see this survey plan shown to me. It is the plan I have been subpoenaed to plan.

There being no objection, the lower court ruled thus:

COURT – Survey Plan Nos. SAC. 37, SAC. 47 and KWC. 30 showing the exact location of Plot 4 and certified on 22/02/2005 is admitted in evidence and marked as Exhibit “F”. Plot 4 was versed on Exhibit “F”. It was done by Mr. D.O.M. Akpoghene. The Surveyor General of Delta State Exhibit C and F are the same. The only difference is that Plot 4 is not chartered on Exhibit “C”. The land in dispute is within the area acquired by government from Exhibits “C” and “F”.

The most crucial aspect of the vexed Judgment of the lower court is contained at page 90, lines 19 – 37 of the Record, to the effect thus –

On the part of the defendant and her witnesses, they simply asserted that her land was not part of the land acquired by the government. They tendered no survey plan to show the boundary of the land acquired by government to challenge the survey plans tendered by and for the plaintiff. I am therefore entitled to rely on these survey plans to consider whether or not the land in dispute falls within the expanse of land acquired by government in or about 1947.
Obviously, the survey plan attached to exhibit “A”, as well as exhibit “D” both of which were prepared in 2002, purport to put plot 4 within the “Layout plan of Government Residential Area, Extension II, Ughelli “Exhibit “F”, on which exhibit “D” is plotted, also purports to show plot 4 within G.R.A., Extension II. However, a careful scrutiny of exhibit “C”, the original survey plan showing Government Station, Ughelli in 1947 reveals sometime interesting and different.

In exhibit “C” the relevant boundaries of the Government Station on the South Western part is marked by survey pillars/pegs No. W1107, W1108 and W3697. Clearly from exhibit “F”, Plot 4 and the other plots shown in exhibit “D” are outside the boundaries of the Government Station.
In exhibits “D” and “F”, attempts have been made to create new boundaries marked by survey pillars/pegs Nos. PBF 2594, PBF 2595, PBF 2596, PBF 2597 and PBF 2604 to accommodate plot 4 within it. This fact appears to have been acknowledged in exhibits “A” and “D” in which the area is described as “Government Residential Area Extension II, Ughelli.
It is not the case of the plaintiff that after 1947, government made further acquisition to extend the boundaries of the land acquired to the area shown in exhibits “A” and “D”. That being so I cannot speculate as to how the new boundaries shown in exhibits “A” and “D” AS “Layout Plan of Government Residential Area II” emerged in 2002. It therefore appears that the Layout of Government Residential Area Extension II, Ughelli is outside the boundaries of the Government Station Ughelli, as shown in exhibit “C”.
The plaintiff and PW1, Surveyor Okeoghene Osiawa, a staff of the Delta State Ministry of Lands, Surveys and Urban Development testified that exhibit “C” is the master plan of G.R.A. Ughelli and that exhibit “D”, including the land in dispute is within it. The defendant maintained that the land in dispute is not part of the land acquired by Government.
It was so obvious from the Record, that the issue of the difference in pillars numbers, or pillars numbers having been altered or shifted, was never raised in the course of the testimony (both in chief and under cross-examination) of the Appellant’s witnesses, most especially the PW1. The authenticity of the survey plans tendered via the PW1 was never challenged under cross examination. Rather, the Respondent’s learned counsel dwelled more on the issue of whether or not the land was acquired for public purposes. The issue of the difference in pillars numbers was neither raised by Respondent’s counsel under cross examination, nor in the final address thereof at the trial court.
The finding of the lower court on the issue of difference in pillars numbers being altered was so crucially vital for the determination of the case resulting in making the pendulum of the scale of justice to tilt in favour of the Respondent. Most ironically, however, that finding was reached, suo motu, by the lower court in the vexed Judgment thereof. The law is well settled, that a trial court, nay an appellate court, is devoid of a jurisdictional competence to raise a vital point or issue suo motu without according the respective parties the opportunity of addressing it thereon. That veritable fundamental principle had long been settled by the Supreme Court more than four decades ago. I would want to believe, that was in the notorious case of COLE VS. MARTINS (1968) 1 ALL NLR @ 162 – 163, wherein it was most aptly held thus:
It is most desirable that if a court considers after hearing argument of counsel that a matter before it can infact be decided on a technical point on which it has been addressed by counsel, then the Judge should have the matter reopened and give counsel on each side the opportunity to address him on the point which he thinks may decide the matter before he gives Judgment in regard to it. It is only after so acting that a court should adjudicate on a technical point taken by the court itself, particularly when the defect if there was one, could be cured if the court in its discretion, give leave to amend.
Per Lewis, FJSC

Most regrettably, the lower court failed to adhere to, and be strictly guided by, the dictum so eloquently and rather authoritatively enunciated in COLE VS. MARTINS (Supra).
In the instant case, the lower court at page 91, lines 20 – 33 of the Record, has copiously cited and relied upon FASHANU VS. ADEKOYA (1974) 4 SC 83 @ to hold, as it did, thus –
“It is the law that where there is conflicting oral evidence on an issue and there are documents on the same point, the documentary evidence is used as parameter, for ascertaining the truth.”
The lower court proceeded to hold that Exhibit D does not support the Appellant’s position on the location of the land in dispute. Rather, the said Exhibit C –
Supports the stance of the defendant (Respondent) that the land in dispute is not within the expanse of land acquired by government decades ago. I believe and accept the evidence of the evidence of the defendant and DW2 and I hold that the land in dispute which the plaintiff described as Plot 4, GRA Extension II, Ughelli does not fall within the expanse of land acquired by Government as Government Station, Ughelli in or about 1947.
Most interestingly, in the case of FASHANU VS. ADEKOYA (Supra), the Apex court has indeed enunciated the principle to the effect, thus –
Undoubtedly, the duty of the court in ascertaining the truth, is all but easy and the test of logic may be as availing to one as to the other. But where there is produced by both parties a large body of documentary evidence containing a number of letters and other documents … it is the duty of the learned trial Judge … to test the probability of the case of either of the parties by reference to relevant documents which represents evidence of some permanent or perhaps unassailable character. Per Coker JSC @ 91 – 92.
There is every cogent reason for me to believe, that the above principle enunciated in the case of FASHANU VS. ADEKOYA (Supra) aptly envisages a situation, in which documentary evidence has been adduced by the respective parties in a given case. In the instant case, the documents, survey plans etc, were produced by only the Appellant to support the case thereof. The Respondent did not produce any document at all! What’s more, the Appellant’s witness (PW1) had (as an expert), testified to the effect that Plot 4 i.e. the land in dispute is part of and squarely within Exhibit C. That, he was among the Surveyors that prepared Exhibit D. And that they were guided by Exhibit C in the preparation of Exhibit D. Undoubtedly, the question of differences in the survey pillar numbers was so technical a point which ought to have been raised by the Respondent at the trial. Most unfortunately, however, that was never done in the instant case. Thus, the implication of raising the said point by court, suo motu, without according the respective parties an opportunity to address it thereon, is fatal to the decision thereof. See COLE VS MARTINS (Supra) per Lewis, FJSC.
Arguably, by raising the issue of survey pillars numbers, suo motu, in the Judgment thereof, the lower court had embarked on an unnecessary and rather perversive voyage of discovery. Yet, it’s a well founded principle, that the court of law has no jurisdictional competence to embark upon a cloistered justice by making an enquiry into the case outside the precinct or purview of the four walls of hallowed temple of justice, not even by the examination of documentary exhibits put in evidence, when such documents have not been critically examined in the court. See EJIOGU VS. ONYEAGUOCHA (2005) ALL FWLR (Pt. 317) 467 @ 490; OLAYIWOLA VS. FRN (2006) ALL FWLR (Pt. 305) 667 @ 694 paragraph C.

As alluded to above, in an effort to support the pleadings thereof, that the land in dispute is within the expanse of land acquired by Government way back in 1947, the Appellant tendered Exhibit C, et al. The PW1, Okeoghene, a circular Surveyor with the Ministry of Lands, Surveys & Urban Developments, Delta State, testified to the very fact that the land in dispute, Plot 4 GRA Extension II, Ughelli is squarely within the land acquired by Government so many decades ago. What’s more, the PW1, after having had a cursory look at Exhibit C, unequivocally told the court (at page 90 lines 33 – 35 of the Record) that the Plot 4, the land in dispute, is within Government acquired land. And that –

“As a professional Surveyor I confirm that Exhibit “D” is within Exhibit “C”. The land in dispute in this case is Plot 4 in Exhibit “D”.”
See page 29 of the Record

There is every cogent, and rather compelling reason for me to uphold the contention of the Appellant’s learned counsel, to the effect that the conclusion reached in the PW1’s evidence –

is very weighty and, it is borne from training which require another Surveyor or cogent reasons to set aside and not speculation on the purport of pillar or peg numbers or interpretation of lines on a survey plan personally by the trial court who is not an expert on categorically or the production of maps or survey plan.

One is not so sure about the professional calling of the learned trial Judge apart from being a legal practitioner, within the purview of the provisions of the Legal Practitioners Act. In my considered view, for the learned trial Judge to be competent to interpret the survey plans in question (as he did), he must have been a duly qualified registered quantity Surveyor under the Quantity Surveyors’ Act.
What’s even more worrisome about the vexed lower court’s perversive decision in question, is the finding thereof (at page 90 lines 33 – 35 of the Record) to the following effect –

In Exhibit “C” the relevant boundaries of the Government Station on the Southern Western part is marked by survey pillars/peg Nos. W1107, W1108 and W3697.
However, as rightly pointed out by the Appellant’s learned counsel, the survey pillar heavily relied on by the lower court to arrive at the vexed decision, is not even supported by either the oral evidence or documentary evidence adduced at the trial. A further critical, albeit dispassionate, examination of Exhibit C would reveal, contrary to the erroneous finding of the lower court alluded to above, that there is no survey pillar/peg No. known as W3697. Rather, what is actually evidently recorded on the face of Exhibit C is pillar/peg No. W3627.
Furthermore, a cautious perusal of the pleadings of the parties would equally confirm, that while the Appellant (Plaintiff) contended in the statement of claim thereof that the large expanse of land acquired by Government indeed included Government College, Ughelli, Ughelli North Local Government Council Secretariat, as well as other areas (as (clearly) shown in Exhibit C). Contrariwise, the Respondent (Defendant) maintained that the only land acquired by Government was Government College, Ughelli. See paragraph 2 (a) of the Respondent’s Amended Statement of Defence/Counterclaim, to the effect thus:

2. The defendant avers as follows:
(a) that Government several years ago acquired large expanse of land in Ughelli for the purpose of building the Government College, Ughelli; the land in dispute does not form part of the land acquired by the Government.

Thus, the above pleading, as rightly postulated by the Appellant’s learned counsel, forms the very basis of the Respondent’s defence to the effect, that since the land in dispute was not within the Government College, Ughelli’s fence, the land was not acquired (by Government). However, as alluded to above, it’s rather obvious on the face of Exhibit C, that Government College, Ughelli forms only but a part of the wide expanse of land that must have been acquired by Government many decades ago.
Undoubtedly, the southern boundary of the Government Station Ughelli can only be one, and that’s W1107 and W3627 (and not W3697 as erroneously found by the lower court), with the stream connecting them. And this places Plot 4 (the land in dispute), and the entire Exhibit D (i.e. the Layout Plan) the land acquired by Government.
Most ironically, however, the finding of the lower court (at page 90, lines 90 – 91 Record) to the effect that boundaries appeared in the year 2002 as shown in Exhibit B which would have been the pillar numbers between W1107 and 3697 (sic), or inside the land, has amounted to a sheer misplaced speculation.
It was equally postulated by the Appellant’s counsel, rightly in my considered view, that a broken line in survey does not (necessarily) amount to a boundary, but merely indicates various categories of paths and tracks. The Appellant’s learned counsel went extra mile to refer to J.S. KEATES in his book – CARTOGRAPHIC DESIGN AND PRODUCTION, Longman Group Ltd, 1973 @ 54 – 55, thus –

… single line symbols may be modified to represent structural differences (pg. 58) which are important in distinguishing different linear features by adding adjacent point symbols in various arrangements.
They can be modified by interruptions and this is usually employed to represent the lower order of linear features which vary greatly in function. For example roads with metalled surface are usually shown by a continuous line whether single or double. Interrupted single line can indicate various categories of paths and tracks all of a lower order then paved roads. This am out to the representation of a limitation on use and is also applied to roads only. Usable during limited periods …

In my considered view, the above passage referred to at pages 9 & 10 of the Appellant’s brief effectively highlights the fact that the issue of survey pillar/peg numbers being so critically technical in nature, ought not to have been raised suo motu by the lower court without according the learned counsel to the respective parties the opportunity to address the lower court thereon. See COLE VS. MARTINS (Supra) per Lewis, FJSC. In the instant case, PW1, a professional Surveyor, gave an expert evidence which was neither contradicted, nor challenged, thus the failure or refusal by the lower court to accept same and rely thereupon is unjustifiably perversive. This is so because, it is a well settled principle, that where the only expert opinions before the court happen to be those of one party’s witness, the court is enjoined to accept and act thereupon, unless otherwise for cogent reasons. See SEIMOGRAPH SERVICES LTD VS. ONOKPAS (1974) 1 ALL NCR 1 @ 343.
Hence, in the light of the foregoing far-reaching postulations, there is every cogent reason for me to hold that the answer to each Issue Nos. 1 & 2 is in the negative, and both issues are hereby resolved in favour of the Appellant.
At this crucial point in time, I have deemed it expedient to hold that having resolved issues 1 & 2 in favour of the Appellant, there is no gainsaying the fact, that the remaining third issue has become rather superfluous. However, in view of the critical circumstances surrounding the appeal as a whole, I think it may not be a fruitless exercise to proceed to determine the said third issue on the merits.

ISSUE NO. 3

The third issue raises the very vexed question of whether or not the counter-claim of the Respondent can be rightly adjudicated upon by the lower court and the reliefs sought by the Respondent granted in the absence of competent and necessary defendants to the claim. I have dispassionately considered the respective learned counsel’s submissions outlined thereabove regarding this issue.
As outlined above, the land in dispute was allegedly acquired way back in 1947 by the defunct colonial Government. The land was eventually plotted out and allocated by Delta State Government to some (privileged) Deltans for development purposes. Arguably, the reversionary right upon the land in dispute lies with the Delta State Government that acquired and granted a certificate of occupancy thereupon.
The reliefs sought by the Respondent, vide the counterclaim thereof (pages 14 – 15 of the Record), are essentially declaratory and injunctive in nature. Most particularly, reliefs 1, 2 & 3 of the Respondent’s counterclaim are to the following effect:

1. A declaration that the Defendant is the owner of the piece of land in dispute called “ONEVWU OTOR”, situate behind the Government College, Ughelli; which the Plaintiff described as Plot No. 4 GRA Extension II, Ughelli, on which Plaintiff is unlawfully erecting a building.

2. A declaration that the area in dispute was not acquired by Government at any time.

3. An order of court declaring invalid the certificate of occupancy No. DTSR 5053 purportedly issued by the Ministry of Lands Survey and Urban Development Asaba, Delta State in favour of Y.D. Igbrude.

The lower court, as alluded to above, had (at page 102 of the Record) in the vexed Judgment in question, granted all the reliefs sought by the Respondent in the counter claim thereof, thus:

The defendant’s counter claim succeeds and I enter Judgment for the defendant/counter claimant against the Plaintiff in the following terms:
1. I DECLARE that the land in dispute, called “Onevwu-Otor” land or plot 4, G.R.A. Extension II, Ughelli was not acquired by Government for the Government Station, Ughelli in or about 1947.

2. I DECLARE that the defendant is deemed to be the holder of a statutory right of occupancy over the land in dispute called “Onevwu-Otor” land or Plot 4, G.R.A. Extension II, near Government College, Ughelli, Ughelli North Local Government Area of Delta State of Nigeria measuring approximately 3662.763 (three thousand, six hundred and sixty-two point seven hundred and sixty-three) square metres, more particularly marked and delineated in the survey plan No. UG. 64 and tracing No. DT. T. 696.

3. I DECLARE that the certificate of occupancy No. DTSR 5053 ISSUED ON 30/5/2002 in favour of Y.D. Igbrude is invalid.
Arguably, the lower court’s declaratory orders in question granting the reliefs sought by the Respondent in the counterclaim thereof in question could adversely affect the interest of the Delta State Government over the land in dispute. The issue as to whether or not the land in dispute was vested in the Delta State Government was equally germane to the effective and just determination of the case. Thus, there is no gainsaying the fact, that Delta State Government is an indispensable and necessary party to the present Suit. More often than not, this court (nay the Supreme Court) has reiterated the trite fundamental doctrine in a plethora of authorities. In the notorious case of GADI VS. MALE, this court was reported to have aptly reiterated the trite fundamental principle thus:

In a declaratory action, the court is required to determine the right of parties therein on point of law without making any executory order against the defendant. However, the law, as declared may likely touch the interest of other persons. Thus, it is necessary to accord other persons the opportunity of being heard in the proceedings. It is a settled principle that all persons whose interests will be or likely to be affected should be joined as parties to the action, as the court cannot make the declaration in such persons’ absence, save in some exceptional circumstances. See GADI VS. MALE (2010) 7 NWLR (Pt. 1193) 225 @ 283 paragraphs C – D, per Saulawa, JCA. See also ADIGUN VS. AG, OYO STATE (1987) 1 NWLR (Pt. 53) 687; IPADEOLA VS. OSHOWOLE (1987) 3 NWLR (Pt. 59) 18.
Flowing from the above well settled principle, it’s no longer contestable that the court is imbibed with an unfetted discretion to decline to grant a declaratory relief where it’s so obvious, as in the instant case, that necessary parties whose interest would be affected by such a declaration are not before the court. See ADEGBENRO VS. AG FED (1962) 2 SCNLR 130; THOMAS VS. LOCAL GOVT. SERVICE BOARD (1965) NMLR 310; PEANOIL INV. LTD VS. HOTEL PRESIDENTIAL LTD (1983) 4 NCLR 122; OKONKWO VS. OKAGBUE (1994) 9 NWLR (Pt. 368) 301; IBENEWEKA VS. EGBUNA (1964) 1 WLR 219; OGUNSANYA VS. AUDU (1982) 3 NCLR 529; JENDE VS. AG FED (1988) 1 NWLR (Pt.71) 506.
The principle has long been settled, that where in a Suit, a party seeks to declare a certificate of occupancy duly issued by Government as invalid, the State Government concerned is deemed a necessary and indispensable party, thus must be joined as a party to the Suit. And the implication of failure to join such a State Government, where it is deemed to be a necessary party to the Suit, is ominous and fatal! That is to say, the trial court is devoid of jurisdictional competence to entertain such a Suit in which a state Government deemed a necessary is not joined.Thus, any decision or order embarked upon by the trial court is null, void and of no effect whatsoever. As was aptly held by the Supreme Court –
Where the issue as to whether land in dispute has been properly acquired by State Government …, the issue cannot be completely and properly adjudicated upon and determined by the trial court without joining the State Government to the Suit. Thus, it is necessary to join the state Government where such an issue is raised.
See ELEGUSHI VS. OSENI (2005) 14 NWLR (Pt. 945) 348 @ 374 – 375 paragraphs F – A. See also BUHARI VS. YUSUF (2003) FWLR (Pt. 174) 329 @ 372 paragraphs A – E.
In the circumstance, I have no hesitation whatsoever in equally answering Issue No. 3 in the negative, and resolving same in favour of the Appellant. And I so hold.
Hence, having effectively resolved all the three Issues in favour of the Appellant, there is no gainsaying the fact, that the appeal is grossly meritorious and it succeeds. The Judgment of the High Court of Delta State, Ughievwen Judicial Division, holden at Otu-Jeremi, which was delivered on November 4, 2005 by A.A. Onojobwo, J; is hereby set aside.
CONSEQUENTIAL ORDER
Having amply considered the critical nature and circumstances surrounding the appeal as a whole, I have deemed it not only important, but equally imperative, to make an order for retrial of the case with a view to according the right of fair hearing to the respective parties.
Consequently, I hereby order that the present Suit No. HCG/35/2004: MR SUNNY OBERUMOR ADEDA AND MADAM IDONOR be, and it’s hereby, remitted to the High Court of Delta State for reassignment by the State Chief Judge to another Judge for retrial de novo.
There shall be no order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA. I agree with his reasoning and conclusion that the appeal is wholly meritorious. His Lordship dealt extensively with all the issues in controversy as technical as they were, and I have nothing useful to add to his erudite reasoning. I abide by the order of re-trial, and the order as to costs.

TOM SHAIBU YAKUBU, J.C.A.: I had the privilege of reading the draft of the lead judgment, prepared and rendered by my Lord – IBRAHIM MOHAMMED MUSA SAULAWA, JCA. He extensively dealt with all the issues thrown up in the appeal, for determination, to my full satisfaction. I, therefore completely agree with him. Hence, I have nothing more useful to add to it.
I, too allow the appeal and set aside the judgment of Onojovwo, J, delivered on 4th November, 2005 on Suit No. HCG/35/2004.
I, abide by the consequential order, remitting the said Suit No. HCG/35/2004 to the Hon. Chief Judge of Delta State for re-assignment to another judge of the Delta State High Court, for a re-trial afresh.
Each side shall bear its own costs.

Appearances

A. Akpomudje SAN for the Appellant; with Onome Egbon Esq. For Appellant

AND

G.N. Osunde Esq. For Respondent