A.G & COMMISSIONER FOR JUSTICE, EDO STATE & ORS v. AGBONLAHOR
(2022)LCN/15928(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, July 07, 2022
CA/B/369/2017
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, EDO STATE 2. THE HONOURABLE COMMISSIONER, MINISTRY OF HOUSING AND URBAN DEVELOPMENT, EDO STATE 3. THE HONOURABLE COMMISSIONER, MINISTRY OF LANDS, SURVEY AND HOUSING, EDO STATE 4. MR. D. I. DANIA APPELANT(S)
And
MADAM ALICE AGBONLAHOR RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION MUST BE RAISED FROM GROUNDS OF APPEAL
I have noticed that issues one and three are formulated from grounds 3 and 4. This is what in law is referred to as proliferation of issues. That means issues one and three have been proliferated. This practice has been outlawed in a legion of decided authorities by this Court and the apex Court.
In the case of Uwazurike & Anor v. Nwachukwu & Anor. (2012) LPELR – 19659 (SC), it was held:
“… the law is long settled that though an appellant or party may raise an issue for determination in an appeal from either a single ground or combination of grounds of appeal, he is not permitted to raise more than an issue from a ground or combination of the same grounds of appeal.”
Per ONNOGHEN, JSC (Pp. 8-9, paras. F-A)
See also the following The State v. Omoyele (2016) LPELR – 40842 (SC), p. 33 paras B – D, Yusuf & Ors. v. Akindipe & Ors (2000) LPELR – 3532 (SC) p. 8 paras A – B, Akinriboya v. Akinsole & Anor (1998) LPELR – 5464 (CA) p. 8 paras B – F, Adamu & Ors v. Baju II & Ors. (2021) LPELR – 53934 (CA) pp. 9 – 11 paras C – A. PER ABUNDAGA, J.C.A.
WHETHER OR NOT FACTS PLEADED MUST BE PROVED
It is trite that facts only and not the evidence to prove the facts are required to be pleaded – Pillars (Nig.) Ltd v. Desbordes & Anor (2021) LPELR – 55200 (SC) P. 23 paras A – C, MTN v. Corporate Communication Investment Ltd (2019) LPELR – 47042 (SC) P. 24 Paras. B – C, Ezemba v. Ibeneme & Anor (2004) LPELR – 1205 (SC) PP. 14 – 15 paras D – C.
In the case of Okechukwu v. Onuorah (2000) LPELR – 2431 (SC) P. 8 Para…, the apex Court, per Belgore, JSC held that parties to a suit must only plead facts and facts only and not the law.
The law as established is that facts only are required to be proved, and thereafter at the hearing evidence is required to be adduced in support of the pleaded facts. PER ABUNDAGA, J.C.A.
THE POSITION OF LAW WHERE THERE IS A CONDITION PRECEDENT TO CARRY OUT A PROCEDURE
This case is no doubt appropriate to the facts in this appeal. This Court in the case of Wali & Ors. v. Ogiri & Ors. (2021) LPELR – 56272 (CA) held:
“I wish to state that it is a settled principle of law, that where there exists a condition precedent to carry out a procedure, failure to fulfill the condition would mean that whatever, was done is a nullity. See the cases of ATIBA IYALAMU SAVINGS & LOANS LTD v. SUBERU & ANOR (2018) LPELR-44069(SC), BRONWEN ENERGY TRADING LTD v. CRESCENT AFRICA (GHANA) LTD (2018) LPELR- 43796(CA) and FCDA STAFF MULTI-PURPOSE (COOP) SOCIETY & ORS v. SAMCHI & ANOR (2018) LPELR-44380(CA).”
Per NIMPAR, JCA (Pp. 144-155, paras. E-A)
See also the case of Orakul Resources Ltd & Anor v. N.C.C. & Ors (2022) LPELR – 56602 (SC) Pp. 26 – 29 paras D – A, African Insurance Development Corporation v. NLNG Ltd. (2000) LPELR – 210 (SC) pp. 11 – 12 paras F – A. PER ABUNDAGA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The respondent, is an aged woman, and a widow, and childless. She acquired a piece of land measuring 50ft by 100ft, situate and being at Oka Area Unit, Upper Sakponba Road, Benin City. She had used the land for cash crop farming, with an intention to eventually build on it. She subsequently secured the assistance of her younger brother by name Mr. William Agbonlahor to prepare a building plan. Her brother in turn secured the services of one Mr. Henry Osakue to have the building plan prepared and to get it registered. Mr. Henry Osakue came back to inform her that the Town Planning Officials demanded for N500,000.00 for the facilitation of the registration and approval of the Building Plan. The respondent’s reaction to this demand was that the demand was a ploy by her neighbours to scare her from putting up the building because they were desirous of her land being converted to an access road in view of the fact that several and indiscriminate construction of houses in the area had blocked the access roads, and therefore her land would become the available access road. She therefore instructed that a three bedroom foundation be laid. It was therefore laid on 2/4/2011. That between 2/4/2011 to 4/4/2011 the work was in progress and had reached window level without any hindrance or “stop work” order from the officials of the Town Planning Office and Ministry of Housing and Urban Development. However, on 5/4/2011, when her younger brother took window frames to the site in the company of a carpenter he was surprised to see that the building had been demolished by unknown persons who later turned out to be persons from Town Planning Office in the Ministry of Lands, Survey and Housing. She had not received any notice at all from the Ministry of Housing and Urban Development or from the Country Planning Office to remove, pull down or alter anything on the land so as to bring it into conformity with the rules and regulations of the Town Planning Office, Benin City. That as a result of the shock, from the unlawful destruction of her house, she instructed her solicitor to protest vide a letter of protest to the Permanent Secretary Ministry of Lands, Survey and Housing over the wanton destruction without cause.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
It is upon the events aforestated that the respondent caused a writ of summons endorsed with a statement of claim to be issued against the appellants on 5/7/2011 in the Registry of High Court of Edo State. The statement of claim was later amended with leave of the Court, and further, with leave of Court sought and obtained, the amended statement of claim was further amended. In the further amended statement of claim, the respondent claimed as follows:
“WHEREOF: The Claimant claims against the defendants jointly and severally as follows:
(a) The sum of N1,500,000.00 (One Million Five Hundred Thousand Naira) (sic) only as special damages for the cost of materials and labour from 2/4/2011 to 5/4/2011.
(b) The sum of N3,000,000.00 (Three Million Naira) only as general damages for the shock and psychological trauma on the Claimant.
(c) Perpetual injunction restraining the defendants and/or their agents, servants, privies or whomsoever from further disturbing/interfering with Claimant’s exclusive possession of 50ft by 100ft located and situate at Omomagiowawi Lane, Off Omomagiowawi Street, Oka Area Unit, Ward 3/E, Benin City.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The 1st and 2nd defendants filed a joint statement of defence and counter-claim (the 1st and 2nd defendants are now 2nd and 4th appellants in this appeal). The 1st and 2nd defendants’ joint statement of defence and counter-claim was subsequently amended. It contains the following counter-claims:
“AND by way of counter-claim the 1st and 2nd defendants (hereinafter referred to as the plaintiffs in this counter-claim) adopt the averments in paragraphs 1 – 14 above and claim against the plaintiff (as defendant in the counter-claim) as follows:
a. The sum of N500,000 being special and general damages incurred by plaintiffs in demolishing and removing the illegal structure willfully constructed by the plaintiffs at the junction of an existing close and Omomagiowawi Lane, in Ward 33/E Oka Village Area, Benin City.
b. The sum of N500,000 being exemplary damages for the defendant’s willful and malicious conduct in erecting an illegal structure at the junction of an existing close and Omomagiowawi Lane, in ward 33/E Oka Village Area, Benin City.
c. A perpetual injunction restraining the defendant, her servant, agents, privies, how so ever described from erecting or causing to be erected any building or structure at the said close and Omomagiowawi Lane, in ward 33/E Oka Village, Benin City.
16. The plaintiffs hereby plead paragraphs 1 – 14 of their statement of defence in this suit and shall rely on same in proof of this counter-claim.”
This can be seen at pages 27 – 28 of the record of appeal.
The respondent filed a reply to the statement of defence and defence to the counter-claim. With processes fully filed and exchanged, the matter proceeded to trial. At the end of the trial, the Court delivered its judgment in which the claims of the plaintiff were granted. The defendants were distressed with the judgment and in their desire to have the judgment overturned filed the instant appeal.
The judgment was delivered by Hon. Justice G. O. Imadegbelo, of High Court of Edo State, sitting in Benin on 3rd May, 2017. The notice of appeal was filed on 23/5/17. It contains four grounds of appeal. The grounds of appeal without their particulars are as hereunder reproduced:
“GROUND 1
The judgment of the trial Judge is against the weight of evidence adduced at the trial.
GROUND 2
The learned trial Judge erred in law when he held at page 12, lines 26 – 27 of the judgment that “there was no proof from the defendants that the claimant received Exhibit E.
GROUND 3
The learned trial Judge erred in law when he held that the fact that the claimant put up an illegal structure on the land without the requisite approval, does not justify nor validate the act of the defendants’ demolition of the said claimant’s building without the requisite statutory notice prescribed in Section 25 (3) of the Town and Country Planning Law, Cap. 165, Laws of Bendel State, 1976.
GROUND 4
The learned trial Judge erred in law when he held that the procedure adopted by the appellants in the demolition of the respondent’s structure was illegal even though same was neither pleaded nor evidence thereof led during the trial.”
The record of appeal was compiled and transmitted on 11th August, 2017.
The appellants’ brief of argument settled by S. Erhase was filed on 29/10/18 and deemed filed on 6/5/22. Their reply brief was filed on 2/4/19 and deemed filed on 6/5/22.
The respondent’s brief of argument settled by V. G. Eguamwense was filed on 16/11/18 and deemed filed on 6/5/22.
Upon the briefs fully exchanged, the appeal was fixed for hearing on 6/5/22. On the said date, the appellants were represented by S. Erhase, Senior State Counsel Ministry of Justice, Edo State. He adopted the appellants’ brief and reply brief in urging the Court to allow the appeal and set aside the judgment of the lower Court.
The respondent was at the hearing represented by V. G. Eguamwense who adopted the respondent’s brief and urged the Court to dismiss the appeal and affirm the judgment of the lower Court.
In the appellants’ brief of argument, three issues were formulated for determination. The issues are hereunder reproduced as follows:
“(i) Whether the finding and reliance by the trial Court on Section 25 (1), (2) and (3) of the TOWN AND COUNTRY PLANNING LAW, Cap. 165, Laws of Bendel State, 1976 (also applicable to Edo State of Nigeria), to declare the prior notices (Exhibits E and F) issued and served on the respondent through her commissioned agent and workers on site before the demolition of the respondent’s uncompleted building, insufficient even though the law was never pleaded or evidence led thereof by the respondent. (Grounds 3 and 4).
(ii) Whether the learned trial Judge was right when she held that there was no proof from the appellants that the respondent received Exhibit “E” (the rejection letter of the proposed building plan). (Ground 2)
(iii) Whether the learned trial Judge was right when she held that the demolition of the respondent’s uncompleted building by the appellants was unjustifiable and illegal having regards to Section 25 (3) of the TOWN AND COUNTRY PLANNING LAW Cap. 165, Laws of Bendel State, 1976 not minding that the building was an illegal structure being built by the respondent with impunity.” (Grounds 3 and 4)
ARGUMENT ON THE ISSUES
On the first issue, it was submitted for the appellants that the trial Court was in error in relying on the requirements of Section 25 (1), (2) and (3) of the Town and Country Planning Law in giving judgment in favour of the respondent when the law was not pleaded and testified to in the respondent’s evidence. Counsel refers the Court to paragraph 23 of the further amended statement of claim. It was submitted that the appellants’ argument in relation to S.25 of the Town and Country Planning Law was merely imported into the address of counsel without any basis from the pleadings and evidence before the lower Court. Further submitted is that no matter how well prepared and delivered an address of counsel is, it cannot take the place of evidence. It was also contended that apart from the fact that no specific regulation or legislation requires personal service of the notice on the claimant/respondent, its contravention cannot take the place of evidence in law and practice. It is also counsel’s submission that averments in pleadings are no evidence and therefore it can be construed that the claimant/respondent failed to lead evidence or call witness in proof of the averment in paragraph 23 of the further amended statement, which the defendants/appellant’s did not admit. Therefore, counsel concluded, the averment in paragraph 23 is deemed abandoned. Referring to Section 30 of the Nigerian Urban and Regional Law which prohibits the development of any building without a prior development permit, counsel submitted that this was admitted by the claimant. Therefore, it was submitted that fact admitted needs no proof. Counsel relies on Section 123 of the Evidence Act, 2011. That even though the claimant was aware that the registration and approval of the proposed building plan was a fundamental requirement before commencing the building, she never actually obtained such approval before the commencement of the building. That the claimant hands are not clean. Submitted that it is a fundamental principle of equity that he who seeks an equitable remedy or other equitable relief must show that his past conduct in the transaction has been fair, honest and above board. Counsel relies on Datec Int’l (Nig.) Ltd v. Universal Insurance Co. Ltd (2006) 4 CLRN (CA) p. 115 – p. 117, lines 30 – 37.
It was further submitted that the claimant’s failure to call Mr. Henry Osakue (her agent) amounted to withholding evidence. Relies on S. 167 (d) of the Evidence Act, 2011, the cases of Onwujuba & Ors v. Obienu & Ors (1991) 4 NWLR (Pt. 183) 16 and Nigerian Airforce v. Obiosa (2003) 4 NWLR (Pt. 810) 233.
Counsel stated that the 2nd appellant decided to demolish the structure which he described as illegal because it was obvious that the respondent was not ready to obey the Ministry of Lands, Survey and Housing directive (Exhibit “7”) as it relates to the illegal development.
The appellants’ counsel next shifted his argument to issue two wherein he faulted the finding of the lower Court that there was no proof that the appellants served the respondent with Exhibit “E”. Counsel pointed out that it was issued and served on the respondent through her agent, Mr. Henry Osakue while he was executing the contract of agency between the respondent and the appellants. It was submitted that there is evidence on record that PW2 – Williams Agbonlahor indeed commissioned Mr. Henry Osakue on behalf of the respondent (a fact admitted by the respondent). That Exhibit “E” was therefore received by Henry Osakue pursuant to the agreement he has with the respondent. It was pointed out that there is no evidence that the respondent personally presented the proposed building plan to the 2nd appellant’s office for registration and approval, nor was there any evidence that the appellants had any direct dealings with the respondent at the time the respondent’s agent received Exhibit “E” on behalf of his principal, the respondent on 7/3/2011. Counsel argued that the respondent cannot deny being served Exhibit “E”.
It was further submitted that it is not in dispute that there was no prior registration and approval of a proposed building plan which is mandatory for the actual erection of that building. That this issue ought to have been resolved by the trial Court. It is submitted that it is an offence under Section 30 of the Nigerian Urban and Regional Planning Law for a building to be erected without this prior approval. The Court is urged to resolve this issue in favour of the appellants.
Issue three was answered in the affirmative by appellants’ counsel. Counsel reiterates the arguments he had proffered on issue one in the same tune, and points to the fact that the respondent commenced construction in defiance of Exhibit “E” to the effect that she could not put up that building. Counsel once again submitted that the respondent did not plead and lead evidence as to the illegality of the procedure adopted by the appellants in demolishing the respondent’s structure. Counsel faulted the respondent’s reliance on paragraph 23 of her amended statement of claim as the respondent failed to plead and lead evidence in support of the issue of the appellants’ failure to wait for 3 months before demolishing the respondent’s structure. That the appellants were taken by the surprise that the Court relied on the submission of respondent’s counsel to resolve the issue in favour of the respondent.
Counsel therefore urged the Court to resolve all the three issues in favour of the appellants, and to allow the appeal.
The respondent distilled the following lone issue for determination:-
“Whether the defendants/appellants contravened Part 4 Section 25(3) of the Town and Country Planning Law, Cap 165, Laws of Bendel State, 1976 (also applicable to Edo State of Nigeria).”
The submission made on behalf of the respondent by his counsel commenced on the note that the pre-conditions stated in this law was not met by the defendants/appellants before the demolition of the respondent’s house. Referring to the evidence of DW2, the counsel pointed out that Exhibit “F” (the stop work/removal order) was dispatched on 2/4/11 while the house was demolished on 5/4/11 under the supervision of the said DW2. Counsel refers the Court to page 164 of the record of appeal. The Court is referred to the case of Yaki & Ors v. Bagudu & Ors (2015) Vol. 249 LRCN 1 at page 28 ratio 29, where it was held that where condition precedent is mandatory for doing an act, the failure to fulfill that precondition obviously renders the doing of any act subsequent without first fulfilling the pre-condition of no effect.
The Court was also referred to the record of appeal, particularly pages 129 – 131 on the evidence of DW1 and DW2 on service of Exhibit “E” on the respondent through Mr. Henry Osakue. It was also pointed out that DW2 under cross-examination admitted that there was no layout plan for the alleged junction where the respondent was erecting her building. Counsel argued that the appellants acted in bad faith, and being public officers, it was submitted that the law will not protect them if their actions are unconstitutional, unlawful, and null and void in the course of their official assignment. Several cases were cited to support this submission. The Court was urged to resolve the issue in favour of the respondent.
In reply to the appellants’ submission, it was contended by the respondent’s counsel that there is no evidence of agency relationship between the respondent and Mr. Henry Osakue. That assertion coming from the appellants, the onus was theirs to prove, counsel contended. Counsel also referred to the evidence of DW2 (Dalla Donia) who admitted under cross-examination that the respondent did not come to his office to introduce a person to him as agent. On the issue of whether there was compliance with Section 25(3) of the Town and Country Planning Law, Cap 165 Laws of Bendel State (also applicable in Edo State), it was submitted by respondent’s counsel that even if it was conceded (without conceding) that Exhibit “E” was served on Mr. Henry Osakue by proxy, the question still remains, how was it dispatched to him as claimed by DW1? Counsel therefore concluded that Exhibit “E” was not acknowledged by anybody. Therefore, the claim of DW1 on oath is an afterthought calculated to defend what is indefensible. On the appellants’ claim/submission based on the failure of the respondent to call her agent, it was submitted by respondent’s counsel that the issue of agency agreement is a non-issue since it did not exist. That however, there was enough evidence both oral and documentary to prove the respondent’s case on balance of probability.
Counsel therefore urged the Court to dismiss the appeal, as same is lacking in merit and substance.
In the appellants’ reply brief, counsel substantially reiterated the submissions made in the appellants’ brief of argument. I need not capture it in this space since in law, that is not what a reply brief is meant to serve.
He however introduced an issue for the first time, that is, that the respondent’s brief should be discountenanced because it was not signed/franked by a legal practitioner whose name is on the roll.
Once again, I want to state that a reply brief is meant to reply to new issues which are introduced into the appeal by the respondent. Counsel cannot introduce an entirely new issue in the appeal in the reply brief because the respondent would be shut out from replying to it.
Order 19 Rule 5(1) of the Court of Appeal Rules 2021 underscores the point I am labouring to make. The said Order 19 Rule 5(1) provides:
“The Appellant may also, if necessary, within fourteen (14) days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent, a reply brief which shall deal with all new points arising from the Respondent’s brief.”
It will therefore constitute denial of fair hearing to the respondent if this issue is considered without a platform provided for the respondent to be properly heard on the issue.
In view of all that I have said on the appellants’ reply brief, same is discountenanced and leaves the appellants’ and respondent’s brief of argument as the processes and submissions on which this appeal will be determined.
I have noticed that issues one and three are formulated from grounds 3 and 4. This is what in law is referred to as proliferation of issues. That means issues one and three have been proliferated. This practice has been outlawed in a legion of decided authorities by this Court and the apex Court.
In the case of Uwazurike & Anor v. Nwachukwu & Anor. (2012) LPELR – 19659 (SC), it was held:
“… the law is long settled that though an appellant or party may raise an issue for determination in an appeal from either a single ground or combination of grounds of appeal, he is not permitted to raise more than an issue from a ground or combination of the same grounds of appeal.”
Per ONNOGHEN, JSC (Pp. 8-9, paras. F-A)
See also the following The State v. Omoyele (2016) LPELR – 40842 (SC), p. 33 paras B – D, Yusuf & Ors. v. Akindipe & Ors (2000) LPELR – 3532 (SC) p. 8 paras A – B, Akinriboya v. Akinsole & Anor (1998) LPELR – 5464 (CA) p. 8 paras B – F, Adamu & Ors v. Baju II & Ors. (2021) LPELR – 53934 (CA) pp. 9 – 11 paras C – A.
By these authorities, issues 1 and 3 are liable to be struck out, or in the least discountenanced.
However, not being the final Court, I will treat the issues on their merit.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Considering the issues both of the appellants and the respondent and the arguments canvassed, the issues formulated by the appellants’ better capture the appellants’ grievances against the judgment of the lower Court as conveyed in the grounds of appeal. Therefore, I adopt the appellants’ issues for the determination of the appeal. However, because they are closely interrelated, I will consider them together. Let me first deal with the issue of service of Exhibit “E” and Exhibit “F” on the respondent.
Exhibit “E” is letter with Ref No. MCSH/BC/949/2011/12 dated 7/3/2011, titled: Building Plan No. MCSH/BC/949/2011 for Madam Alice Agbonlahor”. It is the letter conveying the appellants’ rejection of respondent’s building plan, and warning not to carry out construction of her building on the site shown to them.
Exhibit “F” is the copy of the notice of stop work/removal order alleged issued and served on the plaintiff by an official of the defendant in respect of the plaintiff’s land, dated April 2, 2011.
With respect to Exhibit “E”, the contention of the appellants’ is that it was served on the respondent through Mr. Henry Osakue who had interacted with the appellants on behalf of the respondent. The respondent on the other hand denied receipt of the said Exhibit “E”. Even though it is in evidence that the said Henry Osakue was not formally introduced to the appellants as her agent, (in fact DW2 under cross-examination conceded this), the respondent also conceded that Henry Osakue had acted for her. This is because the respondent admittedly instructed her younger brother, Williams Agbonlahor to act for her. It was the said Williams Agbonlahor who engaged Henry Osakue to get a building plan prepared for the respondent and to have it registered for approval. Again, it was Mr. Henry Osakue that informed the respondent through Williams Agbonlahor that the officials of the appellants demanded for N500,000.00 to secure the approval of the building plan. In the circumstances, it can be said that the respondent had by conduct made the appellants to believe that Mr. Henry Osakue was her agent on any matter relating to the construction of the building on the land. The operation of estoppel by conduct was thus explained in the cases of Chief O. N. Nsirim v. Aleruchietcheson Nsirim (2002) LPELR – 8060 (SC):
“…. it needs be restated that where one by his words or conduct willfully causes another to believe the existence of certain state of things and induces him to act on that belief so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time. This is how the rule in estoppel by conduct otherwise also known as estoppel by matter in pais has been stated. See Joe Iga and Others v. Ezekiel Amakiri and Others (1976) 11 SC 1; Gregory Ude v. Clement Nwara and Another (1993) 2 NWLR (Pt.278) 638 at 662-663.”
Per IGUH, JSC (P. 20, paras. A-C).
See also Anaeze v. Anyaso (1993) LPELR – 480 (SC) Pp. 42 – 43 paras F – B, Oyerogba & Anor v. Olaopa (1998) LPELR – 2878 (SC) P. 12 paras D – F, Bank of the North Ltd v. Yau (2001) LPELR – 746 (SC) p. 37 paras B – E.
In the circumstances, the respondent cannot be heard to say that Mr. Henry Osakue was not her agent.
However, the question that necessarily arises is whether there was proof that the said Exhibit “E” was actually delivered to the said Henry Osakue. Proof of such delivery is on the person who alleged delivery. In this case, the appellants bear the burden of proving that Exhibit “E” was delivered to Henry Osakue. Ordinarily, this is done by securing the endorsement of a duplicate copy by the person who received the process or letter and if it is a Court process, the most often procedure acceptable in Court is that the person who effect service of the process files an affidavit of service. The appellants have not produced or tendered any document or endorsement by Henry Osakue to show that he was given Exhibit “E”.
The evidence of the appellants is that Exhibit “F” was given to one of the people working on the land in question on 2/4/2011 when the government officials went to the land. The respondent has denied service of the said notice of stop work/order (Exhibit “F”). This necessitated proof that the respondent was served. The onus was clearly on the appellants. See for instance Sections 131, 132 and 136 of the Evidence Act, 2011.
See the case of Oduola & Ors v. Coker & Ors (1981) LPELR – 2254 (SC) Pp. 89 – 39 paras G – A, Edokpolo v. Asemota (1994) LPELR – 14474 (CA) p. 23 paras A – B, Abdullahi v. Hashidu & Ors. (1999) LPELR – 6504 (CA) pp. 7 – 8 paras F – A.
The burden having not been discharged, it cannot be disputed by the appellants that Exhibit “F” was also not served on the respondent.
It has not been established before the Court that Exhibit “E” and Exhibit “F” were served on the respondent before her structure was pulled down (demolished) on 5/4/2011 by the appellants. Thus, issues 1 and 2 are firmly established and resolved in favour of the respondent and against the appellants.
Now, the big question is issue three, which the appellants have strenuously argued has to be resolved in their favour. According to the appellants as pleaded in their Joint Amended Statement of Defence and testified to, when on 4/4/2011 they received information which they confirmed to be true that development on the land was ongoing, an obvious indication that the respondent was not ready to heed their stop work/order, they decided to demolish it, and the said demotion was personally supervised by DW1. This they did on the strength of Section 30 of the Nigerian Urban and Regional Planning Law which prohibits the development of any building without a prior development permit which the respondent admitted she did not have. It was also argued by the appellants that the respondent did not plead and give evidence on Section 25(3) of the Town and Country Planning Law, Cap 165 Laws of Bendel State, 1976 (also applicable to Edo State). That the said law was only brought in the written address of the respondent’s counsel. Counsel by this submission appears to me to suggest that the law ought to be pleaded and given in evidence. I have gleaned through the respondent’s third amended statement of claim, and have seen that facts relating to non-service of stop work/order on the respondent before the demolition of her structure were pleaded and given in evidence.
The respondent pleaded thus in paragraph 23 of her 3rd further amended statement of claim:
“The claimant avers that she did not receive any notice at all from the Ministry of Housing and Urban Development or from the city or country planning office to remove, pull down or alter, so as to bring into conformity with the Rules and Regulations of the town planning office in Benin City.”
It is trite that facts only and not the evidence to prove the facts are required to be pleaded – Pillars (Nig.) Ltd v. Desbordes & Anor (2021) LPELR – 55200 (SC) P. 23 paras A – C, MTN v. Corporate Communication Investment Ltd (2019) LPELR – 47042 (SC) P. 24 Paras. B – C, Ezemba v. Ibeneme & Anor (2004) LPELR – 1205 (SC) PP. 14 – 15 paras D – C.
In the case of Okechukwu v. Onuorah (2000) LPELR – 2431 (SC) P. 8 Para…, the apex Court, per Belgore, JSC held that parties to a suit must only plead facts and facts only and not the law.
The law as established is that facts only are required to be proved, and thereafter at the hearing evidence is required to be adduced in support of the pleaded facts. This takes me to the question as to whether the respondent gave evidence in support of the facts she pleaded in paragraph 23 of her further amended statement of claim. She unequivocally did. I refer to the claimant’s further amended statement on oath which she deposed to on 16/10/14. It was adopted as her evidence in chief on 13/10/14. In paragraph 25 of the said statement on oath, she stated:
“That I did not receive any stop work notice at all from the Ministry of Housing and Urban Development or from the City or Country Planning office to remove, pull down or alter, so as to bring into conformity with the Rules and Regulations of the Town Planning Office Benin City.”
The respondent as PW1 was cross-examined on her evidence. She was cross-examined as to whether she got the building approval she applied for to which she answered in the negative, and explained that they (officials) demanded for some huge amount of money which she did not have. It is also now clear that her evidence that she did not receive any stop work notice before her structure was demolished was not controverted. It is therefore established that the respondent as required by law pleaded, and testified to the fact that the appellants did not serve her a stop work notice before her structure was demolished. Section 25(3) of the Town and Planning Law, Cap 165 Laws of Bendel State 1976 (applicable to Edo State) provides:
“The date stated in a notice served under this section as the date on or after which the intended exercise of the power therein mentioned is intended to be begun shall be not less than three months when any building is affected, and in any other case not less than one month after the date of service of such notice, and the authority shall not do any act or thing in exercise of such power in relation to the building or land mentioned in the notice before such date.”
The law requires that in the case of a building as in the instant case, no power given under the section shall be exercised until after a period of three months from the date a notice of stop work/order was given. Giving flesh to this provision, learned counsel for the respondent cited and relied on the statement of Ogunbiyi, JSC in the case of Yaki & Ors v. Bagudu & Ors (2015) vol. 249, LRCN P.1 at P.28 Ratio 29 that:
“The general rule is, where condition precedent is mandatory for doing an act, the failure to fulfill that pre-condition will obviously render of non effect the doing of any act subsequent without first fulfilling the pre-condition.”
This case is no doubt appropriate to the facts in this appeal. This Court in the case of Wali & Ors. v. Ogiri & Ors. (2021) LPELR – 56272 (CA) held:
“I wish to state that it is a settled principle of law, that where there exists a condition precedent to carry out a procedure, failure to fulfill the condition would mean that whatever, was done is a nullity. See the cases of ATIBA IYALAMU SAVINGS & LOANS LTD v. SUBERU & ANOR (2018) LPELR-44069(SC), BRONWEN ENERGY TRADING LTD v. CRESCENT AFRICA (GHANA) LTD (2018) LPELR- 43796(CA) and FCDA STAFF MULTI-PURPOSE (COOP) SOCIETY & ORS v. SAMCHI & ANOR (2018) LPELR-44380(CA).”
Per NIMPAR, JCA (Pp. 144-155, paras. E-A)
See also the case of Orakul Resources Ltd & Anor v. N.C.C. & Ors (2022) LPELR – 56602 (SC) Pp. 26 – 29 paras D – A, African Insurance Development Corporation v. NLNG Ltd. (2000) LPELR – 210 (SC) pp. 11 – 12 paras F – A.
Section 25(3) of the Law gives the appellants three months after the issuance of notice after which they could take any steps in relation to the building even if it was proved to be an illegal structure. However, acting on the information given to them by neighbor of the respondent that construction on the land was ongoing, the appellants became edgy. It was as if they had an axe to grind with the respondent. They could not hold their peace. They lost their cool and decided to throw the provision of the law which they ought to know better, overboard. Just three days after the stop work order notice was allegedly issued, to be precise; on 5/4/2011, they decided to undertake the demolition of the respondent’s building. The worse scenario is that the issuance of the stop work/order (Exhibit “F”) on the respondent could not be established in Court.
There is no doubt that the respondent admittedly did not obtain the required approval before she commenced her building construction in contravention of Section 30 of the Nigerian Urban and Regional Law. However, the consequences must be visited on her within the provision of Section 25(3) of the Town and Country Planning Law Cap 165, Laws of Bendel State 1976 (also applicable to Edo State). Therefore at the time the appellants demolished the respondent’s building they had no power to do so. Their action was thereby illegal, an abuse of power, in bad taste, and leaves so much to be desired.
Issue three is therefore resolved in favour of the respondent, and against the appellants.
In view of the foregoing, this appeal is profoundly lacking in merit. It is hereby dismissed.
In consequence, the judgment of the lower Court delivered on 3rd May, 2017 by Hon. Justice G. O. Imadegbelo in Suit No. B/479/2011 is hereby affirmed.
Parties to bear their respective costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the preview of the lead judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with his reasoning and conclusion reached in the issues treated therein. I also hold that the appeal lacks merit and same is accordingly dismissed.
I too uphold the judgment of the High Court of Edo State delivered on 3rd May, 2017 by G. O. Imadegbelo, J. in Suit No. B/479/2011.
I abide by the order made as to costs.
ADEMOLA SAMUEL BOLA, J.C.A.: I have read through the draft of the judgment delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA. I am in agreement with his reasoning and conclusion.
I abide by his decision and the order made.
Appearances:
E. Erhase, Senior State Counsel, Ministry of Justice, Edo State. For Appellant(s)
V. G. Eguamwense. For Respondent(s)