ALHASSAN v. THE MINISTER, FCT & ORS (2020)

ALHASSAN v. THE MINISTER, FCT & ORS

(2020)LCN/14509(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, July 21, 2020

CA/A/162/2018

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

AMINA ALHASSAN APPELANT(S)

And

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

RATIO

WHEN AN ISSUE OF FACT IS SAID TO BE JOINED ON THE PLEADINGS

An issue of fact is joined on the pleadings when a party’s pleading of that fact is denied by the pleading of the adverse party. As held by the Supreme Court in Ajide V Kelani (1985) 3 NWLR (Pt.12) 248 @ 251 that “an issue or question is irrelevant if it does not arise from the pleadings. An issue is said to be joined when one party asserts the existence or non existence of a fact and the other party asserts the contrary by denying the existence or non existence of that fact”. See also Abdul V Garba (2010) LPELR – 9132 (CA). There was no need to prove it as it was not in dispute. It is settled law that issues of fact that require proof are issues that are on trial because the parties have in their pleadings joined issues on them. See ACB PLC & Anor V Emostrade Ltd (2002) 4 SC (Pt.11) 1. PER AGIM, J.C.A.

WHETHER OR NOT A SURVEY PLAN IS A DOCUMENT OF TITLE AND CAN BE RELIED ON AS PROOF OF TITLE TO LAND

It was held in ITA V. ITA (2013) LPELR – 22007 (CA) that a survey plan is not a document of title and cannot be relied upon as proof of title to land. The purpose for tendering a survey or site plan is not to prove title but merely to demonstrate with reasonable certainty the identity and extent of the land claimed; a plan that is properly oriented, drawn to scale, accurate, reflecting all the features of the land and showing clearly the boundaries. See OWIE V. IGHIWI (2005) 3 MJSC 82 and OYEFESO V. COKER (1999) 1 NWLR (PT 588) 654. PER AGIM, J.C.A.

WHETHER OR NOT THE BURDEN OF PROOF REST ON THE PARTY THAT AFFIRMS

The point has already been made that the burden of proof rests upon he who affirms but not on he who denies since by the nature of things he who denies a fact cannot produce any proof of that fact. See AROMOLARAN V. KUPOLUYI supra, ARASE v. ARASE supra, ELEMO v. OMOLADE supra and OSAWARU v. Ezeiruka SUPRA. Since it is the Plaintiff who is asserting that the plots were redesigned and/or renumbered whilst the Defendants merely denied that this ever happened, the burden of proving this fact rests squarely on the shoulders of the Plaintiff. Did she succeed in discharging this burden? I do not think so. PER AGIM, J.C.A.

WHETHER OR NOT A SURVEYOR CAN BE AN INTERESTED PERSON A TO RENDER INADMISSIBLE A SURVEY PLAN OR REPORT MADE BY HIM DURING THE PENDENCY OF AN ACTION

The Courts have taken a stance that a surveyor, like any expert in any other specialised field of knowledge, is not an “interested person” within the meaning and intendment of the section so as to render inadmissible a survey plan or report made by him during the pendency of an action. See PETERSIDE & ORS V. WABARA & ORS (2010) LPELR – 4847 (CA). The rationale for this is that such an expert has no personal purpose to serve nor is he ordinarily under any temptation to depart from the truth as he sees it from his professional perspective and experience. See PETER OKONKWO & ORS v. BERNARD OKONKWO & ORS (2004) 5 NWLR (PT. 865) 87 at 126 [per Olagunju, JCA] and GBADAMOSI v KABO TRAVELS [2000] 8 NWLR (PT. 668) 243. There is therefore no anxiety as far as the admissibility of the survey report [Exhibit P9] prepared by PW2 is concerned. But the point to underscore is that the admissibility of a document is one thing, whilst the evidential value or forensic utility of that document is a different kettle of fish. See OKONJI v NJOKANMA [1999] 14 NWLR (PT. 638) 250, AKANIWON v NSIRIM [1997] 9 NWLR (PT. 520) 255, DALEK NIGERIA LIMITED v OMPADEC [2007] NWLR (PT. 1033) 402 and CHIME v EZEA [2009] 3 NWLR (PT. 1125) 263 at 352. PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/162/2018 was commenced on 9-2-2018 when the appellant herein filed a notice of appeal against the judgment of the High Court of the Federal Capital Territory at Abuja delivered on 11-1-2018 in suit No. FCT/HC/CV/1168/2014 by Peter O. Affen J. The notice of appeal contains 9 grounds of appeal.

The parties herein filed, exchanged and adopted their respective briefs as follows- appellant’s brief, 1st and 2nd respondent’s brief, 3rd respondent’s brief and appellant’s replies.

The appellant’s brief raised the following issues for determination.
a. Whether it was proper for the Trial Court to have awarded N100,000.00 (One Hundred Thousand Naira only) to the 3rd Respondent as Defendant in the Court below when its juristic standing was not proved merely because the 3rd Respondent is a party in the action? (Distilled from Ground one of the Grounds of Appeal)
b. Whether by virtue of Section 13(3)(b) of the Federal Capital Territory Act read with Section 316(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

it was proper for the Trial Court to have decided that:
“It cannot escape notice that Exhibit P3 did not convey the approval of the Honourable Minister of the Federal Capital Territory whereas there is uncontradicted evidence before me that Engr. Abba Gana was the incumbent Honourable Minister of the Federal Capital Territory as at 2003 when Exhibit P3 was made. This being so, the Defendant insistence that Exhibit P3 is not a typical Offer Letter issued by the 1st and 2nd Defendants cannot be lightly wished away.” When apart from Sections 13 of the Federal Capital Territory Act and the Constitution of the Federal Republic of Nigeria 1999 (as amended) there were evidence before the Court that the 1st respondent is estopped from contending that the Appellant’s grant is not from him? (Distilled from Ground Nine of the Notice of Appeal).
c. Whether it was proper in the entire circumstances of the case before the Trial Court, for the Court to refused to rely on the documentary and oral evidence of PW2 an expert in the field of survey, when the Respondents did not plead nor tender a counter Survey Report or gave evidence contradicting

PW2’s oral and documentary evidence that were pleaded. (Distilled from ground 2 of the Notice of Appeal).
d. Whether in view of both the oral and documentary evidence adduced by the Appellant before the Trial Court, it cannot be said that the Appellant has sufficiently discharged the requisite burden of proof as required in civil proceeding to be entitled to Judgment in respect of Plot 90, Sector Centre A, Cadastral Zone B15 Abuja. (Distilled from Grounds 4, 6, 7 and 8 of the Notice of Appeal)
e. Whether the 1st and 2nd Respondents who requested and received Ground Rent and Certificate of Occupancy fees from the Appellant in respect of Plot Number 90, Sector Centre A, Cadastral Zone B15, Abuja as arising from Plot LD3, Gaube District Abuja and Plot CD 39, Sector Centre A, Cadastral Zone B15, Abuja are not estopped from subsequently maintaining that plot number 90 Sector Centre A, Cadastral Zone B15 has no relationship with Plot LD3, Gaube District, Abuja and Plot CD39, Sector Centre A, Cadastral Zone B15, Abuja. (Distilled from Ground 5 of the Notice of Appeal).
f. Whether in all civil proceedings and in the circumstance of this instant

case, can oral evidence be used to vary and contradict the content of a documentary evidence. (Distilled from Ground 8 of the Notice of Appeal).

The 1st and 2nd respondents’ brief raised the following issues:-
1. Whether in view of the evidence placed before the Court, the appellant discharged the burden of proof that she holds a valid title which is traceable to or derived from the 1st respondent over all that parcel or plots of land situate at Plot 90 Sector Centre A, Cadastral Zone B15, Abuja. (Distilled from ground 4 and 9 of the Appellant’s Notice of Appeal)
2. Whether in view of the evidence placed before the Court, the appellant discharged the burden of proof that Plot No. CD 39, Sector Centre A, Cadastral Zone B15 Abuja, was renumbered to be Plot 90 Sector Centre A, Cadastral Zone B15 Abuja? (Distilled from grounds 2, 3, 6, 7 and 8 of the Appellant’s Notice of Appeal).
3. Whether the appellant can set up a plea of estoppels on appeal where such was not part of her case at the trial Court.
Assuming but not conceding she could, can the plea of estoppels avail the appellant where the 1st and 2nd Respondents

denied knowledge of the acts/documents warranting the plea of estoppels? (Distilled from ground 5 of the Appellant’s Notice of Appeal).
4. Can a Court of law rely on the oral evidence of a witness elicited at Cross-examination in its judgment? (Distilled from ground 9 of the Appellant’s Notice of Appeal).

The 3rd respondent’s brief raised the following issues for determination-
1. Whether the plaintiff can set up a case on appeal different from that at the lower Court? (Distilled from ground 1 of the Notice of Appeal).
2. Whether in view of the evidence placed before the Court, the appellant discharged the burden of proof that Plot No. CD39, Sector Centre A, Cadastral Zone B15 Abuja, was renumbered to be Plot 90 Sector Centre A, Cadastral Zone B15 Abuja.
3. Whether the appellant can set up a plea of estoppels on appeal where such was not part of her case at the trial Court.
Assuming but not conceding she could, can the plea of estoppels avail the appellant where the 1st and 2nd respondents denied knowledge of the acts/documents warranting the plea of estoppels? (Distilled from Ground 5 of the Appellant’s

Notice of Appeal).
4. Can a Court of law rely on the oral evidence of a witness elicited at cross-examination in its judgment? (Distilled from Ground 9 of the Appellant’s Notice of Appeal).

This appeal will be determined on the basis of the issues raised for determination in the appellant’s brief.

Let me start with issue No. 1 which asks “Whether it was proper for the Trial Court to have awarded N100,000.00 (One Hundred Thousand Naira only) to the 3rd Respondent as Defendant in the Court below when its juristic standing was not proved merely because the 3rd Respondent is a party in the action?“

I have carefully read and considered the arguments in the respective briefs on this issue.

Following its dismissal of the plaintiff’s claim, the trial Court awarded costs of N100,000.00 against the plaintiff in favour of each of the defendants. The 3rd respondent herein was the 3rd defendant.

Now the appellant’s complain in ground 1 of this appeal and issue No. 1 derived therefrom is that the award of the N100,000.00 costs in favour of the 3rd respondent as a party to the suit was wrong because its

juristic standing was not proved.

I agree with the submission of Learned Counsel for the 3rd respondent that the juristic personality of the 3rd defendant was not made an issue for trial on the pleadings, that the plaintiff who filed the suit against the 3rd defendant cannot turn around now on appeal to contend that the person she sued as a 3rd defendant has no juristic personality and therefore is incapable of being entitled to the award of any reliefs in the suit and that this complain by the appellant in this appeal is different from the case she presented at the trial Court.

The appellant as plaintiff made the respondents defendants to the suit brought by her. In paragraph 1 of her statement of claim, she described the 3rd defendant thusly-
“4. The 3rd Defendant is the person to whom the 1st and 2nd Defendant wrongfully allocated the Plaintiffs Title over Plot 90, Sector Centre ‘A’ Cadastral Zone B15 earlier known as Plot CD 39, Sector Centre ‘A’ Cadastral Zone B15, without any lawful justification at all.“

In the statement of claim she challenged the allocation of the right of occupancy to plot 90,

Sector Centre A, Cadastral Zone B15 to the 3rd respondent on the ground that the plot had already earlier been allocated to her and her right had not been revoked. The statement of claim did not make the juristic standing of the 3rd respondent an issue. By bringing the suit against the 3rd defendant in its name and describing it as a person to whom the disputed land was allocated, the plaintiff assert that it can be sued and is a party to the suit. The appellant’s complain in ground 1 of this appeal and issue 1 derived therefrom is not that the 3rd respondent is not a legal personae, but that the trial Court should not have awarded costs in its favour because its legal personality was not proved.

Learned Counsel for the appellant argued that “for an entity joined as a defendant in an action to be awarded any relief whatsoever in the final judgment such as an award of cost flowing from a suit in respect of land, the law requires such an entity to prove its juristic standing by tendering its certificate of incorporation”. It is difficult to conceive how the plaintiff who made an entity a defendant to her suit and described it as a person,

can on appeal validly and competently argue that the same defendant is incapable of enjoying award of costs in the suit as it has not be proved that it is a juristic person. This amounts to approbating and reprobating on the same point. The law does not allow a party in an appeal to take a position inconsistent with the position he or she took at the trial on a point. The Supreme Court in Suberu V State (2010) LPELR- 3120 (SC) and Osuji v Ekeocha (2009) LPELR- 2816 (SC) and in a long line of other cases restated that parties must be consistent in their cases at the trial and on appeal and should not approbate and reprobate on the same issue.

Since the parties did not join issue on the juristic personality of the 3rd defendant in their pleadings, it did not arise for trial. An issue of fact is joined on the pleadings when a party’s pleading of that fact is denied by the pleading of the adverse party. As held by the Supreme Court in Ajide V Kelani (1985) 3 NWLR (Pt.12) 248 @ 251 that “an issue or question is irrelevant if it does not arise from the pleadings. An issue is said to be joined when one party asserts the existence or non existence of a fact and the other party asserts the contrary by denying

the existence or non existence of that fact”. See also Abdul V Garba (2010) LPELR – 9132 (CA). There was no need to prove it as it was not in dispute. It is settled law that issues of fact that require proof are issues that are on trial because the parties have in their pleadings joined issues on them. See ACB PLC & Anor V Emostrade Ltd (2002) 4 SC (Pt.11) 1.

In the light of the foregoing, issue No. (a) is resolved in favour of the 3rd respondent.

Let me now consider issue no. (b) which complain against the holding of the trial Court that exhibit P3 is not a valid grant of plot CD39, Cadastral Zone B15 of Sector Centre A, Abuja therein by the 1st and 2nd defendants to the plaintiff.

To prove her assertion that the 1st defendant allocated her plot CD39, Cadastral Zone B15 of Sector Centre A, Abuja to replace plot LD3 in Guabe Ext. District earlier allocated to her on 7-4-2003, the plaintiff tendered exhibit P3 which she said was issued to her by 1st and 2nd defendants conveying the grant of plot CD39 as a replacement of the withdrawn plot LD3 in Guabe Ext. District. The 1st and 2nd Defendants whom the plaintiff claimed granted her

plot CD39 and issued her exhibit P3, denied making exhibit P3 and denied granting her Plot CD39 Cadastral Zone B15 Sector Centre A and rather admitted having granted her plot LD3 in Guabe Ext. District without more.

The 1st and 2nd defendants also denied replacing plot LD3 in Guabe Ext. District with Plot CD39 or any other plot and that they could not have allocated a plot measuring 4.0 hectares to the plaintiff for residential development in place of a plot measuring 1,500 sq metres as that has never been the policy of the 1st and 2nd defendants. The exact text of the testimony of DW1 on behalf of the 1st and 2nd defendants, contained in paragraphs 4 to 10 and 17 of his witness statement on oath deposed to on 18-11-2015 reads thusly-
“4. That the Plaintiff applied for a residential plot of land, which resulted in her being allocated plot LD 3 within Gaube Ext. District for residential development, as was indicated in her offer letter date 7/4/03 the offer letter shall be relied upon during trial.
5. That the document dated 25/4/03 which the plaintiff claims is an offer letter did not emanate from the 1st and 2nd Defendants, as there was

no record of processing for the purported replacement.
6. That the 1st and 2nd Defendants could not have allocated a plot measuring 4.0 hectares to the plaintiff (an individual) for residential development, in place of a plot measuring 1,500 sq.ms. As that has never been the policy of the 1st and 2nd Defendants.
7. That the 1st and 2nd Defendants did not at any point in time re-design any plot CD 39 Cadastral Zone B15, Sector Centre A, Abuja to Plot 90 Cadastral Zone B15 Sector Centre A, Abuja. Plot 90 Cadastral Zone B15 Sector Centre A is not the same as CD 39 Cadastral Zone B15, Section Centre A. Plot 90 is measuring about 5573.03m2 and is designated for Commercial purpose, while the purported CD 39 is measuring 4 hectares and is residential, that there is no residential plot in Sector Centre A Cadastral Zone B15 District.
8. That the Plaintiff did not attach any offer letter in proof of her purported title to plot CD 39 Sector Centre A, Cadastral Zone B15 Abuja, the document the plaintiff exhibited is not the regular offer letter issued to allottees by the 1st and 2nd Defendants. A typical offer letter from the 1st and 2nd Defendants to

allottees is the one dated 7/4/03 which was issued to the Plaintiff in respect of plot LD 3 Gaube Ext. District, Abuja
9. That the 1st and 2nd Defendants never forwarded any acceptance letter to the plaintiff to sign concerning the said plot CD 39 sector centre A, neither did they issue a site plan to the plaintiff in respect of the said plot, to show that the plot CD 39 sector centre A had been re-designed to plot 90 sector centre A. Meanwhile the plaintiff has not attached any document from the 1st and 2nd Defendants to show that the Plot CD 39 sector Centre A was re-designed to plot 90 sector centre A.
10. That the 1st and 2nd Defendants did not issue any bill to the plaintiff in respect of plot 90 sector Centre A.
17. That Sector Centre A is designated as a Zonal Business District servicing adjoining District, therefore no residential plot were provided, other allocation apart from commercial purpose is questionable.“

The trial Court in its judgment determined the issue of the validity of the grant in exhibit P3 thusly- “The Plaintiff has traced her title to a letter titled “Re: Application for Statutory Right of

Occupancy Within the Federal Capital Territory, Abuja” dated 25/4/03 (Exhibit P3) to the effect that “the Hon. Administrator of the Federal Capital Territory has given approval to the allocation of Plot No. CD 39 within sector Centre ‘A’ to you for Residential Development” and that “the plot measuring 4.0 HA square metres is a replacement of previous allocation of plot No. LD 3 within Gaube Ext. District which has been withdrawn due to allotee’s preference”. It cannot escape notice that Exhibit P3 did not convey the approval of the Honourable Minister of FCT (1st Defendant) but that of the “Hon. Administrator of the Federal Capital Territory”, whereas there is uncontradicted evidence before me that Engr. Abba Gana was the incumbent Honourable Minister of FCT as at April 2003 when Exhibit P3 was made. This being so, the Defendants’ insistence that Exhibit P3 is not a typical offer letter issued by 1st and 2nd Defendants cannot be lightly wished away. It equally seems to me farfetched that the Plaintiff who applied for a residential land and was granted Plot LD3 Gaube Extension District measuring

1,5000m2 would be given a replacement measuring 4.0 hectares for a residential development in Sector Centre A which is a purely commercial district, only for her to insist that these 4.0 hectares were ‘tremendously reduced’ to 5573.035 m2 as shown in the site plan (exhibit P7) for Plot 90 Sector Centre A which is a commercial plot as a result of a purported redesign and renumbering of plots in the said Sector Centre A without any official communication to that effect. I therefore find it difficult in the extreme to accept that Exhibit P3 constitutes a valid grant made to the Plaintiff by the 1st Defendant who is the legal custodian of all lands comprised in the Federal Capital Territory. See Madu v. Madu supra.
The Plaintiff has also relied on Exhibit P7 dated 28/8/02, which is a site plan in respect of plot 90 Sector Centre A showing her name and file number, as well as a “Right of Occupancy Rent and Fees Bill” dated 12/9/03 (Exhibit P6) said to have been issued by the 1st and 2nd defendants. The snags however is that title to land is not established by demand notices, payments receipts or even site/survey plans. It was held in

ITA V. ITA (2013) LPELR – 22007 (CA) that a survey plan is not a document of title and cannot be relied upon as proof of title to land. The purpose for tendering a survey or site plan is not to prove title but merely to demonstrate with reasonable certainty the identity and extent of the land claimed; a plan that is properly oriented, drawn to scale, accurate, reflecting all the features of the land and showing clearly the boundaries. See OWIE V. IGHIWI (2005) 3 MJSC 82 and OYEFESO V. COKER (1999) 1 NWLR (PT 588) 654. I cannot therefore see my way clear that the documents relied upon by the Plaintiff in proof of her title have the legal effect she seeks to fix on them.
I have agonised hereinbefore that is difficult in the extreme to accept that Exhibit P3 is a valid grant made to the Plaintiff by the 1st and 2nd Defendants. But even if it assumed arguendo that Exhibit P3 is a valid grant, it occurs to me that Exhibit P3 makes no mention of the disputed plot 90 Sector Centre A. Rather, what Exhibit P3 says is that “the Hon. Administrator of the Federal Capital Territory has given approval to the allocation of Plot No. CD 39 within Sector

Centre A to you for Residential Development”. The plaintiff has alleged that Sector Centre A was redesigned by the 1st and 2nd Defendants who equally renumbered Plot CD 39 as Plot 90. Indeed, the reliefs sought by the Plaintiff (which are reproduced hereinbefore) assume or take for granted that Plot CD 39 Sector Centre A, Cadastral Zone B15 is the same as Plot No. 90 Sector Centre A, Cadastral Zone B15. But the Defendants have challenged that assumption and there is a sharp divergence as to whether Plot CD 39 Sector Centre A, Cadastral Zone B15, Abuja was redesigned and/or renumbered by the 1st and 2nd Defendants as Plot 90 sector Centre A, Cadastral Zone B15, Abuja as alleged by the Plaintiff. whereas the Plaintiff insists on the one hand that Plot CD 39 was redesigned and /or renumbered as Plot 90, the Defendants maintain on the other hand that there was no such redesign or renumbering of Plots in Sector Centre A. The point has already been made that the burden of proof rests upon he who affirms but not on he who denies since by the nature of things he who denies a fact cannot produce any proof of that fact. See AROMOLARAN V. KUPOLUYI supra, ARASE v. ARASE supra,

ELEMO v. OMOLADE supra and OSAWARU v. Ezeiruka SUPRA. Since it is the Plaintiff who is asserting that the plots were redesigned and/or renumbered whilst the Defendants merely denied that this ever happened, the burden of proving this fact rests squarely on the shoulders of the Plaintiff. Did she succeed in discharging this burden? I do not think so.
The PW1 (Magnus Onwukwe) stated under cross examination that there was no official communication showing that Plot CD39 was renumbered as Plot 90 but the site plan (Exhibit P7) as well as information derived from an unnamed Desk Officer (which he did not confirm from the 1st and 2nd Defendants) led him to conclude that Plot CD39 was renumbered as Plot 90. It goes without saying that the information allegedly given by that unnamed desk officer is bereft of probative value or forensic utility. As examination of the site plan (Exhibit P7) reveals that the words “Right of Occupancy No. FCT/ABU/NG.3469 Land granted to Amina Alhassan” appear at the top thereof, but there is no indication whatsoever that Plot 90 was previously known as Plot CD 39. Both DW1 and DW2 maintained that Sector

Centre A has never been redesigned nor is Plot 90 a renumbering of Plot CD 39 as alleged by the Plaintiff or at all. The DW1 was emphatic that no site plan showing that the disputed land was redesigned as Plot 90 was issued by 1st and 2nd Defendants and the Plaintiff did not produce any such document; whilst the DW2 insisted that Sector Centre A (which serves Katampe, Kado, Mabushi and JAHI Districts) has never been redesigned to the best of his knowledge, and that no such history exists. Neither DW1 nor DW2 was shaken or discredited under cross examination. In a scenario such as the present, it does not seem to me that the Plaintiff has substantiated her assertion that Sector Centre A was in fact redesigned and/or that Plot CD 39 was renumbered as Plot 90.
The plaintiff tendered and relied on Exhibit P9 a survey report prepared by PW2 (Sunday Olarenwaju Ishola) who is a licensed surveyor. PW2 testified that he carried out a detailed survey on 13/4/15 and prepared Exhibit P9 which shows that Plot CD 39 Sector Centre A, Cadastral Zone B15 is the same as renumbered Plot 90 Sector Centre A Cadastral Zone B15 Sector Centre A. However, he conceded under cross

examination that the data he worked with in preparing Exhibit P9 was supplied by F.M. Oduma, Esq. of counsel for the Plaintiff, and that he nether requested nor obtained any data from FCDA (2nd Defendant). PW2 equally stated under cross examination that he neither applied to the 1st and 2nd Defendants for a soft copy of the Abuja Master Plan nor did they authenticate the copy of the Abuja Master Plan with which he worked; and that the appendices annexed to his survey report (Exhibit P9) were also not presented to the FCDA for authentication in order to ascertain whether they are in sync with official records. Crucially, PW2 conceded that confirmation as to whether any plot number has been changed or renumbered could be obtained from AGIS, and that he was not given any document showing that the disputed plot was either redesigned or renumbered.
The evidence of PW2 discloses that he carried out ‘detailed survey’ on 13/4/15, which implies that Exhibit P9 was made during the pendency of this suit filed on 31/3/14. Binding case law donates the proposition that a survey plan or report prepared by a licensed surveyor when legal proceedings are either

pending or anticipated is not caught by the provisions of S.83(3) of the Evidence Act 2011. The Courts have taken a stance that a surveyor, like any expert in any other specialised field of knowledge, is not an “interested person” within the meaning and intendment of the section so as to render inadmissible a survey plan or report made by him during the pendency of an action. See PETERSIDE & ORS V. WABARA & ORS (2010) LPELR – 4847 (CA). The rationale for this is that such an expert has no personal purpose to serve nor is he ordinarily under any temptation to depart from the truth as he sees it from his professional perspective and experience. See PETER OKONKWO & ORS v. BERNARD OKONKWO & ORS (2004) 5 NWLR (PT. 865) 87 at 126 [per Olagunju, JCA] and GBADAMOSI v KABO TRAVELS [2000] 8 NWLR (PT. 668) 243. There is therefore no anxiety as far as the admissibility of the survey report [Exhibit P9] prepared by PW2 is concerned. But the point to underscore is that the admissibility of a document is one thing, whilst the evidential value or forensic utility of that document is a different kettle of fish. See OKONJI v NJOKANMA [1999] 14 NWLR

(PT. 638) 250, AKANIWON v NSIRIM [1997] 9 NWLR (PT. 520) 255, DALEK NIGERIA LIMITED v OMPADEC [2007] NWLR (PT. 1033) 402 and CHIME v EZEA [2009] 3 NWLR (PT. 1125) 263 at 352. Now, Exhibit P7 is a site plan showing the dimensions, size, beacon numbers and other features of Plot 90 Sector Centre A measuring approximately 5573.035 m2. The alleged ‘replacement allocation’ evidenced by Exhibit P3 is in respect of Plot No. CD 39 within Sector Centre A measuring 4.0 hectares. No coordinates or beacon numbers of Plot CD 39 are stated in Exhibit P3, and the Plaintiff did not produce in evidence any site plan showing the features of Plot No. CD 39 prior to the alleged redesign or renumbering. The PW2 conceded under cross examination that he prepared Exhibit P9 with data supplied by F. M. Oduma, Esq. of counsel for the Plaintiff, and that he did not obtain any data from the 1st and 2nd Defendants. Annexed to Exhibit P9 is an unnumbered page of the original statement of claim wherein the Plaintiff pleaded the beacon numbers and/or coordinates contained in Exhibit P7 said to have been issued by the 1st and 2nd Defendants and showing her name and file number.

There is no mention of Plot CD39 in Exhibit P7, and the beacon numbers pleaded by the Plaintiff relate to Plot 90. In the absence of any site plan or any other document showing the coordinates, beacon numbers or other boundary features of Plot CD 39 said to have been granted to the Plaintiff as a replacement for Plot LD3 Gaube Extension District earlier allocated to her, neither the fabled wisdom of Solomon nor the clairvoyance of Nostradamus is required to appreciate that PW2 merely conveniently worked with the beacon numbers of Plot 90 [as pleaded by the Plaintiff in the original statement of claim annexed to Exhibit P9] without more in arriving at the conclusion that Plot CD 39 is the same as Plot 90. It is contended on behalf of the Plaintiff that the PW2 is a licensed surveyor eminently qualified to give expert opinion evidence in the manner contained in his survey report [Exhibit P9]; and that in the absence of clear evidence to the contrary, the Defendants who neither discredited the PW2 under cross examination nor called another qualified licensed surveyor to contradict him cannot seek to impugn the credible, cogent and reliable findings and

conclusions in Exhibit P9 regarding the description, identity, location, size and renumbering/renaming of Plot CD 39, Sector Centre A, Cadastral Zone B15, Abuja as Plot 90, Sector Centre’ A, Cadastral Zone B15, Abuja. The Court was urged to accept and act upon his evidence as the opinion of a disinterested expert called to assist the Court in its quest for truth in that specialised area of human knowledge, citing SEISMOGRAPH SERVICES LTD v BENEDICT ONOKPASA (1972) 4 SC 110 and the decision of the Court of Appeal (Abuja Division) in AL-BRAIYAH ALHAJI JIBRIN BALA v INTERCITY BANK PLC [Suit No. CA/A/58/M/06 delivered on 18/2/09, unreported]. The law, as I have always understood it, is that where the Court is afforded the opportunity of an expert evidence on a matter pleaded and on which issues are joined, but the expert evidence is uncontradicted either due to failure to cross-examine the expert or his credibility remains untainted after cross examination due to failure to elicit any evidence adverse to his expert opinion, the Court ought to accept his evidence. See ANTHONY OYAKHIRE v GEORGE OBASEKI & ORS [1986] 1 NWLR (PT. 19) 715 at 736 and CHUKWU CONST. CO. LTD v UWECHIA [2000] 1 NWLR (PT.643) 93.

But where an expert opinion, though uncontradicted, is ether woolly or manifestly unbelievable that no reasonable tribunal ought to act on it, or there is relevant and credible evidence before the Court showing that the evidence of the expert is not or cannot be true, the Court is at liberty to discountenance or reject such unchallenged expert evidence. See ELF (NIG.) LTD v SILLO [1994] 6 NWLR (PT. 350) 258]. There is nothing in law or practice which can compel a trial Court to admit or act upon unreasonable and illogical evidence no matter the qualification of the expert who gave the evidence. See ALADU v STATE [1998] 8 NWLR (PT. 563) 618. As stated hereinbefore, since there is no site plan or other document showing the coordinates, beacon numbers or other boundary features of Plot CD 39 Sector Centre A and he PW2 merely worked with the beacon numbers contained in the site plan of Plot 90 [Exhibit P7] without more, the survey report [Exhibit P9] produced by PW2 is patently and fundamentally flawed for being premised on a false foundation, and I find myself unable to accept and rely on it as basis for finding that

Plot 90 Sector Centre A is the same as Plot No. CD 39 Sector Centre A allegedly granted to the Plaintiff in lieu of Plot LD3 Gaube Extension District as urged upon by learned counsel for the Plaintiff.
What is more, the PW1 [Magnus Onwukwe] testified that he submitted the Plaintiff’s title documents to the 1st and 2nd Defendants for recertification and an Acknowledgement dated 16/8/08 [Exhibit P4] was issued to him. It occurs to me that even though the Plaintiff’s title documents were submitted for recertification in 2008 [as acknowledged by Exhibit P4] several years after Exhibit P7 [site plan] and Exhibit P6 [Right of Occupancy Fees and Rent Bill] relating to Plot 90 were allegedly issued to her on 28/8/03 and 12/9/03 respectively, Exhibit P4 merely talks about Plot CD 39 without making even a passing reference to Plot 90. The question tugging vigorously at the back of my mind is why there is no mention of Plot 90 in Exhibit P4 if the Plaintiff’s assertion that Plot CD 39 was redesigned and renumbered as Plot 90 as far back as 2003 is anything to go by. I reckon therefore that if there was in fact any redesign or renumbering of Plot

CD 39 as Plot 90 in 2003 as the Plaintiff would like us to believe, this would have been captured or reflected in the recertification acknowledgment [Exhibit P4] issued by the 1st and 2nd Defendants to the Plaintiff in 2008. Unfortunately, that is not the case and the conclusion is inescapable that the Plaintiff failed to demonstrate on a balance of probabilities that the disputed Plot 90 Sector Centre A is the same as Plot CD 39 Sector Centre A allegedly granted to her in lieu of Plot LD3 Gaube Extension District.“

Learned counsel for the appellant has argued that Section 13(3)(b) of the Federal Capital Territory Act LFN 2004 recognises that the 1st defendant also goes by the description of “Administrator of the Federal Capital Territory” and that the functions and powers conferred on the said Administrator are the same ones exercised by the 1st respondent until any such time that a law is enacted by the National Assembly changing the appellation of the 1st defendant, that the title “Honourable Administrator of the Federal Capital Territory” in exhibit P3 does not render it void, that the title is known to law by virtue of

Section 13(3)(b) of the Federal Capital Territory Act.

Learned Counsel for the 1st and 2nd respondents argued that Exhibit P3 was totally flawed as it does not carry the weight it ought to as there were overwhelming and uncontradicted evidence that it did not convey the approval of the Honourable Minister of Federal Capital Territory as there was an incumbent Minister, Engr. Abba Gana as at April 2003 the time Exhibit P3 was purportedly issued, which the Court was right in taking judicial notice of.

Learned Counsel for the 3rd respondent made arguments similar to that of the 1st and 2nd respondents on the point. So there is no need restating them.

Let me now determine the merits of the above arguments of all sides.

The evidence elicited by the 1st and 2nd defendants through the DW1 on whether exhibit P3 is their usual letter of offer or grant of land and emanated from them is inconsistent. DW1 in his testimony in examination in chief reproduced in pages 9-13 of this judgment stated that exhibit P3 is not their regular or typical letter of offer or grant of plot of land, that it did not emanate from them and that they did not allocate plot

CD39 to the plaintiff.

Under cross-examination, DW1 testified that exhibit P3 is their usual letter of offer or grant and that since the plaintiff submitted exhibit P3 for recertification and re-issuance of the certificate of occupancy, they have not written to her to say that the letter of offer was not from them and that it is still undergoing verification. The exact text of the cross-examination and his answers read thusly-
“Q: Take a look at Exh. P3. Is that the usual offer letter issued by the 1st and 2nd Defendants?
A: You are right.
Q: The Plaintiff submitted right of occupancy over plot CD 39 for recertification?
A: Yes.
Q: Have you written to him to say the offer was not from you?
A: No, my lord. It is still undergoing further verification.“

The effect of this contradiction is that the DW1’s testimony in examination in chief that exhibit P3 is not their usual or typical letter of offer or grant and that it did not emanate from them is cancelled out and rendered unreliable by his testimony under cross-examination that it is the usual letter of offer or grant of the 1st and 2nd defendants and

that they did not write to inform her that it did not come from them over 6 years after they received it for recertification and re-issuance. The law is settled that a Court cannot choose between the contradicting versions of evidence on a point, which to believe or which to disbelieve and which to rely on or which not to rely on and it must disregard the two versions and treat them as unreliable. See Boy Muka V State (1976) LPELR-1924 (SC).

As it is the 1st and 2nd defendants failed to adduce evidence to prove the averments in paragraphs 7 and 11 of their statement of defence that exhibit P3 is not their usual or typical letter of offer or of grant of land and that it did not emanate from them.

It is clear from exhibit P4 that exhibit P3 was submitted to the 1st and 2nd defendants for recertification and re-issuance on 16-8-2008. The 1st and 2nd defendants did not write to the plaintiff to inform her that the letter of offer of plot CD 39 submitted to them for recertification and reissuance is not from them. The 1st and 2nd defendants remained silent and rather raised the issue in their statement of defence filed in the suit that commenced over 6

years after the said letter of offer was submitted to them for recertification and reissuance. They had a legal duty to have promptly notified the plaintiff that exhibit P3 is not from them. Having failed to do so for over six years before the commencement of the suit leading to this appeal, their assertions in paragraphs 7 and 11 of their statement of defence in the said suit that it is not their letter can reasonably be regarded as afterthoughts. They cannot now be heard to validly contend that exhibit P3 is not from them.

In any case, they have not disowned the signatory of exhibit P3, Mallam M.S.U Kalgo, Director of Land Admin and Resettlement, whose names and official position is clearly written on it and bears his signature thereon indicating that he signed same on behalf of the 1st defendant. They did not deny that Mallam M.S.U Kalgo was authorised by the 1st defendant to sign exhibit P3 on his behalf and did not assert that the signature is false. Even exhibit P2 that the 1st and 2nd defendants admitted is their regular and typical letter of offer or grant is also signed for the 1st defendant by the same Mallam M.S.U Kalgo, Director of Land Admin

and Resettlement. The 1st and 2nd defendants did not call him as a witness to testify concerning whether he signed and issued exhibit P3 or not. DW1, an Assistant Chief Town Planning Officer with the Land Administration Department of the 1st and 2nd defendants was cross-examined about the authenticity of exhibit P3. He clearly refused to say anything concerning the signature on exhibit P3 and rather enumerated other factors that can be used to ascertain the authenticity of the offer. The exact text of his cross examination and his answers read thusly-
“Q: Since you were not the person who signed Exh. P3, I will be correct to say you are not in any position to deny its authenticity?
A: It is not only signature we use to determine authenticity of an offer letter.
Q: What are these other things you use to ascertain authenticity of an offer letter?
A: The purported letter states that the offer was granted by the Hon. Administrator in 2003, where there was a Minister of FCT in office at the time. Also, we do not usually grant replacements due to allottee preference; and where replacement is done, a new offer letter is given but no new

offer was given in this case.”

The 1st defendant is correctly described as “Honourable Minister Federal Capital Territory (FCT)” at the foot of exhibit P3 as the authority on whose behalf the Director of Land Administration and Resettlement signed and issued it. It is obvious from the whole tenor of Exhibit P3 that the Director of Land Administration and Resettlement that signed the letter for the Honourable Minister Federal Capital Territory (FCT) wrongly described the Honourable Minister Federal Capital Territory (FCT) by whose authority Exhibit P3 was issued as “Honourable Administrator of the Federal Capital Territory” in the top paragraph of the letter. It is obviously an error of the Director of Land Administration and Resettlement who signed and issued the letter for the Honourable Minister of the Federal Capital Territory. The said wrong description of the Honourable Minister of the Federal Capital Territory by a name or title descriptive of his function or responsibility did not affect the validity of the letter which is signed and issued on behalf of the Honourable Minister properly described. The letter conveys the

approval of the Honourable Minister on whose behalf it is signed and issued. It is the signature that gives it effect. Provided it is signed on behalf of the Honourable Minister of Federal Capital Territory by the Director of Land Administration and Resettlement, any error in the body of the letter conveying the Honourable Minister’s approval of the grant has no effect on the validity of the grant unless the Minister expressly states that he did not authorise the said Director to sign and issue the grant on his behalf or the said Director expressly states that he did not issue the letter and that the signature thereon purporting to be his own, is not his signature.

The inappropriateness of the grant of 4 hectares of land in Plot CD39 to replace 1,500m2 of land in Plot LD3 Gaube Ext. District earlier granted the plaintiff, and the inappropriateness of the grant of 4 hectares of land for residential development in a commercial district, has nothing to do with the validity of the grant in exhibit P3 made by the Honourable Minister of the Federal Capital Territory.

In the light of the foregoing, I hold that the decision of the trial Court that

exhibit P3 is not a valid grant is not correct.

Issue no. b) is resolved in favour of the appellant.

I will now consider issues c, d, e and f together as they all deal with the central question of whether the trial Court was right when it held that the plaintiff failed to prove that plot CD 39, Sector Centre A, Cadastral Zone B15 Abuja was redesigned, renumbered and renamed Plot 90, Sector Centre A, Cadastral Zone B15, Abuja.

The plaintiff’s case in her pleading and evidence is that on 7-4-2003, the 1st defendant by exhibit P2, letter of grant dated 7-4-2003 allocated her the land comprised in plot No. LD3 in Guabe Ext. District measuring about 1,500m2, that upon her application for a replacement of that plot, by a letter of grant dated 25-4-2003 (exhibit P3) the 1st defendant allocated her plot No. CD39, Sector Centre A, Cadastral Zone B15, Abuja measuring 40 hectares in replacement of Plot No. LD3 in Guabe Ext. District, that the letter of 25-4-2003 (exhibit P3) states expressly that the said allocation of Plot LD3 in Guabe Ext. District was withdrawn, that sometime in August, 2003, she was issued with a site plan in respect of her

Right of Occupancy wherein the size was tremendously reduced to 5573.035 square meters and the Plot Number changed to plot number 90 Sector Centre A cadastral Zone B15. When she inquired about the change in size and in number, she was told by the agents of the first defendant particularly by the officers of the survey department that the Plot number had changed, and that 90 is the new Plot number for Plot CD 39, that the site plan (exhibit p 7) is dated 28th August 2003 and is signed by different officers including the director of survey, that she was given a right of occupancy bill dated 12-9-2003 (exhibit p.6), that sometime in the Month of March 2013, while the Plaintiff’s Solicitor was at the 1st and 2nd Defendant agency, the Abuja Geographic Information System (AGIS) to collect the plaintiff’s ground rent bill to update payments, the Plaintiff’s Solicitor discovered that her Plot has been purportedly re-allocated to a 3rd party who is now the 3rd Defendant on 14/01/2010 on File Number MISC 84284 by the 1st and 2nd Defendants, that she was never at any time informed of any revocation, neither did she receive any Letter of Revocation from

the Defendants revoking her Title to Plot No.CD 39 renumbered as Plot 90 Sector Centre ‘A’ Cadastral Zone B15, nor did she receive any Letter from the Defendants offering her any other Plot in the alternative, that all visits to 1st defendants agents to have them update plaintiffs title have prove abortive.

The 1st and 2nd defendants, who the plaintiff claim to be her source or root of title, apart from admitting that they allocated plot LD3 in Guabe Extension District denied allocating her plot CD 39 Sector Centre A, Cadastral Zone B15, Abuja, denied issuing exhibit P3 or any letter of offer or grant of the said plot CD 39. They also denied issuing exhibits P6 and P7 and denied redesigning and renumbering plot CD39 to Plot 90 Sector Centre A, Cadastral Zone B15 and denied that any of their staff informed plaintiff of such renumbering. They maintained that plot 90 Sector Centre A, Cadastral Zone B15 was allocated by them to the 3rd defendant and no other person.

The 3rd defendant’s case in her pleadings and evidence is that based on its application for a commercial plot of land, the 1st and 2nd defendants allocated its Plot 90,

Sector Centre A, Cadastral Zone B15 vide an offer letter dated 2nd February 2010 (exhibits D17A and D17B) that plot 90, Sector Centre a, Cadastral Zone B15 has no relationship with plot CD39, that plot 90 has never been redesigned or renumbered, that plot CD39 has never been redesigned and renumbered as plot 90 or any other plot, that the sum of N21,000.00 paid by the plaintiff as fee for application for allocation of land was for residential plot and not for commercial plot allocation, that it was rightly and validly allocated Plot 90 by the 1st and 2nd defendants.

It is glaring from the plaintiff’s pleading and evidence that the basis of her claim that the plot CD39 she claimed was allocated to her on 25-4-2003 by exhibit P3 was subsequently changed in size and number to Plot 90 is the site plan dated 28-8-2003 (exhibit P7) and the right of occupancy bill dated 12-9-2003 (exhibit 96) given to her and the verbal information she said she received from unnamed officers of the survey department that the plot number had changed to Plot 90 from Plot CD 39 when she inquired from them why the number and size of the plot in the site plan they gave to her

was different from the one allocated to her in exhibit P3. Her payment of the fees in exhibit P6 is acknowledged in exhibits P5A and P5B.

Exhibit P3 addressed to the plaintiff and dated 25-4-2003 conveys approval of the allocation of Plot CD39 within Sector Centre A to her for residential development. The plot measuring 4 hectares was a replacement of plot No. LD within Guabe Ext. District which was withdrawn due to her preference.

There is no evidence of any written notice or correspondence from the 1st and 2nd defendants stating that they have changed the size and number of the plot granted the plaintiff in exhibit P3. In the absence of such written notice or correspondence of such change, the plot granted to the plaintiff in exhibit P3 by the 1st and 2nd defendants remain the size and number described in exhibit P3. The assumption that the size and number of the plot granted by exhibit P3 has been changed to plot 90 because the site plan and right of occupancy bill issued to the plaintiff did not mention the plot CD39 granted in exhibit P3 and rather indicates a new size and name of plot has no factual and legal basis. It is obvious that the right

of occupancy bill (exhibit P6) and the site plan (exhibit P7) issued to the plaintiff following the grant of Plot CD39 in exhibit P3 to her did not mention plot CD39 granted by exhibit P3 to her. Even though they bear the same reference No. MFCT/LA/NO.3469 as in exhibit P3, they clearly refer to a different plot size and number and not the one granted the plaintiff in exhibit P3. Exhibits P6 and P7 did not state that the size and number of the plot granted the plaintiff in exhibit P3 has been changed from CD39 to 90 and from 4 hectares to 5573 square meters. Apart from having the same reference number as in exhibit P3, they did not refer to or mention plot CD39. There is no doubt that the said similarity of reference number creates the impression that they have some relationship with the grant of plot CD39 to the plaintiff in exhibit P3. In the absence of any expressed or manifest intention in them or any other document that the said plot number and size stated in them is to change or amend the number and size of the plot No. CD39 granted to her in exhibit P3, I think that the most reasonable inference that can be drawn from their reference to a plot number

and size different from that granted to the plaintiff in exhibit P3 is that the plot number and size in them were stated in error.

The plaintiff did not adduce any legally admissible evidence that establish the existence of any fact that justify her assumption that the plot number and size in exhibits P6 and P7 were meant to change or amend the number and size of the plot granted to the plaintiff in exhibit P3. Her testimony that she was informed by unnamed agents of the 1st defendant, particularly officers of the survey department, that the number and size of the Plot earlier granted her had been changed to the one stated in exhibits P6 and P7 is hearsay evidence as the said officials were not called to testify as witnesses. The testimony is generally legally inadmissible to prove the truth or correctness of the fact it alleges. See Sections 37 (a) and 38 of the Evidence Act 2011. In any case the 1st and 2nd defendants denied that any of their officials informed her so and stated that they did not at any point in time re-design or renumber plot CD39 to Plot 90 as the two plots are separate and distinct plots.

Her assumption that exhibits P6 and P7 changed

the number and size of the plot granted her in exhibit P3 is defeated by exhibit P4, acknowledgement of re-certification and re-issuance of Certification of Occupancy. This exhibit P4 support the inference that the plot number and size in exhibits P6 and P7 are errors. It is dated 16-8-2008 and states thusly-
“FILE: NG 11441
This is to acknowledge the receipt of original R-OF-O for AMINA ALHASSAN in respect of Plot Number CD 39 Cadastral Zone B15 of SECTOR CENTRE A and dated 07/10/2008. The old file number is NG 3469.“

The testimony of plaintiff’s first witness (PW1) in examination in chief contained in paragraph 15 of her witness statement on oath sworn on 22-4-2014 and adopted in open Court as his testimony on 4-2-2016 reads thusly-
“15. That following the 1st defendant’s call for Re-certification of Titles, the Plaintiff through me, her Solicitor submitted her Title Documents for Re-certification upon payment of the required statutory fees, upon the recertification of her Title Documents, I was issued with a Re-certification and Re-issuance of Certificate of Occupancy acknowledgment bearing a new File

Number. NG 11441. The Re-certification and Re-issuance of Certificate of Occupancy acknowledgment dated 16/08/2008 is hereby pleaded and I shall be relying upon it at the hearing of this suit.“

This deposition restates the facts pleaded in paragraph 13 of the statement of claim.

The plaintiff relied on and tendered exhibit P4 in evidence to show that she submitted her title documents to 1st and 2nd defendants for re-certification and re-issuance. It is clear from the face of exhibit P4 that it is her title documents to Plot CD 39 Cadastral Zone B15 of Sector Centre A that the plaintiff presented for re-certification and re-issuance on 16-8-2008. Exhibit P4 did not mention Plot 90.

It is noteworthy that the plaintiff presented her documents of title to plot CD39 on 16-8-2008, about five years after the dates on exhibits P6 and P7. So if exhibits P6 and P7 represent change in the number and size of the pot granted the plaintiff in exhibit P3 in 2003, the re-certification and re-issuance of title document would have been in the new plot number and not plot CD39. It is curious that the plaintiff that had submitted her documents of title to

plot CD39 for re-certification and re-issuance on 16-8-2008, filed this case at the trial Court on 31-3-2014 claiming that plot CD39 was changed in 2003 to plot 90 and claiming title to plot 90. Such a claim cannot be sustained in the face of exhibits P3 and P4.

Exhibit P9 prepared by a private licensed surveyor, PW2 at the instance of the plaintiff during the pendence of the suit at the trial Court to show the plot CD39 and Plot 90 are the same is based on data and information supplied to the said surveyor by Learned Counsel for the plaintiff. It is not derived from the official records of the 1st and 2nd defendants and was not presented to them for confirmation and authentication. It was made in line with the case presented by the plaintiff in her suit. This is clear from his cross-examination and his answers thusly –
“Q: You prepared this survey report?
A: Yes.
Q: Did you write to FCDA before you made the survey report?
A: No.
Q: Did you obtain any data from FCDA?
A: No, my lord.
Q: How did you obtain the data you worked with in preparing this survey report?
A: It was given by F. M. Oduma of

counsel.
OBIORA: That will be all for him.“

It is clearly hearsay evidence and is not admissible to prove the truth or correctness of the facts stated therein, which facts PW2 were given to him by F.M. Oduma of counsel that did not testify as a witness. This is so by virtue of Ss. 37 and 38 of the Evidence Act which provide that-
“37. Hearsay means a statement-
(a) Oral or written made otherwise than by a witness in a proceeding; or
(b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.“

The trial Court rightly held that it had no probative value. It is noteworthy that the plaintiff whose case is that the plot CD39 allocated to her on 25-4-2003 by exhibit P3 was changed in size and number to Plot 90 as described in exhibits P6 and P7, did not elicit evidence of the site plan of Plot CD 39 showing the

beacon numbers and other features or explain why she failed to do so. A juxtaposition of the site plan of the plot CD 39 granted to her in exhibit P3 with the site plan of Plot 90, would have shown the relationship between their beacon numbers to determine if Plot CD39 was truly redesigned and renumbered as plot 90. Exhibit P3 does not contain the beacon numbers of Plot CD39. The trial Court correctly held that the plaintiff failed to prove that plot CD39 was redesigned and renumbered as Plot 90.

Issues (c), (d), (e) and (f) are resolved in favour of the respondents.

On the whole, this appeal succeeds in part in respect of issue No. (b).

It is hereby adjudged that the grant of plot CD 39 Cadastral Zone 815, Sector Centre A, Abuja on 24-4-2003 in exhibit P3 is a valid grant. The decision of the trial Court that the plaintiff failed to prove that Plot CD 39 was redesigned and renumbered as Plot 90 Cadastral Zone B15, Sector Centre A, Abuja is upheld and affirmed.

The appellant shall pay costs of N400,000.00 to the 3rd respondent herein.

PETER OLABISI IGE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of

reading in advance the Judgment just delivered by my learned brother, EMMANUEL AKOMAYE AGIM, JCA and I am in complete agreement with the succinct and lucid resolution of all the issues distilled for determination in the Appeal.

It is trite that production of documents of title is one of the ways of proving title to land, however, it has conditions attached to it and a claimant must prove those conditions before the documents of title can inure the claimant a declaration of title. The position was settled in the case of ROMAINE V ROMAINE (1992) LPELR-2953(SC) wherein the apex Court held as follows:
“…One of the recognized ways of proving title to land is by production of a valid instrument of grant: See IDUNDUN V. OKUMAGBA (1976) 9-10 S.C. 227; PIARO V. TENALO (1976) 12 S.C. 31, P.37; NWADIKE V. IBEKWE (1987) 4 NWLR (pt.67) 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court

to inquire into some or all of a has been duly executed, stamped and registered; (iii) whether the grantor had the authority and capacity to make the grant; (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by the holder of the instrument.”

The documents of title tendered by the Appellant failed the test stated in the Judgment referenced above, consequently, the Appellant cannot be entitled to a declaration of title.

I join my learned brother to dismiss the appeal for lacking in merit. I also abide by the orders made in the leading Judgment.

Appearances:

J. ITODO, ESQ., with him, U. A. YAT, ESQ. For Appellant(s)

BERNICE OBIORE, ESQ., with him, MUBARAK O. ABDULAHI, ESQ. for the 1st and 2nd Respondents

CHIDI J. AKUNNAKWE, ESQ. for the 3rd Respondent For Respondent(s)