AMBO WUYAH v. JAMA’A LOCAL GOVERNMENT, KAFANCHAN (2011)

AMBO WUYAH v. JAMA’A LOCAL GOVERNMENT, KAFANCHAN

(2011)LCN/4606(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 7th day of June, 2011

CA/K/7/2007

RATIO

CAPACITY TO SUE: WHETHER A LOCAL GOVERNMENT AREAS CAN SUE AND BE SUED IN ITS NAME

I have to consider this appeal by reminding myself that the defendant/Respondent is one of the Local Government Areas/Councils recognized by Section 3(6), second Column of part I of the First Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as amended. The defendant/Respondent is a Local Government Area in Kaduna State that can sue and be sued in her name. The defendant/Respondent, being a Constitutional creation, acts through staffs/officers who are human beings. PER JOSEPH TINE TUR, J.C.A

ADMITTED FACTS: WHETHER WHAT IS ADMITTED NEEDS FURTHER PROOF

What is admitted needs no further proof. See Section 75 of the Evidence Act, 1990; Andony vs Ayi II (2004) All FWLR (Pt.227) 444 at 482; Elendu vs Ekweoba (1995) 3 NWLR (Pt.386) 704 at 747. PER JOSEPH TINE TUR, J.C.A

CAPACITY TO SUE: WHETHER A LOCAL GOVERNMENT IS CAPABLE OF APPEARING, TESTIFYING, TENDERING DOCUMENTS AND CAN BE CROSS-EXAMINED WHEN SUED IN A COURT OF LAW

Where a Local Government is sued in a Court of law it is unreasonable or absurd to expect she will appear, testify, tender documents and be cross-examined. That is impossible. The Local Government has to be represented at the trial by any of her accredited staff or officers. Some that participated in a transaction on behalf of the Local Government might have died, resigned or retired etc, but Government is a continuity. PER JOSEPH TINE TUR, J.C.A

ADMISSIBILITY OF EVIDENCE: WHETHER THE ISSUE OF ADMISSIBILITY OF EVIDENCE IS DEPENDED ON ON WHETHER IT IS RELEVANT OR IRRELEVANT

…the issue of admissibility of oral or documentary evidence is dependent on whether it is relevant or irrelevant. To be relevant facts leading to the admissibility of a document must be pleaded. See Agunbiade vs Sasegbon (1968) NMLR 223 at 226 and ACB Ltd vs Alhaji Gwagwada (1994) 4 SCNJ (Pt.2) 268 at 277. Once a matter, be it oral or documentary evidence is relevant, it is admissible. The issue of proper custody or the weight to be attached to the evidence under Section 92(1) of the Evidence Act, 1990 is another matter. See Torti vs Ukpabi (1984) 1 SC 1 and Isibor vs The State (1970) 1 All NLR 248. The exception is if the evidence is excluded by Statute. See Sadau vs The State (1968) 1 All NLR 208 at 212. PER JOSEPH TINE TUR, J.C.A

ADMISSIBILITY OF EVIDENCE: WHETHER ADMISSIBILITY OF EVIDENCE IS GOVERNED BY THE PURPOSE FOR WHICH THE EVIDENCE IS SOUGHT TO BE ADMITTED

Furthermore, admissibility is governed by the purpose for which the evidence is sought to be admitted. See ACB Ltd Alhaji Gwagwada’s case supra at p.277. In Ishola vs UBN Ltd (2005) All FWLR (Pt 256) 1202 at 1213 paragraph “G” the Supreme Court held that:”The Court can only use a document properly admitted before it for the purpose intended by the parties as pleaded unless the attention of the Court is drawn by any of the parties before it to do so. And even in that case, the Court must invite all the parties before it to address it on the point before making a decision on it. ” Per Kalgo JSC. Furthermore, in Onochie vs Ikem (1989) 4 NWLR (Pt 116) 450 at 466 cited in Akinduro vs Alaya (2007) All FWLR (pt.381) 1653 at 1674 paragraph “D-E” it was held that: “It is settled law that a document inadmissible for a purpose may be admissible for another purpose. See Onochie vs Ikem (1989) 4 NWLR (Pt.116) 458 at 466 cited in Akinduro us Aloya All FWLR (Pt.381) 1653 at 1674 paragraph “D-E.” The purpose is usually determined by the pleadings which is notice of the case a party intends to canvass at the hearing. See Obmiami Bricks and Stones Ltd vs ACB (1992) 3 SCNJ 1 at 35; Uwegba vs Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 303 at 317. PER JOSEPH TINE TUR, J.C.A

HEARSAY EVIDENCE: WHETHER EVIDENCE OF A STATEMENT MADE TO A WITNESS BY A PERSON WHO IS NOT HIMSELF CALLED AS A WITNESS IS HEARSAY AND INADMISSIBLE

My humble view is that Dw1 could only produce Exhibits “1” and “2” from his custody. But not being their maker, nor did he participate in the negotiation and assessment of how much compensation would be paid to late John Ambo, his evidence is hearsay: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not he hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained. It is nor hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.” See Subramanian vs Public Prosecutor (1956) 1 WLR 965 at 969. PER JOSEPH TINE TUR, J.C.A

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria

Between

AMBO WUYAH – Appellant(s)

AND

JAMA’A LOCAL GOVERNMENT, KAFANCHAN – Respondent(s)

JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice David S. Wyom sitting at the High court of Justice Kalanchan, Kaduna state in Suit No.KDH/KAF/57/2002 delivered on the 21st day of September, 2005 wherein His Lordship dismissed the Appellant’s claim in its entirety.

Against this decision the Appellant filed Notice and grounds of Appeal on the 12th day of December, 2005.

FACTS

The Appellant was the plaintiff in Suit No. KDH/HAF/57/2002 viz Ambo Wuyah vs Jema’a Local Government Kafanchan. The Appellant commenced the suit by writ of Summons and a statement of claim dated 29th day of August, 2002. The Appellant claimed reliefs in paragraph 22(1)-(5) of the statement of claim. The defendant fired a statement of defence. Hearing commenced on the 16th day of February, 2004. The Appellant called three witnesses while the Respondent called only one. At the conclusion of the hearing the Honourable Judge called for written addresses. Thereafter his Lordship dismissed the appellant’s claims.

The Appellant’s case was that he derived title to the land from his in-law by name Mallam Sule Musa in 1953. By then it was virgin land. The appellant built on the land and continued to farm it, paragraph 5 of the statement of claim describes the boundaries/location of the land as follows:

“5. The Plaintiff further aver that the land which he farmed on measure 9.00 acres and is presently bounded on the North by the Express Road going from Gidan Waya to Jos on the west by Mai Jankia Audu on the East by the plot of land belonging to Mr. Daniel Anto and on the west by Mai Jankia Audu plot. ”

The appellant remained in possession, planting economic trees till 1958 when his father died hence he was asked to go home and occupy his father’s estate at Sabon Gida in the present Sanga Local Government Area of Kaduna State. The appellant averred that he divided the land into two parts and gave one part to Mr. Idze Bori and the other to Mr. Amwe Ajeni to hold as his customary tenants.

The appellant continued to receive annual rents from his customary tenants in form of yams and grains, when his son by name John Ambo grew up he took over possession from Mr. Amwe Ajeni, built and lived on the land till he died on 27-05-2002. His grand children are still on the land in dispute.

The land is now in Jama’a Local Government Area of Kaduna State. In January, 2002 he learnt that the defendant had entered the land, was laying same into plots and allocating to individuals hence this suit.

Respondent’s case before the lower Court is that she desired a parcel of land for the purpose of residential layouts. Her officials identified the land and the owner whom they approached through their Ward, Village and District Heads respectively. The disputed piece of land forms part of a larger parcel of land. All dealings on the land were done with the appellant’s late son John Ambo, who was in lawful possession through his father the Appellant. John Ambo did not object to the use of the land by the Respondent. As a result the Respondent constituted a team, which surveyed the land, assessed the compensation payable and accordingly paid John Ambo as the owner of the land. The deceased was present during the whole exercise. He signed and collected compensation on the portion of the land in dispute. The assessment report and the payment voucher for the compensation were tendered in evidence and admitted as Exhibits “1” and “2” respectively. Having heard evidence and listened to the addresses of Counsel His Lordship held at page 42 lines 3-24 to page 43 lines 1-5 of the printed record as follows:

“It is noteworthy that the plaintiff’s complaint is not the absence of acquisition: neither did he deny that his late son John Ambo did not receive compensation on the land. What I am able to deduce is that he should have been personally paid compensation.

I must state at this stage it is clearly shown that due process was followed in the acquisition of procedure from the initiation of same to its conclusion. By the above, I find and hold that there was a lawful and legal acquisition of the disputed subject matter by the defendant.

As to whether or not compensation was paid to the plaintiff there is the need to refer to the evidence and Exhibits before me. Dw1 in his evidence in chief stated that the plaintiff’s son late John Ambo represented his family a, through the exercise from the survey, assessment and payment of compensation. That the said John Ambo’s name and signature appeared as number 34 on both Exhibit “1” and “2”.The plaintiff in his evidence in chief stated that he gave the land in dispute to his son and undercross-examination, stated that he has no problems/complaint with his son management of and/or dealing in respect of the land.

The evidence before this court points unequivocally to the fact that compensation was paid to the plaintiff’s son who was in lawful procession of same and represented his family. The plaintiff cannot runaway from the actions of his lawful representative i.e. his son, late John Ambo, as same are binding on him. To hold otherwise, I think, will be tantamount to this court calling on the defendant to pay double compensation on the land to the Plaintiff.

Having held that there was lawful acquisition of the disputed land by the defendant and having also held that compensation was paid to the plaintiff through his late son John Ambo, I need not be labour myself as to whether the plaintiff has proved his ownership of the disputed piece of land. In the whole, the plaintiff’s claim is hereby dismissed in its entirety as totally lacking in merit.”

The Appellant formulated two issues for determination as follows:

“ISSUES FOR DETERMINATION: APPELLANT

(1) Whether or not, it was proper for the trial Court to rely on the evidence of DW1 to hold that the evidence before him points unequivocally to the fact that the compensation was paid to the plaintiff’s son who was in lawful possession of same and represented his family (grounds 3 and 4 grounds of Appeal).

(2) Whether the trial Court was right in holding that there was a lawful and legal acquisition of the Appellant’s land ground 1 and 2 grounds of Appeal).”

These issues are the same as those formulated by the Respondent to wit:

“ISSUES FOR DETERMINATION: RESPONDENT

(1) whether or not it was proper for the trial court to rely on the evidence of Dw1 to hold that the evidence before him points unequivocally to the fact that compensation was paid to the plaintiff’s son who was in lawful possession of same and represented his family (grounds 3 and 4 grounds of Appeal).

(2) Whether the trial Court was right in holding that there was a lawful and legal acquisition of Appellant’s land (grounds 1 and 2 grounds of appeal).”

ARGUMENTS: APPELLANT

ISSUE ONE

On issue one learned Counsel to the appellant contended that Dw1 present when compensation was effected hence his evidence was hearsay.

The learned trial Judge should not have relied on Exhibit “1”and “2” to arrive at the conclusion that upon the acquisition of the rand in dispute the defendant/Respondent paid compensation to John Ambo the late son of the appellant/plaintiff. Counsel argued that Dw1 could not rely on the signatures on Exhibits l and 2 to come to the conclusion that late John Ambo signed them since the same person signed other vouchers as well. Counsel cited Sunday Omonuju vs The state (1976) All NLR 301 at 303 and Armeb Transport Ltd vs Madam A. Tinuke Martins (1970) All NLR 27 at 31. It was argued that there was no proof that late John Ambo signed and collected compensation as claimed by the defendant/Respondent.

ISSUE TWO

Counsel submitted that the onus of proving that compensation had been paid was on the defendant/Respondent who did not dispute that title to the land in dispute vested in the appellant. Learned counsel referred to section 6(3) of the Land use Act, 1978 as showing that acquisition of the land was not for “public purpose”. That the provision had not being complied with’ counsel further submitted that it was never proved there was notice of revocation of the customary right of occupancy, citing Boniface Gwar vs S.O. Adole (2003) FWLR (Pt.176) 747 at 771 paragraph “A” and a host of other authorities. Besides, the defendant had the onus of proving that John Ambo signed Exhibits “1” and “2” as agent of the appellant. Reference was made to section 100 of the Evidence Act, 1990. Counsel contended that Exhibits “1” and “2” and the evidence of Dw1 once expunged from the record, there will be nothing to prove that John Ambo signed and collected the alleged compensation.

Counsel cited C.S.S Bookshop Ltd vs The Registered Trustees Muslim Community in Rivers State & Ors (2006) All FWLR (Pt.319) 819 at 855- 856 paragraph 164″ in support of the proposition that only revocation notice can state the reasons for the acquisition of the customary rights of occupancy of the appellant over the land in dispute. Counsel referred to the evidence of Pw2. It was argued on the authority of Foreign Finance Corporation vs Lagos State Development and Property Corporation (1991) 5 SCNJ 52 at79 that where the land is acquired for public purposes but is later used for private purposes the initial acquisition will be declared null and void. That the law must be strictly construed, citing Sule Adukwu & 4 Ors vs Commissioner for Works, Land and Transport Enugu State & 3 Ors (1997) 2 NWLR (pt.489) 88 at 598-599. The court was urged to allow the appeal and grant relief to the appellant.

RESPONDENT: ISSUE ONE

The Respondent’s learned Counsel referred to the unchallenged evidence of Dw1 regarding his credentials and status in the employ of the defendant/Respondent. That Dw1 was the Chief Survey Assistant whose schedule of duties included Surveys, assessment and keeping of record of files of all landed properties belonging to the Local Government. Counsel referred to Section 124 of the Evidence Act 1990 as showing that Exhibit “1” and “2” came from proper custody. The case of Sunday Omondu vs The State supra was distinguished on the grounds that the medical report in that case did not come from proper custody. That is not the situation in this appeal. Furthermore, Exhibits “1” and “2” formed part of public records of acts done by public officers of the Respondent in the discharge of their official duties, citing Sections 4(2), 39, 116 and 150(2) of the Evidence Act, 1990 and Nigerian Airforce vs James (2003) FWLR (Pt.143) 257 at 277 paragraph “F”. It was contended that the burden was on the appellant to disprove the authenticity of Exhibits “1” and “2”, that they were not signed by John Ambo, citing Bassey vs The State (2003) FWLR (Pt.164) 292 at 209-310.

ISSUE TWO

Learned Counsel contended that the acquisition of the land in dispute was not compulsory but voluntary through negotiation and payment of compensation. The argument of the learned Counsel to the appellant and the authorities cited did not therefore apply. Counsel drew the Court’s attention to the pleadings and the oral testimony of the parties/witnesses in Court to shorn, the purpose for which the land was acquired. That compensation must be paid in accordance with the provisions of Sections 7 and 28(3) of the Land Use Act, 1978, citing Elf Petroleum Nig. Ltd vs Umah (2006) All FWLR (pt.343) 1761 at 1781 paragraph “G-H”. Learned Counsel also referred to the evidence of the appellant and the confidence he had reposed in his late son in the manner he handled transactions involving the land in dispute, to show that this suit was brought mala fide. The Court was urged to dismiss the appeal.

On 25-01-2011 learned Counsel to the appellant filed a Reply Brief whose purpose was to show that the arguments or submissions of the learned Counsel to the Respondent did not apply to the facts of this case, citing Section 4(2), 116 and 150(1) and (2) of the Evidence Act, 1990- Counsel argued that the Respondent did not adduce sufficient evidence to shift the burden of proving that John Ambo did not sign Exhibits “1” and “2”, citing Abdul-Rahmin vs Commissioner of Police (1971) NMLR 87. That it was the party asserting who should prove, in this case, the respondent. It was also argued that the learned trial Judge should not have relied on Exhibits “1” and “2” since they were not tendered through their makers, citing Buhari vs Independent National Electoral Commission (INEC) & 4 Ors (2001) All FWLR (Pt-459) 419 at 546-547 paragraphs “G-C”. That no weight should be attached to the exhibits. Counsel referred to Section 91(2)of the Evidence Act, 1990 to once more urge the Court to allow this appeal.

They transact business for and on behalf of the defendant. Paragraphs 1-3 of the plaintiff’s statement of claim are as follows:

“1. The Plaintiff is a farmer resident at Sabon Gida in the present Sanga Local Government of Area of Kaduna state within the jurisdiction of the Honourable court.

2. The Defendant is a Local Government with its Headquarters at Kafanchan within the jurisdiction of this Honourable Court.

3. The Plaintiff’s claim is over the landed property lying and situate at Gidan Waya in Jama’a Local Government, Kaduna state within the jurisdiction of this Honourable court.”

This is admitted in paragraph I of the Respondent’s statement of Defence as follows:

“1. The defendant admit paragraph 1, 2, and 3 of the statement of claim.”

What is admitted needs no further proof. See Section 75 of the Evidence Act, 1990; Andony vs Ayi II (2004) All FWLR (Pt.227) 444 at 482; Elendu vs Ekweoba (1995) 3 NWLR (Pt.386) 704 at 747.

The general rule is that documents are to be tendered through their maker so they could be cross-examined. In Ojukwu vs Governor of Lagos State (1985) 2 NWLR (Pt.10) 806 Nnaemeka-Agu JCA (as he then was) held at page 818 that:

“Now as the writer of the above letter never testified or swore to the correctness of the contents it was inadmissible in evidence in view of Section 90(1)(a) and (b) of the Evidence Act … ”

Again in Agwuneme vs Eze (1990) 3 NWLR (Pt.137) 242 Onu JCA (as he then was) held at page 754 that:

” …It is settled law that documentary evidence can only be tendered through its maker. See Opolo vs The State (1977) 11 SC 6; Okparo vs Federal Republic of Nigeria (1977) 4 SC 53; see also Section 90(1)(a) of the Evidence Act.”

In Omega Bank Nig. Plc vs OBC Ltd (2005) 8 NWLR (Pt.928) 541 at 582 paragraphs “B” to page 583 paragraphs “A-B” Niki Tobi JSC explained the rationale as follows:

” …Let me take the issue of non-maker of the document tendering it. It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law; (1) The maker is dead (2) The maker can only be procured by involving the party in so much expenses that could he outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer question on it, the non-maker of it is not in such a position. In the latter situation, a Court of law will not attach any probative value to the document and a document that a Court does not attach any probative value is as good as the mere paper on which it is made. After all probative value is the root of admissibility of evidence. I should not be understood as saying that documentary evidence cannot be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker. See Igbodin vs Obianke (1976) 9-10 SC 179. After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document admitted are two different things. See Ayeni vs Dada (1978) 3 SC 35.

As a matter of law, I regard Exhibit “P6” as hearsay as it relates or affects Pw1 who tendered it. It could not have been hearsay if it was tendered by either of the two makers or writers. In Uwa Printers (Nig.) Limited vs Investment Trust Company Ltd (1988) 5 NWLR (Pt.92) 110, the trial Judge admitted Exhibit “29” the Auditor’s Report on profits the plaintiff would have earned for a certain period, without the input of the Federal Ministry of Justice. The Court of Appeal rejected the exhibit. On further appeal, the Supreme Court held that Exhibit “29” which was prepared by an expert was based on hearsay evidence reduced into writing as the projected figures of pupils of both primary and post primary schools for the years 1978/79 by the Federal Ministry of Education Lagos, us no one was called from the Ministry who was concerned in the production of the figures to prove the truth of those facts. Exhibit “29” was therefore inadmissible, the Supreme Court held in a majority decision.

I do not think I can reject exhibit “P6”. The case law will not allow me to do so. This is because Exhibit “P6″ is relevant in the circumstances of the case. That notwithstanding the case law allows me not to attach any probative value to it and that is what I do now. ”

That being the case the issue of admissibility of oral or documentary evidence is dependent on whether it is relevant or irrelevant. To be relevant facts leading to the admissibility of a document must be pleaded. See Agunbiade vs Sasegbon (1968) NMLR 223 at 226 and ACB Ltd vs Alhaji Gwagwada (1994) 4 SCNJ (Pt.2) 268 at 277. Once a matter, be it oral or documentary evidence is relevant, it is admissible. The issue of proper custody or the weight to be attached to the evidence under Section 92(1) of the Evidence Act, 1990 is another matter. See Torti vs Ukpabi (1984) 1 SC1 and Isibor vs The State (1970) 1 All NLR 248. The exception is if the evidence is excluded by Statute. See Sadau vs The State (1968) 1 All NLR 208 at 212.

Per Kalgo JSC.

Furthermore, in Onochie vs Ikem (1989) 4 NWLR (Pt 116) 450 at 466 cited in Akinduro vs Alaya (2007) All FWLR (pt.381) 1653 at 1674 paragraph “D-E” it was held that:

“It is settled law that a document inadmissible for a purpose may be admissible for another purpose. See Onochie vs Ikem (1989) 4 NWLR (Pt.116) 458 at 466 cited in Akinduro us Aloya All FWLR (Pt.381) 1653 at 1674 paragraph “D-E.”

The purpose is usually determined by the pleadings which is notice of the case a party intends to canvass at the hearing. See Obmiami Bricks and Stones Ltd vs ACB (1992) 3 SCNJ 1 at 35; Uwegba vs Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 303 at 317. The issue under consideration was the admissibility of Exhibit “1” and “2” to show that late John Ambo received compensation for the land and signed same. The printed record has the following entries at page 54 lines 20-26 and page 55 lines 1 -11:”I know late John Ambo as being the representative of the family of plaintiff. Late John Ambo is the son to the plaintiff. John Ambo collected compensation in respect of the acquired land on behalf of his father. I know he collected because in the assessment list and voucher he signed and collected compensation on behalf of his family. The assessment list and payment vouchers are with our Counsel. If I see the assessment list for payment of compensation I can identify it by the signature of the Zonal Land Officer and the Local Government Lands Officer. The payment voucher can be identified by the letter head of the defendant and the signature of Head of Works. These are the documents.

E. Andow: We seek to tender these documents in evidence.

I.M Ugwanyi: No objection

Court: Assessment for payment of compensation, Gidan Waya high residential layout LTPO/JMI numbers as pages 40 to 47 and the voucher dated 10th August, 1992 numbers 30 to 33 admitted und marked as Exhibit “1 ” and “2” respectively.”

From the entries reproduced above it becomes evident that at the time E. Andow Esq of Counsel to the defendant put in the payment vouchers dated 10-08-1992 learned Counsel representing the plaintiff/appellant namely, I.M. Ugwuanyi Esq did not object the learned trial judge had no option than to admit the vouchers which he marked as Exhibit “1” and “2” respectively. Secondly, Dw1 identified Exhibits “1” and “2” and the signatures of the Zonal and the Local Government Lands Officers. John Ambo’s name appeared on Exhibit “l” and Exhibit “2” as numbers 34 in each Exhibit. The total payment to the deceased was N2, 787.00. But at no time did Dw1 pretend to be a member of the assessment team nor that he participated in payment of compensation to those whose lands were acquired by the defendant. But of what probative value is the evidence of Dw1 and Exhibits “1” and “2”?

“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not he hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained. It is nor hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”

See Subramanian vs Public Prosecutor (1956) 1 WLR 965 at 969.

Exhibits “1” and “2” constitute hearsay evidence in documents. They should have been admitted through their makers. They were tendered to prove paragraph 6 of the Statement of Defence which reads thus:

“6. The defendant deny paragraph 20 of the statement of claim and the plaintiff is hereby put to the strictest proof thereof. In further answer to the averment, the defendant shall contend and say that compensation was duty paid to the plaintiff’s son Mr. John Ambo, who signed and collected same, sometimes in 1992. The list of beneficiaries and the assessment report for all of them showing their names and signatures and the payment voucher shall be relied upon and same are hereby pleaded. ”

See also Bosah vs British American Insurance Co. (1972) NMLR 298 and plethora of authorities already referred to in this judgment. The Zonal Land Officer, the Local Government Lands Officer and the Head of Works were signatories to Exhibits “1” and “2” yet they were not called to testify and be cross-examined to enable the learned trial Judge determine what weight to attach to the evidence. See Section 92(1) of the Evidence Act, 1990; Ayeni vs Dada (1978) 3 SC 35 at 61 and Attorney-General of Oyo State vs Fairlakes Hotels (1939) 12 SCNJ 1 at 20-21.

In my humble view Exhibit “1” and “2” together with the evidence of Dw1 has adversely affected the decision of the learned trial Judge. See Section 227(1) of the Evidence Act, 1990. The learned trial Judge erred to have attached any weight to them so as to find in favour of the defendant/Respondent. The onus of showing that late John Ambo alienated the appellant’s land and was paid compensation which he collected and signed as in Exhibits “1” and “2” has not been established by the defendant/Respondent. There is nothing from John Ambo for instance, that upon alienating the land and signing Exhibits “l” and “2” he issued any receipt to the defendant/Respondent’s officials. This could have been used to buttress their claim to the land in dispute.

I set aside the judgment of the leaned trial Judge and enter judgment in favour of the appellant as claimed in paragraph 22 of the Statement of Claim to wit:

“1. A declaration that the plaintiff is the rightful owner and entitled to a grunt of customary right of occupancy over the piece of land measuring 9.00 acres lying and situate at Giden Waya along Gidan Waya to Jos Express Way, on the South by Mai Sauri Audu plot, on the east by Daniel Anto Audu’s plot and on the west by Mai Janki Audu’s farm Land.

2. A declaration that the defendant’s act of partitioning and/or laying into plots of the plaintiff’s farm land for the purpose of giving it out to other people without the consent of the plaintiff is a violation of the plaintiff’s right of ownership.

3. A declaration that the defendant’s purported compulsory acquisition of the plaintiff’s piece of land without compensation is null and void same having been acquired not for public purpose.

4. A declaration that the act of the defendant in giving out the plaintiff’s piece of land to private people is null and void same having been done not for public purpose.

5. An order of perpetual injunction restraining the defendants, its agents, and/or privies -from trespassing into the plaintiff’s piece of land measuring 9.00 acres lying along Gidan Waya to Jos Express Road in Jama’a Local Government Area. ”

I award N20,000.00 costs to the plaintiff appellant against the defendant/Respondent.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in advance the leading judgment of my learned brother, Joseph Tine Tur, which I find very illuminating and it critically examined all the issues raised therein. I am in complete agreement that the appeal should be allowed and the judgment of the trial High Court be set aside.

The central point of the Appellant’s case which was clearly borne out, both in his pleading and viva vice evidence before the trial High Court was that he merely allowed his late son, Mr. John Ambo, with whom the Defendant allegedly negotiated the issue of revocation of the Appellant’s Right of Occupancy and payment of compensation, to live on the land , implying, therefore, that the late John Ambo had no title whatsoever in the land in question, and had no right, too, to donate the same or allow the same to be compulsorily acquired by any body, See paragraphs 4 to 13 of the Appellant’s Statement of Claim. He unequivocally stated in his evidence how he left the said land under the care of his late son John. He alleged he was not served with any Notice of Revocation in respect of the said land nor was he paid any compensation by the Respondent. He was equally aware of payment of any compensation to his late son by the Respondent. He was not confronted over those assertions that his late son had no title whatsoever over the land that he ordinarily permitted him to live thereon with members of his nuclear family.

The vital question is, if, the Appellant’s late son had no title whatsoever over the said piece of land, could he have valid transacted transfer of the said land or negotiated revocation of the Appellant’s right of occupancy over the same with the Respondent?

It is a common principle of law that one cannot convey what he does not possess, meaning that a person without valid title has none to convey. This is intrinsically embedded in the maxim nemo dat qui non-habet. It was not established before the trial High Court that the Appellant’s late son had title over the said land nor did he have right to part with any piece of that land nor was he the head of their family with the right to represent the entire family in any land transaction.

Further, there was no proof before the trial High court that the Appellant, as the owner of the said land was served with Notice of revocation of his Right of Occupancy over the land as strictly stipulated by the Land Use Act. The fact remains that the Appellant’s late son was not the rightful owner of the said land and he was not even alive to confirm whether any Notice of Revocation was served on him since the Appellant claimed he was not communicated with any of such facts by his late son.

The law is that effective service of a Notice of Revocation is a sine quo non to any valid acquisition of land by any government be it Federal, State or Local. In an acquisition of land, property does not vest until the Notice of Revocation is served in the manner prescribed by the law. In the instant appeal, every issue about the alleged revocation and payment of compensation revolved around the late John Ambo and he was not alive to confirm or deny those facts. Whatever be the situation, the facts remains that there was no proof that the said late John Ambo had any title or legal right in the said land which he allegedly consented to its revocation. The Appellant had overly, via his pleading and evidence, proved non-compliance with laws on compulsory acquisition by the Respondent.

There was no proof before the trial Court that the Appellant authorized his late son to represent him in the alleged deal with the respondent. The Appellant clearly indicated in his answer under cross-examination that even if he had sighted the compensation fees paid to his late son he still would have proceeded with the suit first, to show that the action he instituted did not hinge on non-payment of compensation to his son, but, on the fact that as the original owner of the said land, he was neither consulted nor did he consent nor yield to his land being compulsorily acquired by the Respondent. It is the law that where a Defendant in his pleading admitted that the Plaintiff was the original owner of a parcel of land in dispute, the onus is on the Defendant to establish that the Plaintiff had made an absolute grant of the parcel of land to him. See Fagbenro vs. Arobadi (2006) 7 NWLR Part 978 p.172. In the same vein, it is for the Respondent herein to prove that the acquisition complied with the law. It is an entrenched principle of law that any acquisition of land which fails to comply with the provision of the Land Use Act is bad ab initio and any act predicated upon such unlawful acquisition, for instance, a grant of such land to a third party, is equally bad. See Ononuju vs. A.G, Anambra State (1998) 11 NWLR Part 573 p. 304. was in the same light, it was held in C.S.S. Bookshop Ltd. vs. The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR Part 992 p. 530 that the mere grant of a right of occupancy over a land in respect of which there is already aright of occupancy or an existing interest in favour of another person, does not amount to the revocation of the prior right of occupancy or existing interest.

I would, therefore, in the light of the aforestated reason and the reasons expressed in the leading judgment, allow this appeal, and consequently, set aside the judgment of the trial High court in suit No. KDH/KAF/57/2002 delivered on 21/9/2005.

OBANDE OGBUINYA, J.C.A.: I have had a preview of the leading judgment delivered by my learned brother, J.T. Tur, JCA, and agree with his conclusion. My learned brother has adequately articulated the facts, issues and arguments in this appeal. I will, therefore, not duplicate his concerted effort by replicating them.

The heart of the appellant’s grouse on issue two was that the land in dispute was not lawfully acquired by the respondent. In paragraphs 14, 15, 16 and 21 of the appellant’s statement of claim, he averred that the respondent was laying the land into plots for the purposes of allocating them to private individuals, see pages 5-6 of the record. The appellant, as PW1, gave evidence in line with these pleadings, see pages 45-46 of the record. His evidence was not debunked under the crucible of cross-examination. Pw2 testified how he bought a plot in that land from one Joel who bought from the respondent local government. Again, his testimony was not refuted under cross-examination. It was rather solidified, under re-examination, by exhibits C and D. The respondent’s DW1, its sole and star witness, under cross-examination admitted on page 58 of the printed record, that aspect of the appellant’s case thus: “It is true that the defendant has stated assigning plots at the disputed land to individual and it is for private residential purposes”. These are the essential evidence on this subtle and pivotal point.

Now, the evidence of PW1 and Pw2, that the land was being allocated to other private individuals by the respondent, were not controverted, in any manner, either under cross-examination or by any witness of the respondent. In the case of Ayawale v. Atanda (1988) 1 NSCC 1 at 10, Obaseki, JSC, observed:

“The credibility of a witness is enhanced if there is no contrary evidence to his testimony. It is destroyed if there is contrary evidence to his testimony either from independent witness or from previous testimony on oath of the witness himself. If the credibility of a witness is destroyed the evidence he has given loses cogency and probative value”.

Since the testimonies of Pw1 and Pw2 were not contradicted, I will crown them with the toga of credibility. Interestingly, the law gives me the latitude to act and rely on unchallenged evidence, see Ogunyade V Oshunkeye (2007) 15 NWLR (pt.1057) 218; Owners, M/V Gongola Hope V. S.C. (Nig) Ltd (2007) 15 NWLR (Pt.1056) 189;. Ibrahim V. Osunde (2009) 6 NWLR (pt.1137) 392.

Moreover, that critical evidence, that the respondent had started assigning plots in the disputed land to individuals for private residential purposes, consolidated the appellant’s stand on this point. The reason is simple. In law, any evidence procured through the furnace of cross-examination constitutes crucial testimony that shores up the case of the party cross-examining, provided it is within the four corners of his leading. In the case of Akomolafe V. Guardian Press Ltd. (2010) 3 NWLR (Pt.1181) 338 at 351, Onnoghen, JSC, stated:

“…It is settled law that evidence elicited from a party or his witness(es) under cross-examination which goes to support the case of the party cross examining, constitute evidence in support of the case or defence of that party. If at the end of the day the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross-examination in establishing his case or defence… There is however a catch to this principle. The exception is that the evidence so elicited under cross-examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties”

See, also, Gaji v. Paye (2003) 8 NWLR (Pt.823) 583. As already noted, the appellant pleaded facts concerning this point.

Flowing from the foregoing analyses, it becomes axiomatic that the respondent allotted plots comprised in the disputed land to private persons for private developments or residential purposes. From the pleadings and evidence, the appellant acquired the land in about 1953 or 1954, about 50 years at the time of the evidence, from one Mallam Sule.

It stems from the above, that the appellant was a deemed holder or occupier of that land under section 36(1) of the Land Use Act, Cap. 15, Laws of the Federation of Nigeria, 2004. This is because he acquired the land months before the Land Use Act come into operation on 29th March, 1978.

By virtue of the prescription of section 28(1) and (3) of the Land use Act, the deemed right of the appellant could only be legimately revoked for overriding public interest or purposes. Section 51 of the Act, the definition section, sets out, in extenso, acts that constitute public purposes thus:

“51(1)In this Act, unless the con otherwise requires “Public purposes, includes-

(a) for exclusive Government use for general public use;

(b) for use body corporate directly established by law or by anybody corporate registered under the companies and Allied Matters Act as respects which the Government owns shares, stocks or debentures;

(d) for obtaining control over land contiguous to any party or over land the value of which will be enhance by the construction of any railway road or other public work or convenience about to be undertaken or provided by the Government;

(e) for obtaining control over land required for or in connection with development of telecommunications or provision of electricity;

(f) for obtaining control over land required for or in connection with mining purposes;

(g) for obtaining control over land required for or in connection with planned urban or rural development or settlement;

(h) for obtaining with economic; industrial or agricultural development;

(i) for educational social services”

A careful perusal of the above clearly demonstrates that private residential developments or purposes, for which the respondent assigned or alienated the land, do not come within four walls of the acts that constitute public purposes.

The law does not give licence to anybody, in individual, constituted authority or government, such as the respondent, to acquire, compulsorily or otherwise, any land that belongs to a person and alienate or transfer it to another private individual or body for his/its private use. To do so will run foul of the aforementioned sacrosanct provisions of the Land use Act. The aim of the Act is not to divest citizens of their pre-existing titles to land.

No doubt, the Land use Act is an expropriatory legislation which must be construed fortissime contra preferences – strictly against the acquiring authority, but sympathetically in favour of the person whose property rights are being taken away, see Bello v. Diocesan Synod of Lagos (1993)1 All NLR 247; Peenok Invest. Ltd. V. Hotel Presidential (1982) 13 NSCC 477; Ndoma-Egba V. Chukwuogor (2004) 6 NWLR (pt.869) 382; Adole V. Gwar (2008) 11 NWLR (Pt.1099) 562.

In the case of the Admin/Exec., Estate, Abacha v. Eke-Spiff (2009) 7 NWLR (pt.1139) 97, the first respondent was allocated a plot of land, known as plot 228, in Diobu, G.R.A in port Harcourt Rivers state.

Subsequently, the same plot was, without regard to the provisions of the Land Use Act, re-allocated to late Major General Sani Abacha. The Supreme Court deprecated that act when Aderemi, JSC, at page 129- 130, stated:

“Can it be said that the 1st and 2nd defendants, properly in law, allocated the plot of land to Major General Sani Abacha in the face of the averments in the plaintiffs pleading properly supported by evidence adduced? No doubt, by virtue of the provisions of section 28(1) of the Land Use Act, 1978, the Governor of a state has the power to revoke a right of occupancy for overriding public interest. The fact that the right of occupancy of the land of the plaintiff was revoked by the Governor was not in dispute. Again, not the same land was re-allocated to Major General Sani Abacha (deceased) admits of no argument. It is equally true that no notice of revocation was sent to the 1st plaintiff/respondent. By re-allocating the same plot of land to Major General Sani Abacha after revoking the right of occupancy of the plaintiff, the 1st and 2nd defendants cannot be said to have satisfied the provisions of section 28(1) and (2) of the Land Use Act… section 28(2) of the Act defines what “overriding public interest” in the case of a statutory right of occupancy means. By no means can the re-allocation of that plot occupancy to Major General Sani Abacha (now deceased) satisfy the afore-said provisions of section 28(2)”

His Lordship, Aderemi, JSC, was not done in his excoriation of that despicable illegal act. He, at page 132, concluded:

“The 1st and to defendants have woefully failed to comply with the provisions of the aforesaid Act and consequently they transferred nothing to Major General Sani Abacha. Even if the 3rd defendants had been a proper party, in law, to this case, would he have in the face of the materials before the court, had the case of the plaintiffs dismissed? I think not the 1st and 2nd defendants the allocating authority – failed to comply with the provisions of section 28(2) and (6) of the Land Use Act which enjoin that revocation of land by the government must be for nothing other than for the overriding public interest and that the notice of revocation, served in accordance with the provisions of sub-section (6) of the Act Certainly the re-allocation of the land to Major General Sani Abacha cannot be assimilated to an action taken in the overall public interest Major General Sani Abacha, in this con was an ordinary citizen”.

In the light of the foregoing, it is crystal clear that the conduct of the respondent, by expropriating the appellant’s rights and interests in the land and donating same to private persons, whether highly or lowly placed, flies in the facie of the law. Indeed, it smacks of robbing Peter to pay Paul, a judicial sacrilege!

Since the conduct of the respondent is not in tune with the law, the lower court’s endorsement of same, given the pleadings and evidence before it, amounted to a perverse decision. A perverse decision is one that does not take proper account of the facts, evidence and law before a court, see Udengwu V. Uzoegbu (2003)13 NWLR (Pt.836) 136. In my humble view, the perversion occasions a miscarriage of justice to the appellant in the sense that it is capable of tilting the fulcrum of this appeal in his favour. In the case of Akpan V. Bob (2010) 17 NWLR (Pt.1223) 421 at 479, Muhammed, JSC, lucidly said of miscarriage of justice:

“I think, a miscarriage of justice can only be said to present itself to court of law when that court, after examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favourable to the appealing party would have been reached in the absence of the error complained of”

See, also, Amadi V. NNPC (2000)10 NWLR (Pt. 674) 76; Gbadsmosi v. Dairo (2007) 3 NWLR (Pt.1021) 282; Akayepe V. Akayepe (2009) 11 NWLR (Pt.1152) 217.

Having regard to the cold fact that the lower court’s decision savours of perversion, which snowballs into a miscarriage of justice against the appellant, I have the mandate of the law to tinker with it. In the circumstance, I vacate it. In the result, I hold that the lower court was not right when it held that there was a legal acquisition of the appellant’s land. All in all, I resolve issue two in favour of the appellant. The net effect of this is that the purported acquisition was entrapped by a nullity. It was void ab initio and waiting to be set aside.

On the premise of these reasons, I am at one with my learned brother, J. T. Tur, JCA, that the appeal has merit. I, too, allow it. I abide by the orders made in the leading judgment.

Appearances

I.M. UGWUANYI, ESQFor Appellant

AND

A. ANDOW, ESQFor Respondent