ANGO v. OBINANI & ORS
(2022)LCN/16219(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, June 30, 2022
CA/A/683/2016
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Between
NAMADI ANGO APPELANT(S)
And
1. MR. CHUKWUMA F. OBINANI (SUING THROUGH HIS LAWFUL ATTORNEY HARMONY PROPERTIES LTD) 2. MINISTER OF FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL TERRITORY DEVELOPMENT AUTHORITY RESPONDENT(S)
RATIO
THE DUTY OF THE CLAIMANT SEEKING DECLARATION OF TITLE TO LAND
It is settled that a plaintiff who seeks a declaration of title to land has the burden to prove same. It is a principle of law long established and followed in series of decided cases that there exist five 5 recognised methods of proving ownership. Title to land may be proved by any
one or more of the five (5) methods. See the cases of IDUNDUN V. OKUMAGBA 1976 6-9 SC 227, DIVINE IDEAS LTD. V. UMORU 2007 LPELR-CA/A/196/2004, ADEWUYI V. ODUKWE 2005 7 SC PT. 11 P.1 and ASHIRU V. OLUKOYA 2006 11 NWLR PT. 990 P.1.
Proof in civil cases such as herein is on preponderance of evidence or balance of probabilities. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1 and ITAUMA V. AKPA-IME 2000 7 SC PT. II 24.
The plaintiff will first prove his own case with cogent and credible evidence before the burden or onus shifts to the Defendant and the Plaintiff cannot rely on the weakness of the Defendant’s case except where the Defendant’s case supports his case. See the cases of IHEKORONYE V. HART 2000 15 NWLR PT. 692 840. PER WILLIAMS-DAWODU, J.C.A.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on October 6th, 2016 by Hon. Justice U. P. Kekemeke wherein judgment was entered in favour of the 1st Respondent herein who was the Plaintiff at the Court below, against the 2nd and 3rd Respondents who were the 1st and 2nd Defendants at the Court below. The 3rd Defendant, one Taslim Kolawole Folarin at the Court below was not joined as a party before this Court.
The following were his claims before the Court:
(a) “A declaration that the Plaintiff is the beneficial owner of and the person who enjoyed the possession of all that piece of land known as Plot 507 Cadastral Zone B019 Katampe Extension Abuja File No. IM 3429 (New File No. IM 11209) (now subdivided by the 1st and 2nd Defendants into Plots 952 and 953) having been allotted with and granted the plot by the 1st and 2nd Defendants on 21/4/2001 prior to the 3rd Defendant.
(b). A declaration that the acts of the 1st and 2nd Defendant (sic) entering upon and subdividing the Plaintiff’s plot into Plots 952 and 953 and allocating same again to the 3rd and 4th Defendants without the consent and approval of the Plaintiff is illegal, unlawful invasion of Plaintiff’s right over the plot and thereof constitutes trespass to the Plaintiff’s land.
(c). A declaration that the title and offer of terms of grant/conveyance of approval granted to the Plaintiff in respect of the said plot is still valid and subsisting having not been revoked by the 1st and 2nd Defendants.
(d). An order of perpetual injunction restraining the Defendant, their agents, assigns, privies, or anybody/persons claiming for through them or on their behalf from trespassing or further trespassing on the Plaintiff’s Plot 507 Cadastral Zone B19 Katampe Extension Abuja in whatsoever way or manner.
(e). An order of eviction of the 3rd and 4th Defendants, their agents, assigns or persons claiming through or for them and any person not being the Plaintiff or his agents found on the said plot from the plot.
(f). An order of mandatory injunction compelling the 1st and 2nd Defendants to issue the Plaintiff with the new recertified certificate of occupancy in respect of the said plot of land with File No. IM 11209 and known as Plot 507 Cadastral Zone B19 Katampe Extension District Abuja.
Being dissatisfied with the judgment of the Court below, the Appellant filed his Notice and Six Grounds of Appeal. He seeks the following reliefs:
a) Allowing the appeal and set aside the judgment of his Lordship, Hon. Justice U. P. Kekemeke of the High Court of the Federal Capital Territory, Abuja delivered on the 6th October, 2016.
b) Granting the counterclaim of the Appellant.
c) Other consequential order(s) and/or relief(s).
In compliance with the Rules of this Court, the parties’ processes were filed as follows: the Appellant’s brief dated and filed December 8th, 2016, together with the Reply briefs to the briefs of the 1st, and 2nd Respondents and was settled by R. O. Nnah, Esq., who argued the appeal and urged that the appeal be allowed. The 1st Respondent’s brief was dated and filed February 13th, 2020, settled by Obinna Ajoku, Esq., who settled the brief and argued that the appeal be dismissed. The 2nd and 3rd Respondents’ brief dated November 8th, 2021, filed December 20th, 2021 and deemed as properly filed and served on April 5th, 2022, was settled by Betty A. Umegbulem Esq. who urged that the appeal be dismissed.
ISSUES FOR DETERMINATION SUBMITTED BY THE PARTIES
APPELLANT’S FOUR (4) ISSUES
1. “Whether the trial Court was right to have held that the 1st Respondent had proved his case to entitle him to the reliefs sought in his statement of claim.
2. Whether the trial Court was right to have granted the reliefs of the 1st Respondent based on the documents admitted in evidence without any evidence of acceptance.
3. Whether the trial Court was right not to have placed appropriate probative value on unchallenged documentary evidence.
4. Whether the trial Court was right to have dismissed the counter claim of the Appellant.”
1ST RESPONDENT’S TWO (2) ISSUES
(a). “Whether from the oral and documentary evidence adduced at trial, the trial Court was right in granting the 1st Respondent’s Reliefs.
(b). whether the Appellant led credible evidence to be entitled to the Reliefs he claimed in his Counter Claim.”
LONE ISSUE BY THE 2ND AND 3RD RESPONDENTS
“Whether from oral and documentary evidence adduced at trial, the trial Court was right at arriving the decision reached and whether the Appellant led credible evidence to be entitled to the reliefs claimed.”
Carefully and calmly considering the matters involved herein as contained in the Record before this Court, a single Issue thus will justly and fairly determine this appeal:
“Whether or not the Court below was right to have found in favour of the claims of the 1st Respondent and dismissed the counter-claim of the Appellant”.
RESOLUTION OF THE PRELIMINARY OBJECTION RAISED BY THE 2ND AND 3RD RESPONDENTS
The learned Counsel for the 2nd and 3rd Respondents, Ms. Betty A. Umegbulem, Esq., raised a preliminary objection to the effect that the instant appeal is incompetent as the parties were unilaterally altered because they were four at the Court below and are currently only three (3) without the leave of Court to the Appellant in that regard. He referred to Order 7 Rule 2 (1) of the Rules of this Court. That the 4th Defendant at the Court below was unilaterally removed from the list of Respondents as contained in the Notice of Appeal with only three (3) Respondents and there is no evidence that leave to that effect was sought and obtained by the Appellant. Further that all appeals shall be by way of rehearing and cited in support, the case of ESHIESHI V. AFEGBUA & ANOR. 2014 LPELR-22662 CA and that parties cannot on appeal by conduct or consent alter the parties on record as pleaded at the Court below. He cited in support the case of VERALAM HOLDINGS LIMITED V. GALBA LIMITED & ANOR 2014 LPELR-22671 CA. He argued that a defective Notice of Appeal such as the constant will render the entire appeal incompetent and the appellate Court will lack jurisdiction to hear and determine the appeal and cited in support the case of THE NIGERIAN ARMY V. SGT. ASANU SAMUEL & ORS 2013 LPELR-20931 SC. He urged in conclusion that the appeal be dismissed.
Responding to the objection the Appellant stated that “there was no fourth Defendant as there was nobody who presented himself as fourth Defendant neither was he represented by a counsel throughout the course of the trial. The fourth Defendant could have only existed in the figment of the imagination of the 1st Respondent and so could at best be said to be a phantom.”
The Appellant referred to the Notice of Appeal which has only three (3) parties stated therein. That if there was a fourth party, his silence shows that he is satisfied with the Court’s judgment as he did not appeal and therefore has accepted the decision of the Court. Further that from the Rules of this Court, it is only the “….names and addresses of all parties directly affected by the appeal….” and that an Appellant has the right to choose those to appeal against. He cited in support the cases of ADHEKEGBA V. MINISTER OF DEFENCE 2013 17 NWLR PT. 1382 P. 126 and BUKOYE V. ADEYEMO 2017 1 NWLR PT. 1546 P. 173. He submitted that it is however not every irregularity or non-compliance with the Rules of Court that will nullify the entire proceedings and the issue at hand being one and therefore goes to no issue. That the 1st Respondent did not raise the point as it does not affect the right of any of the parties in the instant appeal and it is unclear whose cause the 2nd and 3rd Respondents are pleading. In conclusion, urged that the objection be dismissed as lacking merit.
I have very carefully read the response of the Appellant as contained in the Appellant’s Reply brief to the 2nd and 3rd Respondents filed March 29th 2022 and deemed as properly filed and served on April 5th, 2022. One finds that there was the 3rd Defendant at the Court below who lost on the Counter-claim he put up against the 1st Respondent’s case. The said 3rd Defendant and the Appellant herein were the two parties that were allegedly allocated the unrevoked interest of the 1st Respondent in the property in question by the Federal Capital Development Authority and the Minister of the Federal Capital Territory, both 2nd and 3rd Respondents herein. In my considered view and humbly, it is trite that according to the Rules of this Court, Order 7 Rule 2(1) appeals are by way of rehearing, pursuit of substantial justice will not permit that the instant entire appeal be overturned on the issue of the party who has refused to appeal the judgment which dismissed his Counter-claim. It would appear that he has no grouse and would not be directly affected by the instant appeal.
The 2nd and 3rd Respondents failed to state the injustice or miscarriage of justice that occasioned to them thereby. Further in my humble view therefore, the objection should not render the whole appeal a nullity. More so as a penultimate Court, I shall notwithstanding, proceed to consider the substantive issues herein in the interest of doing substantial justice.
ARGUMENTS ON BEHALF OF THE PARTIES
The learned Appellant’s Counsel, Mr. R. 0. Nnah, Esq., submitted that it was not enough for the Court to have found that the 1st Respondent had established ownership to the land in dispute upon the documents he tendered which were, the letter of offer of terms, Exhibit A, Power of Attorney donated by witness to Harmony Properties Ltd. Exhibit B, Recertification and Re-issuance of Certificate of Occupancy, acknowledgement, Exhibit C, and Legal search report, Exhibit D. That he did not need to lead further evidence to prove ownership since the 2nd and 3rd Respondents admitted in their joint statement of defence that the land in dispute was allocated to the 1st Respondent and cited in support the cases of MOTUNWASE V. SORUNGBE 1988 5 NWLR PT. 92 P. 90 and OYENEYIN V. AKINKUGBE 2010 ALL FWLR PT. 517 597. He contended that the aforementioned documents tendered by the 1st Respondent are not documents of title to warrant the reliefs sought by the 1st Respondent as the letter of offer of terms of grant without evidence of acceptance cannot be said to be a title document.
He contended that the Court was wrong to not have ascribed probative value on the unchallenged following documentary evidence by the Appellant in support of his counter-claim; land application form Exhibit E, Land allocation approval from the Ministry of FCT, Exhibit F, Certificate of Occupancy, Exhibit G, AGIS deposit slips for N48,000, N30,000 and N10,000, Exhibits H-H2 respectively and others tendered by the Appellant. In support, he cited the cases of OBINECHE V. AKUSOBI 2010 ALL FWLR PT. 533 1845 and JOSEPH V. FIRST INLAND BANK NIG. PLC. 2010 ALL FWLR PT. 504 1491. That it was significant that the 2nd and 3rd Respondents did not object to the aforementioned documents and rather curiously the Court held that the Appellant failed to provide credible evidence in defence of his case.
He argued that the Court was wrong to have dismissed the Counter-claim of the Appellant in spite of the documents, Exhibits E, F, G, H-H2, I, J, K, L, M-M2 and N tendered by him and that there was no material contradiction between the oral evidence of the 2nd and 3rd Respondents and the unchallenged evidence (oral and documentary) of the Appellant and cited in support the cases of IDRIS V. A. N. P. P. 2008 8 NWLR PT. 1088 1 and EQUITORIAL TRUST BANK LTD. V. AGADA 2016 LPELR-40792 CA.
In conclusion, urged that the appeal be allowed and the judgment of the Court below be set aside with costs awarded against the Respondents.
THE 1ST RESPONDENT’S ARGUMENT
The learned Counsel for the 1st Respondent submitted that where the defence of the Defendants support the case of the Plaintiff as herein, that of 2nd and 3rd Respondents’ and the 1st Respondent’s case, where the 2nd and 3rd Respondents admitted in their defence that the 1st Respondent accepted the offer, the 1st Respondent can rely on it to prove his case. In support, he cited the case of ALHAJI MUSTAPHA BUKER MULIMA & 1 OR V. HAJIA AISHATU USMAN & 3 ORS. 2014 16 NWLR PT. 1432 P. 160 That apart from the issue of the acceptance letter, their evidence was also same as regards the fact that the plot in question was divided into two (2) plots and one of it was allocated to the Appellant and the 4th Defendant at the Court below who was not made a party before this Court since he failed to recertify on the date given by the 2nd Respondent. He submitted that the Court properly evaluated the evidence and came to a correct finding that the documents particularly Exhibit E are not genuine and cited in support the case of SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED V. OJIOWNORMONDARY AMADI & 1 OR 2010 13 NWLR PT. 1210 P.82, UTC NIGERIA PLC V. ALHAJI ABDUL WAHAB LAWAL 2014 5 NWLR PT. 1400 P. 221. The Appellant’s argument that Exhibit E is first in time to the 1st Respondent’s Exhibit A is not correct as one could not begot a son before begetting the father he argued.
The learned Counsel submitted that mere production of documents as the Appellant did would not necessarily bring about automatic grant of the relief being sought by the Appellant who amongst his claims were those of declaratory nature and in support cited the case of OYENEYIN V. AKINKUGBE 2010 4 NWLR PT. 1184 P. 265.
In conclusion, he urged that the appeal be dismissed for lacking merit.
THE 2ND AND 3RD RESPONDENTS’ ARGUMENT
The learned Counsel to the 2nd and 3rd Respondents submitted that the Court properly analysed and evaluated the evidence before it and therefore arrived at the right conclusion. That the Appellant failed to show that the findings or observation of the trial Court occasioned miscarriage of justice for the appellate Court to interfere and cited in support the case of ALHAJI MUHAMMED BUHARI AWODI & ANOR. V. MALLAM SALIU AJAGBE 2015 3 NWLR PT. 1447 575. In conclusion, urged that this Court should dismiss the instant appeal with substantial costs as lacking merit.
RESOLUTION OF THE SOLE ISSUE
I shall proceed to consider the singular issue already adopted for the determination of this appeal which is hereunder reproduced as follows:
SOLE ISSUE
“Whether or not the Court below was right to have found in favour of the claims of the 1st Respondent and dismissed the counter-claim of the Appellant”.
It is settled that a plaintiff who seeks a declaration of title to land has the burden to prove same. It is a principle of law long established and followed in series of decided cases that there exist five 5 recognised methods of proving ownership. Title to land may be proved by anyone or more of the five (5) methods. See the cases of IDUNDUN V. OKUMAGBA 1976 6-9 SC 227, DIVINE IDEAS LTD. V. UMORU 2007 LPELR-CA/A/196/2004, ADEWUYI V. ODUKWE 2005 7 SC PT. 11 P.1 and ASHIRU V. OLUKOYA 2006 11 NWLR PT. 990 P.1.
Proof in civil cases such as herein is on preponderance of evidence or balance of probabilities. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1 and ITAUMA V. AKPA-IME 2000 7 SC PT. II 24.
The plaintiff will first prove his own case with cogent and credible evidence before the burden or onus shifts to the Defendant and the Plaintiff cannot rely on the weakness of the Defendant’s case except where the Defendant’s case supports his case. See the cases of IHEKORONYE V. HART 2000 15 NWLR PT. 692 840.
Going through the finding of the Court, I shall determine the singular issue already adopted.
The Court found that the 1st Respondent was properly allocated the land in question, Plot 507 Cadastral Zone B19 Katampe Extension Abuja on File No. IM 3429 on November 21st 2001 and it stated thus in that regard on page 346 of the Record:
“The 1st and 2nd Defendants in their Statement of Defence particularly in paragraph 2 states that the Plaintiff was allocated Plot 507 Cadastral Zone B19 Katampe Extension Abuja on File No. IM 429 on November 21st, 2001 vide an Offer of Terms of Grant/Conveyance of Approval.
The 1st and 2nd Defendants further admitted that they accepted the Offer of terms of grant and that a copy of the acceptance was submitted to them.”
It is settled and trite that there is no dispute on an admitted fact. The Court was right to have so found upon Exhibit A dated 21/11/01, the terms of offer of Grant/Conveyance of Approval with the AGIS, Revenue Receipt of payment made by the 1st Respondent, Exhibit C, the Recertification and Reissuance of Occupancy and acknowledgment, which were also attested to by the 2nd and 3rd Respondents on the allocation and acceptance of the property by the 1st Respondent. The 2nd and 3rd Respondents are Statutory Authorities enjoined to allocate land in the Federal Capital Territory to persons upon application and both the 1st Respondent and Appellant traced their root of title to them. The Court was unable to find any credible evidence to support the claim by the 2nd and 3rd Respondents that the 1st Respondent breached fundamental clauses in the terms of offer to him. The Court found correctly in my view and humbly thus on page 347 of the Record:
“In view of the 1st and 2nd Defendants’ admission, it is unnecessary for the Plaintiff to prove title. It is my view and I so hold that the Plaintiff’s title to the piece of land in issue is valid.”
The grouse of the 2nd and 3rd Respondents against the 1st Respondent’s allocation as contained in the Record is that, he submitted his documents late after the date for doing so had lapsed for revalidation. Therefore, according to their evidence through their witness, that was lack of commitment on behalf of the 1st Respondent, for that reason, the plot was restructured, subdivided and allocated to the Appellant and another person. The Court found that failure to serve the 1st Respondent with the statutory notice of revocation as required by Section 28 (5) (a) and (b) of the Land Use Law 1978 meant that title to the land subsists in the 1st Respondent and correctly so. The 2nd and 3rd Respondent’s Witness testified to the effect that the 1st Respondent was not served any notice of revocation. Therefore, the claim of the 2nd and 3rd Respondents that they had subdivided the plot allocated to the 1st Respondent and allocated same to the Appellant and another person did not hold as it was against the provision of the Law. The Court in that regard stated as follows and correctly on page 349:
“The Land Use Act of 1978 does not authorize the Minister of FCT to simply walk in, take the land from the holder redesign same and give it to another private citizen.
The evidence before me is that no notice of revocation was issued and served on the Plaintiff.”
If as in aforegoing, the Court found that title to the land subsists in the 1st Respondent and remains valid, what then is the status of the Appellant’s Counter-claim?
The Appellant tendered documents with which to support his claim, which were admitted as Exhibits E-N. Firstly, the Court found from the evidence of the 1st, 2nd and 3rd Respondents and correctly in my humble view that it was a portion of the plot allocated to the 1st Respondent after it was redesigned and subdivided that was allocated to the Appellant. On the other hand, the Appellant claimed allocation from the same root with the 1st Respondent, but the 2nd and 3rd Respondents testified that his allocation was in June 2001 before the 1st Respondent’s allocation and different from that of the latter. It is important to note that the Court found the evidence not credible and correctly so as the allocation authority testified differently and the preponderance of evidence was to the contrary. The Appellant in spite of the documents he tendered was unable as the Court correctly found to prove that his land was not different from the subplots created from the plot of the 1st Respondent allocated to him. He failed to establish his case, did not produce documents or a composite plan to show that the portions of land allocated to the 1st Respondent and to him were not the same. Be that as it may, it remains from the Record that the allocating authorities admitted and supported the case of the 1st Respondent that they subdivided the 1st Respondent’s plot and allocated same portion of it to the Appellant and another person. The Court in conclusion held as follows on page 350 of the Record:
“It is my respective view and I so hold that the Plaintiff has proved his case on the balance of probability and preponderance of evidence so as to entitle him to judgment.
In my humble view that, the counterclaim fails for reasons hitherto given and it is dismissed”
And it accordingly entered judgment in favour of the 1st Respondent. In the light of the foregoing, the Counter-claim of the Appellant could not have survived. It had to fail and one cannot but agree with the Court’s finding and conclusion in that regard.
In the result, the sole Issue is determined against the Appellant. The appeal in consequence cannot be allowed, it hereby fails and is accordingly dismissed. Therefore, the judgment of the Court below delivered on October 6th, 2016 by Hon. Justice U. P. Kekemeke is hereby affirmed.
STEPHEN JONAH ADAH, J.C.A.: I read in draft, the judgment just delivered by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.
My learned brother has adequately addressed all the issues generated in this appeal. I agree with the reasoning and the conclusion that there is no merit in this appeal. I too, for the same reasoning, do dismiss this appeal and I abide by the consequent al order as made in the lead judgment.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been availed in advance, a draft copy of the leading judgment just delivered by my lord, Elfrieda Oluwayemisi Williams-Dawodu, JCA. and I am satisfied with the adroit reasoning and impeccable conclusion reached therein that the appeal is unmeritorious and ought to be dismissed.
My Lords, in law when an Appellant questions the evaluation carried out by the lower Court, it simply means that the Appellant alleges that the trial Court had not properly evaluated the evidence led by the parties. Thus, such a complaint is simply a call on the appellate Court to consider first whether or not the trial Court had properly evaluated the evidence led before it and if it finds that it had not done so, then to proceed to and re-evaluate the evidence in the printed record to determine if the trial Court had made correct findings borne out by the evidence as led by the parties. See Obateru V. Ahmad (2022) LPELR- 57281(CA) Cd. pp. 56-57, per Sir Biobele Abraham Georgewill, JCA.
Thus, it is only where the trial Court had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re-evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the evidence led and in the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re-evaluation of evidence does not arise since an appellate Court has no business interfering with the correct findings of a trial Court. See African Songs Limited & Anor V. King Sunny Ade (2018) LPELR-46184 (CA) per Georgewill, JCA. See also Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 at P. 198; Williams V. Tinubu (2014) All FWLR (Pt. 755) 200.
In the leading judgment, it has been ably and admirably demonstrated that the lower Court did a good job of the evaluation, appraisal and ascription of probative weights to the totality of the evidence led by the parties in the light of the issues joined by the parties in their pleadings and arrived at correct findings of fact. In law, that is the end of the matter. There is no further duty on an appellate Court once it finds that the findings and conclusions by a trial Court are correct than to affirm such correct findings and conclusions as ably done in the leading judgment.
It is for the above few words of mine and more importantly for the fuller and impeccable reasons adroitly marshalled out in the leading judgment that I too hold that the appeal is devoid of merit and thus liable to be dismissed. I too join my Lord in the leading judgment to dismiss the appeal. I shall abide by the consequential orders made therein.
Appearances:
Mr. Ebenezer Obeya, with him, Mr. Chuks Udo-Kalu For Appellant(s)
Mr. Obinna Ajoku, with him, Ms. R. A. Aguarianwodo 1st Respondent
Ms. Betty A. Umegbulam, with him, Ms. Olanike M. Jimoh 2nd & 3rd Respondent. For Respondent(s)
