AVEO GLOBAL RESOURCES LTD & ANOR v. FED. MINISTRY OF JUSTICE POST SERVICE HOUSING SCHEME LTD/GTE & ANOR (2020)

AVEO GLOBAL RESOURCES LTD & ANOR v. FED. MINISTRY OF JUSTICE POST SERVICE HOUSING SCHEME LTD/GTE & ANOR

(2020)LCN/14144(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, April 15, 2020

CA/A/510/2016

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. AVEO GLOBAL RESOURCES LTD 2. ARC OBU OGBO APPELANT(S)

And

FEDERAL MINISTRY OF JUSTICE POST SERVICE HOUSING SCHEME LTD/GTE & ANOR RESPONDENT(S)

RATIO

POWER OF ATTORNEY AS AN INSTRUMENT OF TRANSFER

The understanding of the Plaintiff that led it to enter into transaction with Interland Skills Ltd is an erroneous understanding because Interland Skills Ltd has no title to the land in dispute to pass to the Plaintiff. Nnaemeka Agu JSC (as he then was) has this to say, while delivering the leading judgment in the case of GEORGE OBI UDE V. CLEMENT NWARA & ANOR (1993) 2 NWLR (PT. 278) Pg 638 and I quote –
“…A Power of Attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers, limits, charges or alienates any title to the donee. Rather it could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a Power is not perse an alienation or parting with possession…”
The law regards a holder of a Power of Attorney as an agent of the principal or the donor of the Power, and the PW2 confirmed that in paragraph 5 of his witness statement on oath, where he deposed that he acted as a facilitator of the said offer at the request of Aveo Global Resources Ltd (the 1st Defendant in this matter) pursuant to a Memorandum of Understanding dated 22nd February, 2011. PER AGIM, J.C.A.

WHETHER OR NOT AN UNREGISTERED INSTRUMENT CAN BE ADMITTED IN EVIDENCE AS A RECEIPT OR EVIDENCE OF MONEY TRANSACTION

In the case of ERO V. TINUBU (2012) 8 NWLR (PT. 1302) Pg. 104 at 125 paras. B – F Mshelid JCA held while presiding and reading the leading judgment that “an unregistered document which falls within Section 2 of the Land Instrument Registration Law, Ogun State can be admitted in evidence as a receipt or evidence of money transaction. Such document cannot be used to prove title. However, where it is coupled with possession in appropriate cases, it may give rise to equitable interest.” Also in ITA PETER OKON V. EDET BASSEY OKON (2014) LPELR – 22648 (CA), the Court of Appeal Calabar Judicial Division per Nweze, JCA held that, “for an instrument to be pleaded or tendered in evidence in any Court as affecting land, such instrument must be registered. However, an unregistered registrable instrument is not admissible to prove title. It is only admissible to prove payment of money. Where also it is coupled with letting into possession of land by the seller, it may give rise to an equitable interest.” See also CO-OPERATIVE BANK LTD V. LAWAL (2007) 1 NWLR (PT. 1015) Pg 287.
“This means that an unregistered land instrument is not admissible to prove and establish title to land or an interest to the land. However, it is admissible to prove that there is a transaction between the parties. See OKON V. OKON (supra) at pages 23-24 paras. C – A. PER AGIM, J.C.A.

WHETHER OR NOT A COUNTERCLAIM IS A CLAIM ON ITS OWN IN THE SAME SUIT

See also Chief Ignatius Okeke & Another vs. Mike Eze 2013 LPELR-22455 CA where Aminu Adamu Augie JCA (delivering the lead judgment stated thus-
“It is the law that a counter-claim is a claim on its own in the same suit whereby the Defendant becomes a Plaintiff or claimant and the Plaintiff in the action itself becomes a defendant for the purposes of the counter claim. The procedure of counter claim is restored to where facts of the Plaintiff’s case are also conceived by the Defendant as giving rise to his own reliefs and claims such relief therein to avoid multiple action. Thus, the counter claim must pass the test of pleadings and the burden of proof of assertions under Sections 135 and 137 of Evidence Act.”
In other words, the counter claimant has the same burden on the claimant for a declaration of title to land – he must succeed on the strength of his own case and not on the weakness of the case of the person counter claimed against.
The onus lies on the Plaintiff that is counter-claimant to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. If the onus is not discharged the weakness of the Defendant case will not help him.
In the case at hand, what the counter claimant are asking are declaratory orders as to the title of the land in question.
In furtherance of this it was stated in Mogaji Vs. Cadbury 1985 2 MWLR Pt 7 Pg. 393 as thus:-
The making of a declaratory order is within the discretion of the learned trial judge and his discretion should not be too readily exercised. In a claim for declaration of title to land, if the defendant is unable to adduce evidence, oral or documentary, which had the effect of discrediting the plaintiff’s evidence, such declaration should be refused.” PER AGIM, J.C.A.

PARTIES TO A SUIT

This is because the parties in the suit could not have been properly consisted. Thus, anyone whose presence is crucial and fundamental to the resolution of a matter before the Court must be made a party to the proceedings. See B.A.T. (NIG) LTS vs. INT’L TOBACCO CO. PLC (2013) 2 NWLR (pt. 1339) Pg. 493 at 514-515 Paras HD-DF. PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/510/2016 was commenced on 2-8-2016 when the appellant herein filed a notice of appeal against the part of the judgment of the High Court of Federal Capital Territory delivered on 4-5-2016 in suit No. FCT/HC/CV/1051/2011 by A.S. Umar J. dismissing the counter-claim by the defendants therein. The notice of appeal contains 2 grounds of appeal.

Both sides filed, exchanged and adopted their respective briefs as follows- appellant’s brief and respondent’s brief.

The appellant’s brief raised the following issues for determination-
1. Whether the Appellants adduced sufficient evidence oral and documentary before the trial Court in proof of the counterclaim?
2. Whether the learned trial Judge was right in refusing to grant the reliefs in the counterclaim to mandate the Respondent to hand over to the 1st Appellant the original Letter of Offer/Allocation of Plot 26 cadastral Zone D02 Karsana South District Abuja?
3. Whether the learned trial Judge was right in dismissing the Appellant’s counterclaim even when the Respondent never

joined issues or filed a defence to the counterclaim?
4. Whether the learned trial Judge was right in remaining silent and or refusing to make an Order with respect to general damages sought by the Appellants against the Respondent in the Counterclaim?

During the hearing of this appeal, Learned counsel for the respondent stated that the respondent did not file any brief.

I will determine this appeal on the basis of the issues raised in the appellant’s brief.

I will consider all the issues together as they all deal with the correctness of the decision dismissing the appellant’s counter-claim.

I have carefully read and considered all the arguments of both sides on these issues.

The undisputed facts and evidence established by the pleadings and evidence of the counter-claimants are that the 1st Appellant entered into a Memorandum of Understanding dated the 22nd of February, 2011 with Alhaji Tahir and thereby engaged Alhaji Tahir to facilitate the Federal Capital Territory Minister’s approval of allocation of right of occupancy of plot of land Cadastral Zone D02 Karsana South District Abuja, in consideration the sum

of N120,000,000.00 (One Hundred and Twenty Million Naira) only and also a Power of Attorney in favour of Interland Skills Ltd; a company owned by the said Alhaji Tahir, which Power of Attorney was to authorize him to sell the land in any event of failure on the part of the 1st Appellant to pay the facilitation fee as agreed. Alhaji Tahir eventually secured the approval of the plot described as Plot 26, Cadastral Zone D02 Karsana South District, Abuja on the 7th day of April, 2011 in the name of the 1st Appellant herein and it was agreed that he should be in custody of the original title documents of the land pending the payment of his facilitation fee by the 1st appellant, while the 1st appellant took possession of the plot and commenced development. Shortly after securing the said plot, the 1st Appellant who is currently in undisputed possession, kept to its obligation and made a part payment of N10,000,000.00 (Ten Million Naira) only for the facilitation job and subsequently paid balance of N110,000,000.00 (One Hundred and Ten Million Naira) only to the said Alhaji Tahir. Meanwhile after receiving the advance payment of N10,000,000.00 (Ten Million Naira) only

from the 1st Appellant, the said Alhaji Tahir, without notice to the Respondent and without his permission, still relying on the said Power of Attorney, sold the same land to the Respondent and handed over the original title document which was then in his custody to the respondent, who bought without due diligence. When the respondent could not take possession, he filed a suit against the appellant. The respondent had paid money to PW2, the alter ego of Interland Skills purporting to buy the plot from Interland sills Ltd based on the understanding that Interland Skills Ltd had acquired the plot from the 1st appellant by virtue of a power of attorney (exhibit 4), that the original copy of the letter allocating the said plot 26 to the 1st appellant (counter claimant) was delivered by Interland Skills Ltd to the respondent without the knowledge and authority of the appellants, and has since then remained in the unlawful possession of the respondent, that the appellants have made several demands for the respondent to return the said allocation letter to them, that the respondent has persistently refused to return the said document to the appellants, that the

detention of the original offer or allocation letter by the respondent has made the 1st appellant loss several business opportunities, that prospective partners who had indicated interest in transacting with the 1st appellant over the plot loss interest when it is unable to produce the original copy of the offer letter. In addition to the testimonial evidence of their sole witness, DW1 (2nd appellant), they tendered the following documents in evidence –
1. Memorandum of understanding between Alh. Awal Tahir & Aveo Global Resources Ltd admitted and marked as Exhibit 8.
2. A deed of assignment between the chiefs and indigenes of Kuchi Bena Village Abuja and ARCHLINK Nig Ltd dated 29/4/2011 admitted and marked as Exhibit 9.
3. F.C.T.A, C.T.C receipt of payment for legal search admitted and marked as Exhibit 10.
4. A C.T.C letter from Ishiwu Chambers to the Managing Director Aveo Global Resources Ltd dated 5/9/11 admitted and marked as Exhibit 11.
5. A C.T.C a letter from Interland Skills Ltd addressed to Barrister Attamah Hilary dated 1/7/2011 admitted and marked as Exhibit 12.
6. A C.T.C of Interland Skills Ltd letter for request

of payment addressed to Executive Director, Aveo Global Resources Ltd admitted and marked as Exhibit 13.
7. A C.T.C of Fidelity Bank deposit teller admitted and marked as Exhibit 14.
8. The e-payment instruction letter to Manager, First Bank Plc dated 8/8/2011 admitted and marked as Exhibit 15.
9. A letter from AGBOR NJOK & CO solicitors to Aveo Global Resources Ltd addressed to Attorney General & Minister of Justice dated 30/11/11 admitted as Exhibit 16.
10. A letter from M.B. Kangiwa & Associates dated 2/2/2012 addressed to Managing Director Interland Skills Ltd admitted and marked as Exhibit 17.
11. 2 letters from Aveo Global Resources Ltd dated 6/10/2011 and 7th October, 2011 addressed to the Branch Manager, First Bank Plc Kubwa Abuja admitted and marked as Exhibit 18 (a-b).
12. The letter allocating the said plot 26 to the 1st appellant admitted as exhibit 1
13. The power of attorney of 22-2-2011 executed by 1st appellant in favour of Interland Skills admitted as exhibit 4.
14. The power of attorney of 20-7-2011 executed by Interland Skills Ltd in favour of respondent was admitted as exhibit 6.

The trial Court determined the respondent’s claim and the appellants’ counterclaim on the same body of evidence. After considering the totality of the evidence before it, the trial Court held thusly- “From the facts and circumstances of this suite, it is my understanding that PW2 cannot rely on Exh. 4 to confer title in Exh. 1 to the Plaintiff because, a Power of Attorney or to put it more clearly as stated by His Lordship, Walter Samuel Nkanu Onnoghen, JSC (While reading the leading judgment) held in GILBERT EZEIGWE VS. AWAWA AWUDU (2008) 11 NWLR (PT. 1097) Pg 158 at 176, Paras. A – C that “An Irrevocable Power of Attorney is not a document of title conferring title to the property in issue on the donee. It would still be necessary for the donee to prove title to the property whose title is in issue. Indeed the existence of the Irrevocable Power of Attorney is a clear evidence or confirmation of the fact that the title to the land in dispute resides in the donor of the Power. The only document that can prove any passing of the title to the donee would be a conveyance or an assignment.”
It is my understanding that the

Plaintiff acquired the land in dispute from PW2 based only on Exh. 4. PW1, under cross-examination has this to say-
“We acquire the land and we executed the Power of Attorney on 20/1/2011. We did search as to the owner of 1st Defendant, but more importantly, we have an irrevocable Power of Attorney in favour of Interland Skills Ltd., and our understanding of the Power of Attorney by 1st Defendant is that the 1st Defendant assigned the residue of his interest in the subject matter to Interland Skills Ltd., based on that understanding we enter into transaction with Interland Skills Ltd.”
The understanding of the Plaintiff that led it to enter into transaction with Interland Skills Ltd is an erroneous understanding because Interland Skills Ltd has no title to the land in dispute to pass to the Plaintiff. Nnaemeka Agu JSC (as he then was) has this to say, while delivering the leading judgment in the case of GEORGE OBI UDE V. CLEMENT NWARA & ANOR (1993) 2 NWLR (PT. 278) Pg 638 and I quote –
“…A Power of Attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so is not an instrument which

confers, transfers, limits, charges or alienates any title to the donee. Rather it could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a Power is not perse an alienation or parting with possession…”
The law regards a holder of a Power of Attorney as an agent of the principal or the donor of the Power, and the PW2 confirmed that in paragraph 5 of his witness statement on oath, where he deposed that he acted as a facilitator of the said offer at the request of Aveo Global Resources Ltd (the 1st Defendant in this matter) pursuant to a Memorandum of Understanding dated 22nd February, 2011. In the words of PW2 under cross-examination, he testified that he acted as a facilitator of the 1st Defendant for the allocation of the land in question and before he facilitated the land there was a Memorandum of Understanding. “The MOU has a time limit and I am to facilitate the land at the cost of N120 Million Naira…” So says PW2. The Memorandum of Understanding is to my mind, the document tendered in Court

during trial and admitted in evidence as Exh. 8.
The question is, based on the facilitation job, does this give PW2 the impetus to transfer interest in the plot of land in question to the Plaintiff pursuant to Exh. 4? The answer is emphatically, NO! For the reason being that a Power of Attorney is not an instrument of transferring title to a plot of land based on the authorities I stated above, and also based on the fact that during cross-examination PW2 confirmed thus:
By the statement/testimony of PW2 above, I make firm to state that PW2 has no authority of the 1st Defendant to transfer the land in question to the Plaintiff, because he testified that the 1st Defendant did not sell the land to him, neither did the 1st Defendant also gave the land to him free. He confirmed the purpose of the Power of Attorney he requested from the 1st Defendant is “in case of failure”. Unfortunately, he did not also tell the Court that there was failure on the part of the 1st Defendant in the transaction, that was what made him to sell the land to the Plaintiff.
Following from the above position, I agree with the learned Defendant counsel that PW2

cannot rely on Exh. 4 to confer title to the land in dispute to the Plaintiff and moreover it is not registered. This is because Exhibit 4 ought to have been registered, pursuant to S.2 of Land Instrument of Registration Law. In the case of ERO V. TINUBU (2012) 8 NWLR (PT. 1302) Pg. 104 at 125 paras. B – F Mshelid JCA held while presiding and reading the leading judgment that “an unregistered document which falls within Section 2 of the Land Instrument Registration Law, Ogun State can be admitted in evidence as a receipt or evidence of money transaction. Such document cannot be used to prove title. However, where it is coupled with possession in appropriate cases, it may give rise to equitable interest.” Also in ITA PETER OKON V. EDET BASSEY OKON (2014) LPELR – 22648 (CA), the Court of Appeal Calabar Judicial Division per Nweze, JCA held that, “for an instrument to be pleaded or tendered in evidence in any Court as affecting land, such instrument must be registered. However, an unregistered registrable instrument is not admissible to prove title. It is only admissible to prove payment of money. Where also it is coupled with letting into

possession of land by the seller, it may give rise to an equitable interest.” See also CO-OPERATIVE BANK LTD V. LAWAL (2007) 1 NWLR (PT. 1015) Pg 287.
“This means that an unregistered land instrument is not admissible to prove and establish title to land or an interest to the land. However, it is admissible to prove that there is a transaction between the parties. See OKON V. OKON (supra) at pages 23-24 paras. C – A.
If the Plaintiff tendered Exh. 4 to prove the existence of a transaction between them and PW2 it would be understandable , but it would not be admissible if the document is tendered to prove or establish title.” In PRINCEWILL EYO ASUQUO & ORS VS. MRS. GRACE GODFREY EYO & ANOR (2013) LPELR – 20199 (CA), the Court of Appeal Calabar Division, per Ndukwe Anyanwu JCA, held that “an unregistered registrable instrument is admissible as evidence of payment of purchase price. However, it is not admissible in evidence to prove or establish title, as it is not a valid document capable of transferring any title on estate. Such an instrument, coupled with the purchaser being in possession may give rise to

an equitable interest.” In the case at hand, the Plaintiff could not prove possession, because PW2 in his evidence under cross examination admitted thus:-
“Aveo entered and cleared the land. Aveo also settled the indigenes before clearance of land.”
In view of the above findings even if Exh. 4 is admitted in evidence before this Court, when the Court put the document through the crucible of evaluation and ascription of probative value thereto, this Court find this Exhibit to be a worthless document. I so hold. See IMB (NIG) LTD VS. DABIRI (1998) 1 NWLR (PT. 533) pg 284, BURAIMOH VS. KARIMU (1999) 9 NWLR (PT. 618) pg. 310. It is trite law that a Court is always expected in all proceedings before it to admit and act on evidence which is admissible in law, however, where a Court should in advertently admit inadmissible evidence it has a duty, generally, not to act upon it. AWOPEJO & ORS VS. STATE (2000) 1 NWLR (PT. 659) Pg 1.
Has the Plaintiff proved its case on the available evidence and on the balance of probabilities to be entitled to the reliefs sought?
The pertinent answer to the above question duly formulated is in

the negative. This is for the reasons stated above on the Plaintiff reliance on Exh. 4 as document of title. Also, looking at Exh. 17 as the Defendant counsel has drawn the Court’s attention to, the document was addressed to PW2 and during cross examination Pw2 admitted knowing the authors of Exh. 17 that they represent the Plaintiff in their letter dated 20-2-2012 demanding for the refund of N200 Million. But PW1 on the other hand, under cross examination told the Court that Exh. 17, the authors represented PW2 in this transaction but the letter was not written on behalf of the Plaintiff. The Plaintiff did not lead any evidence to contradict Exh. 17 as the document relates to the fact in issue… I formed the opinion and agreed with the submissions of the learned Defendant counsel having carefully scrutinized the evidence of witness as well as the documentary evidence tendered that the 1st Defendant has satisfied its obligation of paying the facilitation fee for the land to PW2. My reasons are first that having examined Exh. 8 and the evidence of PW2 under cross-examination, I understand that there exist an agreement between PW2 and the 1st Defendant

for the facilitation of the plot in dispute at the sum of 120 Million Naira only as in Exh. 14 following the issuance of Exh. 13 to the 1st Defendant. PW2 told the Court that on 8/8/2011 the 1st Defendant paid the sum of N90 million into his account, but he returned back the money because he sold the land.
Another point of interest is that, it is PW2 that gave evidence under cross-examination confirming to appoint/contract one Barrister Nnamdi Atama to act on his behalf in respect of the transaction on 5/9/2011 and who wrote Exh. 11 to the 1st Defendant demanding for the balance of the money, which PW2 earlier rejected. It is in evidence as in Exhibit 18 and 19 that the 1st Defendant paid the money as demanded and PW2 did not deny this payment of the sum of N10 Million. This Court is therefore meant to understand that by the actions of PW2, it is clear that the 1st Defendant had complied with Exh. 8 in respect of payment of the facilitation fee to PW2. I agree with the submission of the learned Defendant counsel on this issue and I so hold.
From the evidence of PW1 under cross-examination, it is really surprising PW1 claimed that the Plaintiff

conducted search before purchasing the plot in dispute but he told the Court that he was not aware that PW2 asked for his facilitation fee and was paid N10 Million by the 1st Defendant before PW2 approached the Plaintiff for the transaction. PW1 also in his testimony said that there was evidence of some work done on the land prior to the transaction and that he was not aware that the 1st Defendant settled the indigenes of the community.
Based on the above, I agree in toto with the learned Defendant counsel that the Plaintiff is not justified for calling PW2 as a witness. PW2 to my mind is necessary party to this suit who should clear the dust of some issues regarding his involvement in the suit if he is joined as a Defendant. The PW2 should therefore be a necessary party to the suit. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with. Therefore, where the resolution of a crucial issue in an action revolves around a person who is not a party to the suit then the action is fatally defective. This is because the parties in the suit

could not have been properly consisted. Thus, anyone whose presence is crucial and fundamental to the resolution of a matter before the Court must be made a party to the proceedings. See B.A.T. (NIG) LTS vs. INT’L TOBACCO CO. PLC (2013) 2 NWLR (pt. 1339) Pg. 493 at 514-515 Paras HD-DF.
In view of all the above, I am of the opinion that the plaintiff did not prove its claims to entitled it to all the reliefs sought in its writ of summons, their reliefs should therefore be dismissed. It is hereby accordingly dismissed.“

Having held that the plaintiff’s claim was not proved and dismissed same, it was illogical and unreasonable for the Trial Court to have held concerning the 1st appellant’s counter-claim thusly – “This takes me to the issue of counter claim, as argued by the learned counsel to the defendant/counter claimant. In that the Plaintiff did not file a defence to their counter claim, and therefore they are entitle to judgment. Allow me to refer to the wordings of per Oji Abacha JCA in Access Bank Vs Trilo Nig. Company Ltd & Other 2013 LPELR-22945 CA.
“It is the law that where the Plaintiff in the main

action fails, it does not necessarily follow that the counter claim must succeed unless findings are made in the main action in favour of the Plaintiff in the counter claim (i.e. the defendant in the main action) entitle him to succeed.”
See also Chief Ignatius Okeke & Another vs. Mike Eze 2013 LPELR-22455 CA where Aminu Adamu Augie JCA (delivering the lead judgment stated thus-
“It is the law that a counter-claim is a claim on its own in the same suit whereby the Defendant becomes a Plaintiff or claimant and the Plaintiff in the action itself becomes a defendant for the purposes of the counter claim. The procedure of counter claim is restored to where facts of the Plaintiff’s case are also conceived by the Defendant as giving rise to his own reliefs and claims such relief therein to avoid multiple action. Thus, the counter claim must pass the test of pleadings and the burden of proof of assertions under Sections 135 and 137 of Evidence Act.”
In other words, the counter claimant has the same burden on the claimant for a declaration of title to land – he must succeed on the strength of his own case and not on the weakness of

the case of the person counter claimed against.
The onus lies on the Plaintiff that is counter-claimant to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. If the onus is not discharged the weakness of the Defendant case will not help him.
In the case at hand, what the counter claimant are asking are declaratory orders as to the title of the land in question.
In furtherance of this it was stated in Mogaji Vs. Cadbury 1985 2 MWLR Pt 7 Pg. 393 as thus:-
The making of a declaratory order is within the discretion of the learned trial judge and his discretion should not be too readily exercised. In a claim for declaration of title to land, if the defendant is unable to adduce evidence, oral or documentary, which had the effect of discrediting the plaintiff’s evidence, such declaration should be refused.”
Based on the above, I am not satisfied that the counter claimant have adduced evidence that is substantial enough to sustain their claim. Therefore I hereby hold that the counter claim fails in its entirety. The counter claimant has not discharged the burden. This case is a perfect

example of a situation where Court would non-suit the defendant but that procedure has been abrogated now and the only order I can make is that of dismissal and consequently I hereby order that both the plaintiff and the Defendant has not made out their cases against one another and the action are hereby dismissed.”

The testimony of DW1 on behalf of the appellants and all the documentary exhibits listed above clearly establish the entitlement of the appellants to the reliefs claimed for in their counter-claim. Exhibit 1, the letter dated 7-4-2011 allocating plot 26 to the 1st appellant clearly show that he is the owner of the right of occupancy to plot 26 and is therefore entitled to a declaration that he is the owner of the plot having been allocated same. Exhibit 4, the unregistered power of attorney dated 22-2-2011 executed by the 1st appellant in favour of Interland Skills Ltd, relied on by the respondent as their root of title, did not vest title to the plot in Interland Skills. Therefore Interland Skills Ltd had no right or interest in plot 26 to transfer to the respondent and that the power of attorney dated 20-7-2011 executed by Interland

Skills Ltd purporting to transfer title to plot 26 to the respondent, transferred nothing. It is clear from the evidence that Interland Skills Ltd delivered to the respondents the original copy of the letter of offer or allocation of the plot without the knowledge and permission of the 1st appellant, the allocattee, the land therein and the owner of the allocation letter. Since Exhibit 4, the power of attorney on the basis of which he purported to do so did not give him such power, the delivery of the allocation letter to the respondents is unlawful. Therefore the respondent’s possession, custody and detention of same is unlawful.

Having held that the understanding of the respondent (plaintiff) that led it to enter into transaction with Interland Skills Ltd is an erroneous one because Interland Skills Ltd had no title to the land in dispute to pass to the respondent, that Interland Skills Ltd cannot rely on exhibit 4 (Power of attorney) to vest title to the plot in the respondent, that Interland Skills Ltd was a mere agent of the 1st appellant to facilitate the allocation of the plot to the 1st appellant, that PW2, Managing Director and alter ego of

Interland Skills Ltd testified that 1st appellant did not sell or give the land to Interland Skills Ltd, and that exhibit 4 was to guarantee the 1st appellant’s payment of the Interland Skills Ltd’s fee for facilitating the allocation and having also held that the respondent did not lead evidence to contradict exhibit 17, a letter demanding that Interland Skills Ltd through PW2, its Chief Executive refund to the respondent the 200 million naira paid by respondent to it for the plot as consideration that has failed, the trial Court should have gone ahead to grant reliefs 1, 2, 3, 4 and 5 claimed for in the counter claim and order some amount as general damages in favour of the 1st appellant as counter-claimant.

I will now consider the amount of damages the 1st appellant is entitled to by the counter-claimant. The appellants counter-claimed for- “GENERAL DAMAGES in the sum of N100,000,000.00 (One Hundred million Naira) against the Plaintiff/defendant for consequential loss of time and resources as a result of illegal retention of the 1st defendants title documents to the land in issue and lost of valuable business time.“

There is no evidence to prove the assertion in PW1’s testimony that several business partners that had indicated interest in transactions with the appellants over the plot, lost interest in going on with the transactions because the appellants could not produce the original copy of Exhibit 1, the allocation letter as it was being unlawfully detained by the respondent. There is no evidence of the names of the business partners and nature and particulars of the proposed transactions that they withdrew from. Therefore the 1st appellant failed to prove its entitlement to the sum of 100 Million Naira as general damages. There is no doubt that it would have suffered some losses as a result of the unlawful retention of its document of title to the plot by the respondent. In the absence of any evidence that justifies the award of such an aggravated amount as general damages, it is entitled to the award of a nominal amount as general damages for the unlawful retention of its title document by the respondent. General damages are those which the law implies in every violation of a right and where no actual loss has been shown by the evidence or there is no yardstick for

assessing the loss that would have been suffered, some amount would be awarded as damages to compensate the claimant for the violation of his right. See UBN PLC V. Ajabule & Anor (2011) LPELR – 8239(SC).

Considering the huge efforts made by the appellants to retrieve the original copy of their document of title from the respondent, the several meetings held between them and the attendant costs and inconvenience of attending such meetings and the fact that in the usual course of human affairs, it is reasonable to presume that the unlawful retention of the allocation letter by the respondent deprived the appellant possession of it and the use of the document to carry out the transactions for which it has spent huge sums of money to acquire the land, allocated to it by that document, I award the sum of 3 million naira as general damages for the respondents unlawful detention of the original copy of the 1st appellant’s document of title to plot 26. The respondent is hereby ordered to pay the said sum of 3 Million naira to the 1st appellant.
All the issues in this appeal are resolved in favour of the appellants.

On the whole, this appeal

succeeds as it has merit. It is accordingly allowed. The part of the judgment of the High Court of Federal Capital Territory delivered in Suit No. FCT/HC/CV/1051/2011 on 4-5-2016 by A.S. Umar J., dismissing the counter claim of the 1st appellant is hereby set aside. Rather it is hereby adjudged that the 1st defendant‘s counter claim has merit. And the reliefs counter claimed for are granted in the following terms:
1. A declaration of this honourable Court that the 1st Defendant/counterclaimant is the beneficial owner of a plot of land situate at plot 26, D02, Karsana South District, FCT, Abuja measuring approximately 82855.81M2 and covered by file No. 103140, having been rightly and legally allocated to it by virtue of the Offer/Letter of Allocation dated the 4th of April, 2011.
2. A declaration that the 1st Defendant/Counterclaimant being in actual possession of the said land thereof and entitled to quite possession of same.
3. A declaration that the purported purchase of the said land by the Plaintiff/Defendant from Alhaji Tahir is void having no titled thereof to pass.
4. An order that the Plaintiff/Defendant, its agents,

representatives or any person acting on her behalf particularly one Ike Idunni to handover forthwith the Original Offer/Letter of Allocation in its custody to the 1st defendant/Counterclaimant.
5. An Order of perpetual injunction restraining the Plaintiff/Defendant, its agents or any other persons or entities whomsoever, from laying claim to plot no. 26, D02, Karsana South District, FCT, Abuja.
6. The respondent shall pay the 1st appellant 3 Million naira as general damages for the respondent’s unlawful retention of the Original copy of the 1st defendant’s letter allocating Plot 26 to it.
The respondent shall pay costs N400,000.00 to the 1st appellant.

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

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Emmanuel Akomaye Agim, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

S. Egbaji, Esq. For Appellant(s)

P.E. Ediale, Esq., with him, O. P. Odigie, Esq. For Respondent(s)