BELEL v. FCT MINISTER & ORS
(2022)LCN/16011(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/ABJ/473/2012
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
ALHAJI ADAMU SULAIMAN BELEL APPELANT(S)
And
1. MINISTER OF THE FEDERAL CAPITAL TERRITORY 2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 3. FATIMA IDRIS 4. DONALD PETERSON RESPONDENT(S)
RATIO:
THE COMPETENCY TO INSTITUTE AN ACTION AND THE CHALLENGING THE COMPETENCY TO INSTITUTE AN ACTION
“The law is trite that a Plaintiff who takes out an action must be competent to institute such an action. Whenever his competency to institute the action is challenged, the onus is on him to prove that he has legal capacity to institute the action. The competence to institute an action also determines the competence of the action itself. See Olorunkem Ajao vs. Sonola & Anor (1973) 5 SC. 119. Thus, in Rufai Shitta & Ors vs. Momodu Ugali & Ors (1941) 16 NLR 23 that the suit of some persons suing as Plaintiffs in the name on the writ as the “Executive of the Central Mosque” of Lagos was held to be incompetent since the named Plaintiff lacked the legal capacity to sue. The suit was accordingly struck out. In the instant suit, the Plaintiff claimed to be “The Registered Trustee of the Anglican Diocese of Lagos” Prima facie Registered Trustees of the Anglican Diocese appears to be a corporate and personality. Once the juristic capacity is challenged, the fact of incorporation becomes a fact in issue. The onus of proving that fact lies on the party claiming to be incorporated in the name it has taken out the action as the Plaintiff. The burden of proof is discharged upon the production of the certificate of incorporation. This is a matter of fact.” BATURE ISAH GAFAI, J.C.A.
ESTABLISHING JURISTIC PERSONALITY WHEN CHALLENGED
“Failure to establish the juristic personality of Grand Towers was fatal as the burden rests on Grand Towers to establish same. At this point, the legal personality of the company was challenged and replied to but he needed to have gone further to produce the Certificate of corporation.
As regards the issue of alienation and the questions surrounding the reliefs sought, it is clear that the question of alienation, power attorney cannot be divorced from that of capacity to sue and the question of proper parties. I am satisfied that the capacity to sue was not established and also satisfied that the plaintiff cannot approbate and reprobate as he firmly attested to the fact of former holder of alienation in his pleadings and by his evidence and relating that to the reliefs sought are inconsistent with the rights and obligations of the plaintiff donor. Even though the deed of assignment was not tendered, there was still enough evidence to presume that it exists, in some form.” BATURE ISAH GAFAI, J.C.A.
THE DOCTRINE OF LASHES AND ACQUIESCENCE ARE TOOLS OF DEFENCE
However, I do not think the Cross-Appellant, with respect, acted wisely by ignoring also the Cross Respondent’s challenge that the Cross Appellant as Plaintiff so to speak in the counter-claim is not entitled to invoke the doctrines of laches and acquiescence being equitable defences available to a Defendant only. I agree with the Cross Respondent here. Laches and acquiescence are tools of Defence only which, if the Cross Appellant had considered carefully, he would have validly utilized in his Statement of Defence. In Oyedele vs. Ogun & Anor (1975) LPELR-2866 (SC) the Supreme Court held thus:
“…long possession, acquiescence, laches, etc, have always been known as defences or rather weapons of defences and not of offence…”
THE BEST EVIDENCE OF INCORPORATION IS THE PRODUCTION OF THE CERTIFICATE OF INCORPORATION
I want to add however that whenever an objection or challenge is made on the legal status of an incorporated company, the law is that the Appellant as in this case has the onerous responsibility of adducing evidence by the production of certificate of incorporation to establish its legal personality. See the cases of THE INCORPORATED TRUSTEES OF THE BROTHERHOOD OF CROSS AND STAR V MR E.T NKEREUWEM & ORS, (2018) LPELR-44087 (CA), J. SUNKANMI DAIRO & ORS V THE REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS, (2017) LPELR-42573(SC). In the case of MR ADEOYE MAGBAGBEOLA V MR TEMITOPE SANNI, (2005) LPELR-1815, the Supreme Court of Nigeria held thus:-
“The best evidence of incorporation is the production of the certificate of incorporation.” DANLAMI ZAMA SENCHI, J.C.A.
THE EFFECT OF FAILURE TO FILE A DEFENCE TO A COUNTER CLLAIM
In the case of PRINCE MATT OWOBU V MRS ALICE OSIFO (2017) LPELR-42436, this Court held as follow:-
“The position of the law is that where a plaintiff fails to file a defence to a counter-claim, which is a separate action, the effect is exactly the same as that of a defendant in a normal action who fails to file a statement of defence. See also OKE v AIYEDUN (1986) 2 NWLR (pt 23) 548.
Thus, based on the evaluation of evidence in support of the counter-claim, the learned trial Judge was right when it granted the reliefs sought by the 1st and 2nd Respondents’ counter-claim. DANLAMI ZAMA SENCHI, J.C.A
BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory delivered on the 9th of March, 2012 coram Banjoko J. (now JCA) in Suit No. FCT/HC/CV/188/2007 in which the Appellant’s suit was dismissed for lack of merit. The subject matter of the suit is the revocation of the Appellant’s Certificate of Occupancy over Plot 1301 Cadastral Zone 4 Asokoro District Abuja by the 1st and 2nd Respondents, which the Appellant disputed as unlawful and upon their refusal to withdraw or rescind the revocation, commenced his suit by which he sought from the trial Court declaratory and injunctive reliefs which altogether appear to be subordinated to their main for:
“a. A declaration that the Plaintiff’s donee is the lawful owner or holder of the Statutory Right of Occupancy over Plot 1301 Cadastral Zone 4 Asokoro District Abuja measuring about 2478.31 square meters previously covered by Certificate of Occupancy No: FCT/ABU/GC/779 dated 27/10/1992 then issued to the Plaintiff and subsequently re-validated and re-issued to the donee, the said parcel of land lying within the jurisdiction of this Court and bound by beacon Nos: PB 5739, PB 57.32, PB5717, PB5718 and PB 57 40;
b. An order of perpetual injunction restraining the Defendants either by themselves, agents, privies, assigns or howsoever called from further trespassing, interfering or doing anything whatsoever including revocation, alienation, re-allotment of the Plaintiff donee’s right or enjoyment over the said Plot 1301 Cadastral Zone 4 Asokoro District Abuja.”
See pages 115 to 119 of the Record of Appeal.
Issues were joined and the suit heard on the merit. In its judgment, the trial Court dismissed the Appellant’s claims.
Dissatisfied with the decision, the Appellant lodged this Appeal vide a Notice of Appeal filed on the 9th of May 2012 upon eleven Grounds thus:
“GROUND ONE
The learned trial Judge erred in law in holding that the revocation of the Plaintiff’s right of occupancy was valid:
GROUND TWO
The learned trial Judge erred in law in holding that the revocation of the Plaintiff’s right of occupancy was valid.
GROUND THREE
The learned trial Judge erred in law in validating the revocation of the Plaintiff’s right of occupancy when on the evidence before the Court the Plaintiff was neither heard from nor given the opportunity of making a representation before the revocation.
GROUND FOUR
The learned trial Judge erred in law in holding that the revocation of the Plaintiff’s right of occupancy on the ground of breach of the terms of the certificate of occupancy was valid.
GROUND FIVE
The Court below misdirected itself when after holding
“in fact it appears that the re-allocation too that place a day later whilst this smacks of an underhand dealing most unfair to the Plaintiff, the fact that his appeal for re-instatement to the deciding authority, the Minister was refused. It is probable that indeed the certificate was withdrawn at the last minute for some reason or the other as the Plaintiff could have perhaps validly claimed acquiescence to their breach and ratification of same by the collection of the last payment made by the Plaintiff after the revocation took place”
still validated the revocation vide EXHIBIT G.
GROUND SIX
The learned trial Judge erred in law in holding that:
“Failure to establish the juristic personality of Grand Towers was fatal as the burden rests on Grand Towers to establish same. At this point, the legal personality of the company was challenged and replied to but he needed to have gone further to produce the certificate of incorporation ”
GROUND SEVEN
The Court erred in law in holding that;
“As regards the issue of alienation and the questions surrounding the reliefs sought. It is clear that the question of alienation, power of attorney cannot be divorced from that of capacity to sue and the question of proper parties. I am satisfied that the capacity to sue was not established and also satisfied that the plaintiff cannot approbate and reprobate as he firmly attested to the fact of former holder of alienation in his pleadings and by his evidence and relating that to the reliefs sought, the reliefs sought are inconsistent with the rights and obligations of the plaintiff donor. Even though the deed of assignment was not tendered, there was still enough evidence to presume that it exits, in some form.
GROUND EIGHT
The learned trial Judge erred in law in concluding that EXHIBIT P established nothing as regard ownership of the property in dispute
GROUND NINE
The learned trial Judge erred in law in granting a declaration in favour of the 1st and 2nd Defendants.
GROUND TEN
The lower Court erred in law in making a declaration in favour of the 4th Defendant.
GROUND ELEVEN
The judgment is against the weight of evidence.”
The respective Particulars enumerated under these Grounds are noted. See pages 571-578 of the Record of Appeal.
The appeal was heard on the Appellant’s Amended Brief of Argument filed on the 26th of October 2021 which was deemed properly filed and served on the 2nd of February, 2022, the 1st and 2nd Respondents’ Brief of Argument filed on the 30th March 2021 deemed properly filed and served on the 2nd of February 2022, the 4th Respondent’s Brief of Argument filed on the 16th of March 2021 deemed properly filed and served also on the 2nd of February, 2022. The learned counsel for the parties briefly introduced and adopted their respective arguments and urged the Court to proceed accordingly.
In the Appellant’s Brief, his learned counsel Chidozie Ogunji Esq formulated six Issues for determination; thus:
“(i) having regard to the evidence, was the Court below correct in its conclusion that the revocation of the Plaintiff’s/Appellant’s right of occupancy over plot 1301 Cadastral, Zone 4 Asokoro District Abuja, was valid in law – GROUNDS 1, 2, 3, 4, 5.
(ii) Was the Court below right in its conclusion that the failure of the Plaintiff/Appellant’s Attorney to establish her juristic personality was fatal to the action Ground 6.
(iii) Was the Court below right to hold that the Plaintiff/Appellant did not have the capacity to sue – GROUND 7.
(iv) Was the Court below correct when it held that EXHIBIT P, the judgment of the High Court of the Federal Capital Territory in Suit No: FCT/HC/CV/669/08 FATIMA A. IDRIS (SUING BY HER ATTORNEY, MR. DONALD PETERSON) VS. SAMINU TURAKI established nothing as regards ownership of the plot in dispute in the case before it – GROUND 8.
(v) Was the Court below correct in granting declaratory reliefs in favour of the Defendants/Respondents – GROUNDS 9 AND 10.
(vi) Is the judgment of the Court below consistent with the evidence before that Court – GROUND 11.”
For the 1st and 2nd Respondents, two Issues are presented by their: learned counsel F. C. Obiamalu Esq. thus:
“(i) Whether the Appellant’s title over plot 1301, Cadastral Zone 4, Asokoro District, Abuja was validly revoked. (Distilled from Grounds 1, 2, 3, 5 & 5).
(ii) Whether the trial Court was right to refuse the claims of the Appellant while granting the 1st & 2nd Respondents’ Counter-Claim. (Distilled from Grounds 6, 7,9 , 10 & 11).”
As for the 4th Respondent, his learned counsel Chidi Nwanko Esq. retouched and presented the same Issues formulated by his learned friend for the Appellant. Sufficient to say that same are noted, without reproducing them here.
Unlike all the three learned counsel who started their arguments head-on from the substance and merits of the Appellant’s suit and the decisions of the trial Court on same, it is my view that the starting point in the resolution of the entire Issues for the parties in this appeal is from the Appellant’s second and third Issues (supra) which, as may be recalled, are both on the alleged incompetence of the Appellant’s Attorney on the ground of its non-incorporation as a juristic personality and thereby incompetent to act for the Appellant or to seek for and be granted the reliefs sought for the Appellant in the suit. That is what both Issues are all about and shall so be determined together herein. The gist of the Appellant’s arguments on the second Issue is that the trial Court misconceived the law on the case when it held that the Appellant’s Attorney, although empowered by a power of Attorney by the Appellant, still needed to prove its own competence as an incorporated entity before it may be competent and qualified to seek for and be granted the reliefs sought in the suit. The Appellant’s third Issue (supra) which is on whether the trial Court was right in its decision that the Appellant did not therefore have the legal capacity to bring the suit is thus a corollary one inseparable from and rooted in his second Issue.
There is no better way to summarise the Appellant’s arguments on the second Issue than as succinctly done by his learned counsel at page 19 of his Brief thus:
“4.29. In the instant case, the Plaintiff’s/Appellant’s juristic personality was not challenged, rather it was that of the Attorney that was challenged. Neither the 4th Defendant/Respondent nor the Court below cited any authority for the proposition that a Plaintiff’s/Appellant’s Attorney must establish his juristic personality in order to validate the action. All the authorities cited and relied upon at the Court below dealt with a challenge to the juristic personality of the Plaintiff and not that of the Attorney as in the instant case.”
Learned counsel lamented that in spite of the Appellant’s reference and reliance on the Supreme Court’s decision in Ajuwon vs. Adeoti (1990) 2 NWLR (Pt. 132), 271 which the learned counsel interpreted to convey that whatever vice of incompetence that taints the Attorney cannot invalidate the action brought by a juristic plaintiff, the trial Court sadly failed to apply or distinguish the binding force of the decision on the point before it. Learned counsel also referred to the Supreme Court’s decision in Vulcan Gases Ltd vs. G. F. Industries A. G. (2001) 9 NWLR (Pt. 719) 610 which he quoted in bits and submitted, as he viewed it, that an action cannot be invalidated on the basis of any vice affecting an Attorney through whom a Plaintiff sues once the Plaintiff himself is competent.
Proceeding into arguments on his third Issue (supra), the learned counsel prefaced it all with an emphatic “No”. He then argued in extension that the trial Court veered into speculation when it held that the Plaintiff alienated his title to his Attorney, thereby bringing to frontline the competence of the Attorney when there is no evidence of the alienation wrongly found by the trial Court. Learned counsel relied on the decisions in Niger Progress Ltd vs. N. E. L. Corporation (1989) 3 NWLR (Pt. 107) and Leventis Technical Ltd vs. Petrojessica Ent. Ltd (1992) 1 NWLR (Pt. 204), 459 in arguing that the trial Court was wrong in viewing the reliefs sought as being inconsistent with the right of the Plaintiff in a bid to justify the need by the Appellant to prove its juristic personality.
Although in the trial, this Issue was strictly between the Appellant and the 4th Respondent, the 1st and 2nd Respondents have however now joined the arena by the arguments of their learned counsel at page 12 of his Brief thus:
“6.19 My Lords, a cursory look at the pleadings in this case shows that the Appellant and the 4th Respondent even joined issues as to the corporate personality of the Attorney for whom most of the reliefs were sought. It goes without saying that juristic personality is fundamental before a party will be clothed with a standing in Court. The failure of the Appellant to prove the legal capacity of the Attorney fatally damaged his case before the trial Court.
6.20 This disability in legal capacity of the Attorney is made more fatal as most of the reliefs claimed in the suit enures to it. In fact, the declaration of title enures to it as it also seeks for the re-issuance of the Certificate of Occupancy to her. It must be shown to have the legal capacity to obtain reliefs 17(a) and (b) which will entitle the appellant to reliefs (c) (d) (e) and (f).”
Arguing the Issue under his own Issue two also, his learned friend for the 4th Respondent, although agreeing with the Appellant’s counsel’s argument that the Appellant’s Attorney owes no duty to prove its juristic personality, disagreed sharply that such trite position shall also hold sway where, as in the instant case, the parties have specifically joined issues in their pleadings on the corporate personality of the Appellant’s Attorney; placing reliance on the Supreme Court’s decision in G & T Investment Ltd vs. Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250), 500. Learned counsel further argued that the challenge to the capacity of the Appellant’s Attorney goes to the jurisdiction of the trial Court itself; placing reliance on the Supreme Court’s decision in J. K. Randle vs. Kwara Breweries Ltd (1986) 6 SC 1 and the decision of this Court in Nduka vs. Ezenwaku (2001) 6 NWLR (Pt. 709), 495.
It is also argued for the 4th Respondent that as the reliefs sought in the suit will clearly inure in the Appellant’s Attorney and not the Appellant, the former’s competence to seek for and the Court’s power to grant same must be thoroughly ascertained because even if the reliefs ought to be granted, the Court can not grant same to a non-existent or dead person.
The foregoing represents only a fair summary but not the entirety of the respective arguments on the Issue. Their entirety is however noted.
Indeed, both Issues appear to have been treated almost together by the trial Court as well in the following portion of its judgment:
“Failure to establish the juristic personality of Grand Towers was fatal as the burden rests on Grand Towers to establish same. At this point, the legal personality of the company was challenged and replied to but he needed to have gone further to produce the Certificate of corporation.
As regards the issue of alienation and the questions surrounding the reliefs sought, it is clear that the question of alienation, power attorney cannot be divorced from that of capacity to sue and the question of proper parties. I am satisfied that the capacity to sue was not established and also satisfied that the plaintiff cannot approbate and reprobate as he firmly attested to the fact of former holder of alienation in his pleadings and by his evidence and relating that to the reliefs sought are inconsistent with the rights and obligations of the plaintiff donor. Even though the deed of assignment was not tendered, there was still enough evidence to presume that it exists, in some form.”
Pages 564 to 565 of the Record.
To begin with, it seems to me with respects, that the learned counsel for the Appellant has misconstrued the decision in Ajuwon vs. Adeoti case (supra) which he lamented the trial Court failed to apply. I have read the decision. The portion of interest and relevance to the learned counsel and as quoted in his arguments on the Issue is reproduced here thus:
“Learned counsel for the Appellants seriously attacked the validity and relevance of the Power of Attorney. He contended that the Power of Attorney being invalid, the action was not properly constituted. The contention would probably have had merit if the Attorney, Murana Adeniji had instituted the action. The action was instituted by and filed in the name of Madam Alinrotin Adeoti. There can therefore be no justification for the contention that the action is not properly constituted.”
Firstly, in that case, it was the validity of the power of Attorney issued to the Attorney Mr. Murana Adeniji that was in issue. In the instant case, it is, strictly speaking, the competence of the Appellant’s Attorney as a corporate entity without, as alleged, evidence of incorporation, to seek for the reliefs in the suit; the emphasis here being in its capacity as a juristic person. If the Appellant’s Attorney herein were simply introduced and named as Mr. Grand Towers simplicita just like Mr. Murana Adeniji in the Adeoti’s case (supra) the decision in that case would have perfectly fitted in the submissions of the Appellant’s learned counsel.
Secondly, it must not be forgotten, although it was never referred, that whether for an action under the Companies and Allied Matters Act or under the Land Use Act or any other legislation, a Juristic person or entity whose status as such has been challenged cannot be validly so recognized for whatever purpose unless it is shown to have been duly incorporated at or before the material time it purports to act for whatever purpose in that capacity. See Section 18 (1) CAMA 2020. It is the singular fact of its incorporation that breezes life into a juristic entity to proceed to act or present itself as a juristic person and to sue or be sued as such; in the same way, to draw an analogy, that it is not the commendable fact of emerging as an all-round best graduate in Bar Final examinations that breezes a career of legal practice into the star graduate but the simple, ceremonious call to the Nigeria Bar and the attendant enrollment of his/her name in the Roll of Legal Practitioners. Until the latter two events, no person can practice as a legal practitioner in Nigeria or hold himself out such; so provides Section 2 of the Legal Practitioners Act. See more importantly Sections 18 and 679 (3) of CAMA 1990.
Undoubtedly, the status of the Appellant’s Attorney having been put on the line by the specific pleadings in paragraphs 1 and 11 of the Amended Statement of Claim and the 4th Respondent’s Statement Defence respectively, the proof of the incorporation status of the Appellant’s Attorney was made a critical issue which by its implication spiraled also to the jurisdiction of the trial Court itself. Undoubtedly also, the burden of proving the status of incorporation lies on the person who made the positive assertion about the incorporated status; i.e the Appellant who asserted in paragraph 1 of the Amended Statement of Claim that:
“The Plaintiff’s donee is a company incorporated under the Nigeria law to carry on legitimate business.”
See Sections 131 and 136 (1) of the Evidence Act 2011; Agala vs. Egwere & Ors (2010) 5 SCM 22, 37. The recognized way of proving the legal status of a company is by its certificate of registration or incorporation. In Dairo & Ors. Vs. Registered Trustee of the Anglican Diocese of Lagos (2017) LPELR-SC 148/2006, the Supreme Court held:
“The law is trite that a Plaintiff who takes out an action must be competent to institute such an action. Whenever his competency to institute the action is challenged, the onus is on him to prove that he has legal capacity to institute the action. The competence to institute an action also determines the competence of the action itself. See Olorunkem Ajao vs. Sonola & Anor (1973) 5 SC. 119. Thus, in Rufai Shitta & Ors vs. Momodu Ugali & Ors (1941) 16 NLR 23 that the suit of some persons suing as Plaintiffs in the name on the writ as the “Executive of the Central Mosque” of Lagos was held to be incompetent since the named Plaintiff lacked the legal capacity to sue. The suit was accordingly struck out. In the instant suit, the Plaintiff claimed to be “The Registered Trustee of the Anglican Diocese of Lagos” Prima facie Registered Trustees of the Anglican Diocese appears to be a corporate and personality. Once the juristic capacity is challenged, the fact of incorporation becomes a fact in issue. The onus of proving that fact lies on the party claiming to be incorporated in the name it has taken out the action as the Plaintiff. The burden of proof is discharged upon the production of the certificate of incorporation. This is a matter of fact.”
See also Wahab & Anor vs. Aliyu (2015) LPELR-40395 (CA).
The drastic effect of this issue goes far beyond the proof of the Appellant’s substantive claims in the suit.
As summarised earlier, the Appellant’s arguments on both Issues seem to have proceeded on the erroneous notion that the competence and capacity of the Appellant are not to be misapplied to the Appellant’s Attorney. With respects, it is not the competence of the Appellant that is questioned. It is the incompetence of the Attorney who failed to prove to the trial Court that it is competent to be granted the reliefs sought in the suit while its unknown legal personality persisted. It is obvious that the Appellant’s Attorney was never incorporated as a juristic entity, or if so incorporated, was for strange reasons known to it only averse to publicizing its certificate of registration in open Court trial.
Afterall, there can not be a better purpose of its certificate of registration than the one in the suit.
The trial Court was right when it held that the Appellant failed to go far enough in proving its legal status and capacity to seek for and be validly granted the reliefs in the suit. In effect, both Issues 2 and 3 of the Appellant are resolved in the Respondents’ favour.
Ordinarily and by the dictates of numerous judicial authorities such as the Supreme Court’s decisions in Olorunkem Ajao vs. Sonola & Anor (supra); Attorney General of the Federation vs. Guardian Newspapers Ltd & Ors (2001) FWLR 32 at 40; Ostankino shipping Co. Ltd (Owners of the MT “Ostankino”) vs. the Owners of the MT “Bata I” & Ors (2011) LPELR-4806 (CA) the trial Court and indeed this Court should have at this stage, invoked its powers in limine on the Suit/Appeal. However, this Court being the penultimate Court in our judicial hierarchy, will proceed further in line with the advice of the Apex Court in National Union of Road Transport Workers vs. Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt. 1307) 170 that this Court may proceed to determine the main appeal thereby affording the Supreme Court the benefit of its opinion.
As may be recalled, the Appellant’s first Issue for determination is on whether the trial Court was right in its conclusion that the revocation of the Appellant’s right of occupancy was valid. This Issue has been argued by the Appellant’s learned counsel strenuously, extensively and I must add, very commendably too.
While noting their entirety, the Appellant’s arguments are synopsized thus:
i. The Appellant’s suit at the trial Court was essentially a challenge against the action of the 1st and 2nd Respondents for non-compliance with the provisions of the Land Use Act (gleaned from pages 146-150 of the Record).
ii. Due Notice of revocation on the Appellant as required under Section 44 of the Land Use Act was not so served. Reliance placed here on the decisions in Osho vs. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184), 157; Nigeria Engineering Works Ltd vs. Denap Ltd (2001) 18 NWLR (Pt. 746), 762 among others and the decision of the High Court of the FCT in Suit No. FCT/HC/CV/188/07 which is said to be related to the suit leading to the appeal.
iii. The proof of service of the requisite Notice on the Appellant lies on the shoulders of the Respondents who failed to prove so; which the trial Court failed to pronounce on.
iv. The Notice of revocation relied on by the Respondents (exhibit G) was neither signed by nor under the instructions of the 1st Respondent.
v. There was no hearing afforded the Appellant before the revocation of his right of occupancy. A. G. Bendel State vs. Aideyan (1989) 4 NWLR (Pt. 118), 646 referred.
vi. The 1st and 2nd Respondents, yet after the revocation, received payments of ground rents from the Appellant.
For the 1st and 2nd Respondents however, it is argued but presented here in the same manner thus:
i. Right of an allotee is not absolute but subject to the fulfillment of the terms of the allotment.
ii. Exhibit A (the Certificate of Occupancy) issued to the Appellant states in its paragraph 4 that the plot it conveyed was subject to development by the Appellant within two years.
iii. The plot under exhibit A remained undeveloped up to the time of revocation.
iv. The revocation was on the ground of non-development of the plot conveyed by exhibit A. Reliance is placed on paragraph 2 at page 561 containing the relevant portion of the judgment; Sections 8 and 28(7) of the Land Use Act; UBA Plc. vs. New Tarzan Motors Ltd (2016) LPELR-41016 (CA); Adole vs. Gwar (2008) 11 NWLR (Pt. 1099)
v. The Respondents had proved that the revocation was on the ground of breach of the terms of offer.
vi. The Land Use Act does not require that there must be a hearing preceding revocation; placing reliance on Section 28(6) of the Act which states the procedure for revocation.
vii. Exhibit A was signed by an officer duly authorized by the 1st Respondent to do so.
viii. Appellant did not deny service of the Notice of revocation on him.
ix. Exhibit A was validly revoked under Section 28(7) of the Land Use Act.
The 4th Respondent’s arguments under this Issue are similarly highlighted as follows:
i. The Appellant’s case at the trial was fundamentally flawed owing to his failure to prove his case properly and the paucity of the evidence he adduced.
ii. The Appellant did not plead or challenge the revocation of exhibit A in his pleadings but only referred to his Witness Statement on Oath; paragraph 44 of the Appellant’s Brief of Argument referred.
iii. Issues are joined in the pleadings, not in the Witness Statement on Oath.
iv. The Appellant never said or complained of non-service of the notice of revocation. Paragraphs 15 and 17 of the Appellant’s Witness Statement on Oath referred.
v. The decision in Osho’s case and the two others cited by the Appellant on the issue of notice are inapplicable to the Appellant’s case at the trial and this appeal because service of revocation notice was directly in issue in those cases; unlike the case in the instant appeal which contains no word denying service of the revocation notice on the Appellant.
vi. Although the Appellant’s appeal is heavily anchored on his claim of non-service of the notice of revocation on him, there were no such pleadings by the Appellant before the trial Court. Reliance is placed here on the decisions in Kyari vs. Alkali (2001) 11 NWLR (Pt. 724), 412 at 433 -434; Siaka Isezuo Anor. Vs. Chief J. A. Sanni & Anor (2013) LPELR -21974 (CA).
vii. The issue of non-service was wrongly first raised in the Appellant’s final written address before the trial Court; Kurubo vs. Zach Motisin (Nig) Ltd (1992) 5 NWLR (Pt. 239), 102 at 116; Ohochukwu vs. A. G. Rivers State (2012) 6 NWLR (Pt. 1295), 53 at 84 paras B-C referred.
viii. The Appellant’s Attorney admitted in paragraph 11 of the Amended Statement of Claim that the Attorney was served with the Notice of revocation; although claiming that it was backdated.
ix. The service of the Notice of revocation on the Appellant’s Attorney was proper and valid under Section 44 of the Land Use Act; more so as the power conferred on the Appellant’s Attorney by the Appellant was an irrevocable power of attorney.
x. The Appellant reacted to the Notice of revocation by appealing to the 1st and 2nd Respondents to reverse the revocation.
xi. The Respondents have no duty to prove service of Notice of revocation as there was no denial of service pleaded by the Appellant.
xii. The Notice of revocation though not signed by the 1st Respondent personally, was properly and validly signed by an officer duly authorized by the 1st Respondent. Reliance is placed here on Section 28(6) of the Land Use Act; Section 168 (1) and (2) of the Evidence Act 2011; Buhari vs Obasanjo (2005) 2 NWLR (Pt. 910), 21 among others.
xiii. The Appellant did not complain at the trial that he was not heard before the revocation. The case of Okike vs. LPDC (2006) 1 NWLR (Pt. 960), 67 at 92-93 referred.
xiv. Exhibit C (Notice of revocation) clearly stated the reason for the revocation.
xv. The Appellant never pleaded or claimed that the land was developed. Page 505 of the Record referred.
xvi. The Appellant never pleaded or claimed that he submitted a building plan but was not approved.
xvii. The act of the revocation cannot be cancelled by mere subsequent payments by the Appellant.
xviii. While Search Report issued by the Appellant shows that he transferred his title to the Appellant’s Attorney, it was the Appellant that was the Plaintiff; not the Appellant’s Attorney.
xix. The Appellant’s claim that a new Certificate was prepared in the name of the Appellant’s Attorney but was withheld at the point of issuance was neither relevant nor proved.
Let me stress that the foregoing are only highlights, not the entirety of the arguments and submissions of the parties. Their entirety is however noted.
It seems to me that the recurring main arguments running through the respective Issues of the parties under consideration revolve around two questions on whether the revocation of the Appellant’s Certificate of Occupancy was preceded by a valid Notice to the Appellant in the manner provided under Section 44 of the Land Use Act and whether the Appellant was entitled to be heard and if so whether he was heard before the revocation of his Certificate of Occupancy.
Fundamentally therefore, the attention of this Court is drawn by the parties, rightly in my view, to the provisions of Section 44 of the Land Use Act.
It is important however to note here that all the parties; more particularly the Appellant, agree that 1st Respondent possesses the power to revoke any right of occupancy in the Federal Capital Territory. They are also on common ground that the power conferred on the 1st Respondent is not absolute but one that is clearly circumscribed by the provisions of Section 28(5) of the Land Use Act which provides that:
“(5) The Governor may revoke a statutory right of occupancy on the ground of –
(a) a breach of any of the provisions which a certificate of occupancy is by Section 10 of this Act deemed to contain;
(b) a breach of any term contained in the certificate of occupancy or in any special contract made under Section 8 of this Act;
(c) a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the governor under Sub-section (3) of Section 9 of this Act”
The Appellant has however differed strongly with the Respondents on the mode adopted by the 1st Respondent in the revocation of the Appellant’s right of occupancy in the manner the requisite Notice on the Appellant was formed and allegedly served on him, which according to the Appellant, smacks of illegality and contrary to the provisions of Section 44 of the Land Use Act which provide that:
“44. Any notice required by this Act to be served on any person shall be effectively served on him-
(a) by delivering it to the person on whom it is to be served; or
(b) by leaving it at the usual or last known place of abode of that person; or
(c) by sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; or
(d) in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal officer or sending it in a prepaid registered letter addressed to the secretary office or the company or body at that office; or
(e) if it is not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served, by addressing to him by the description of “holder” or “occupier” of the premises (naming them) to which it relates, and by delivering it to some person on the premises or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.”
I have read the Appellant’s pleadings before the trial Court in order to identify the specific complaints he submitted for trial. Save in its subsequent amendment of the name by which the Appellant proceeded in the trial, his Originating process in its Writ, Statement of Claim and Witness Statement on Oath has remained the same; by which the Appellant resolutely prosecuted the claim therein as shown in the proceedings at pages 492-523 of the Record. The main complaint of the Appellant all through the trial of his claims were or revolved around the service and competence of the Notice of revocation on him by the 1st and 2nd Respondents. Curiously however, this complaint, as significant as it was in the trial and in this appeal, is one that was never adequately and clearly pleaded in the Appellant’s Statement of Claim by which issues could have been joined by the Respondents and tried accordingly. This is wrong. See Odumosu vs. ACD Ltd (1976) LPELR-SC 479/1975; Okoye & Ors. vs. Nwanko (2014) LPELR-23172 (SC). Paragraphs 11 and 12 of the Appellant’s Statement of Claim merely alleged that the Appellant who was to be issued with a new Certificate of Occupancy was instead issued with a backdated Notice of revocation. The crux of the issues which occupied the greatest space in the judgment was on whether there was due service of a Notice of revocation on the Appellant and more importantly whether the Notice was valid having been signed by an officer instead of the 1st Respondent himself. The Appellant’s complaint of non-service of the Notice of revocation is essentially a question of fact although ultimately rooted in the provisions of Section 44 of Land Use Act. In my humble view, it is neither enough nor clear on his pleadings for the Appellant to plead generally that the revocation of his right of occupancy was contrary to the provisions of Section 44 of the Land Use Act without going further to state or hint the manner or dimension of the alleged infraction. The Appellant persisted in this obscurity as demonstrated in the “Settlement of Issues and Documents” he filed much later in the proceedings on the 14th of August 2012 found at page 186 of the Record; in which he specifically identified and submitted to the trial Court his Issue for determination as whether the revocation of his certificate of occupancy was valid and identified also as the document he would rely on thus:
“The Claimant objects to the unregistered deed of assignment dated 24th July 2007 in favour of the 4th Defendant on the ground that it is an instrument which can neither be pleaded nor tendered in evidence having regard to Section 2 and 15 of the Land Instruments Registration Law.” Consequently, both the 1st and 2nd Respondents’ Statement of Defence and that of the 4th Respondent were also generally quiet on the Appellant’s complaints against the Notice of revocation in the particular line or dimension of the Appellant’s allegation against the Notice of revocation for its non or proper service and it having been signed by an officer other than the 1st Respondent himself. It is thus not unexpected when the 4th Respondent retorted in his argument on this Issue that the Issue is a new one not arising from the pleaded facts on which the parties joined issues and that the issue emerged only in the final written address of the Appellant filed after the conclusion of hearings in the suit before the trial Court; which the 4th Respondent argued is tantamount to springing surprise or laying a trap on him and therefore against the rules of fair hearing. I agree. See Buraimoh vs. Bamgbose (1989) LPELR-818(SC).
In any case, the line of argument by the Appellant on whether or not he was served with a Notice of revocation should have been put to rest by the Appellant’s PW1’s evidence on this point found at pages 497, 502 and 504 of the Record admitting receipt of the Notice of revocation. What is more, the Appellant failed to prove his allegation that the 1st Respondent’s Officer Mr. Oni O. A. who signed the Notice of revocation on the directive of 1st Respondent had no authority of the 1st Respondent to do so; nor is it shown, even if possible, that inspite of the clear wordings of Sections 28 (6) and 45(1) of the Land Use Act which conferred on the 1st Respondent the power to delegate an Officer to sign a Notice of revocation, the exercise of such power of delegation on Mr. Oni O. A. is unlawful or ultra vires.
The Appellant’s grouse that he was not heard before the revocation of his right of occupancy as argued under this Issue is also one that was not submitted to the trial Court in his pleadings. More importantly, neither do the provisions of Section 44 of the Land Use Act under which the argument appears to be based nor under other related provisions of the Act is there any mandatory requirement on the 1st Respondent to accord hearing or representations by the Appellant before the exercise of the power of revocation. In my respectful view, this is not a claim which the Appellant can successfully raise against the Respondents even at the trial stage.
Furthermore, the Appellant’s arguments that the 1st and 2nd Respondents went ahead and collected payments from him in respect of the land in issue even after they had already revoked his certificate of occupancy over it is one which, with utmost respect, does not go to the core issue of the validity of the revocation nor are those payments capable of ceding back to the Appellant his revoked certificate. It may at best give rise to other remedial claims by the Appellant but will definitely not include specific performance on the Appellant’s case as constituted before the trial Court and in this appeal. It is my considered view that this Issue too be and is resolved in favour of the Respondents.
The Appellant’s next Issue is that in which he questions the decision of the trial Court when it held in the concluding part of its judgment found at page 569 of the Record thus:
“It is important to state that the earlier judgment did not make any decision as to title more especially as the Plaintiff in that action failed to tender any documents in proof of her right to the land. Therefore the judgment established nothing as regards ownership.”
For ease of understanding, the earlier judgment referred here was admitted in evidence in the trial as exhibit delivered by the same Court (though not by the same learned trial Judge). The Appellant’s argument here is that as the judgment in exhibit “P” which was in respect of the same plot in issue in the suit before the trial Court and the earlier Court having refused in its exhibit “P” to declare the 3rd Respondent herein as the owner of the same plot, the trial Court however held in its judgment that exhibit “P” did not establish anything as regards ownership of the Plot.
In other words, the trial Court failed or refused to obey the judgment in exhibit “P” to the latter by towing the same line to find against the Respondents. It is argued that exhibit “P” is relevant to the determination of title in the suit before the trial Court; placing reliance on the decision in Egbaran vs Akpotor (1997) 7 SCNJ, 392 among others.
Apparently, the 1st and 2nd Respondents are not bothered by the Appellant’s present Issue and did not therefore proffer arguments on exhibit “P”. The 4th Respondent however argued this Issue in the same force as did the Appellant. In brief, the 4th Respondent’s arguments are that firstly, the attempt by the Appellant to raise a plea of res judicata in respect of exhibit “P” cannot succeed because the parties, the subject matter in two suits are not the same; that the plea was not pleaded and that exhibit “P” did not conclusively determine the rights of the parties to the present Appeal. It is further argued that the 4th Respondent tendered exhibit “P” only to prove exclusive possession against a trespasser Senator Saminu Turoki but not to prove title in the present case. It is also argued that the causes of action in the two suits are different and that in any case judgment in land matters are always in personam.
Firstly, if the reason for the 1st and 2nd Respondents’ apparent indifference to the Appellant’s present Issue is perhaps because they were not parties in exhibit “P”, I will readily agree with them because the Appellant has a tophill task of showing how the judgment in exhibit “P” will bind the 1st and 2nd Respondents who the same Appellant did not make as parties in it; which the Appellant has not shown or even commented on. See Adama Beverages Ltd vs. Galleon (2016) LPELR-40314 (CA).
As for the 4th Respondent, I think there is need to remember that the specific cause of action or subject matter before the trial Court was on the revocation of the Appellant’s Certificate of Occupancy which the Appellant claimed was contrary to the provisions of Section 44 of the Land Use Act, particularly on the ground of non-service of due notice and same having been signed by an officer of and not the 1st Respondent himself.
Secondly, exhibit “P” did not and could not have the effect of nullifying the revocation of the Appellant’s Certificate of Occupancy because that was not the issue in exhibit “P”. Whatever purpose exhibit “P” was meant or interpreted by both the Appellant and the 4th Respondent to serve in the suit before the trial Court definitely did not include nullifying the revocation of the Appellant’s Certificate of Occupancy.
Thirdly, the finding of the trial Court that exhibit “P” did not establish ownership of the land which finding the Appellant’s learned counsel described as “bizarre” is, with utmost respect to the learned counsel, unassailable when dispassionately construed in the context of the concluding part of the judgment in exhibit “P” in which that Court merely declined to grant title to and as sought by the 3rd Respondent; which is clearly different from deciding the question of title on the merit. In my humble view, this Issue too can only be resolved in favour of the Respondents and it is so resolved.
The last Issue by the Appellant has its root in the judgment of the trial Court on the 1st and 2nd Respondents’ counter-claim in which the trial Court granted reliefs sought therein against the Appellant. Apparently believing that the 1st and 2nd Respondents’ counter-claim did not matter, the Appellant simply ignored it by declining to file any defence to it. Now the Appellant is complaining that the trial Court was wrong to have granted the reliefs sought in the counter-claim on the ground that the reliefs sought were abandoned. In my humble view, this argument is bare because the 1st and 2nd Respondents’ counter-claim remained in their pleadings all through the trial and evidence led accordingly.
The biggest error by the Appellant, with respect lies in the Appellant’s overzealousness and ill-advised total confidence in his Statement of Claim which made him neglect the facts and the reliefs sought in the counter-claim. The Appellant forgot that facts not denied are deemed admitted and require no further proof. See Section 123 of the Evidence Act, 2011; Zuokemefa JP vs. Obipan Co. Ltd & Anor (2010) LPELR-5105(CA) Danladi vs Dangiri (2014) LPELR-SC.416/2013; Citibank (Nig) Ltd vs. Ikediash (2020) LPELR-SC.621/2015.
The attempt by the Appellant to impugn the form and context of the counter-claim itself is self-defeating for two reasons; firstly because there is nothing legally objectionable to the form and context of the counter-claim and secondly because that does not enhance the Appellant’s deficit one bit having proceeded in the trial of the counter-claim without fling a defence to it.
The trial Court was therefore right in granting the reliefs sought in the 1st and 2nd Respondents’ counter-claim.
The Appellant’s Issues thus having all been resolved in the Respondents’ favour, the appeal ends as one without merit and is accordingly dismissed.
RESOLUTION OF THE CROSS-APPEAL
Yet again, there is a Cross-Appeal against the same judgment earlier considered in the main appeal (supra). It was filed by the 4th Respondent in the main appeal (the Cross Appellant herein) sequel to the leave granted him by this Court on the 18th of February 2021 to file same out of the prescribed period. In his Amended Notice of Cross Appeal filed later on the 16th of March 2021 but deemed properly filed and served on the 2nd of February 2022, the Cross Appellant too is by this Cross-Appeal complaining against parts of the judgment of the trial Court on four Grounds as follows:
“GROUND 1
The learned trial Judge misdirected himself when he held at pages 248-249 of the record as follows:
“…From the averments as contained in paragraphs 1-10 of the statement of claim, it is clear that the plaintiff’s claim touches on land precisely the right of occupancy over Plot 1301, Asokoro, Abuja. Therefore, without much ado, the provisions of POPA will not apply to this case. The objection raised on this point is overruled and dismissed.”
GROUND 2
The learned trial Judge erred in law when he failed/refused to hold that the cross-appellant is a bona fide purchaser for value without notice.
GROUND 3
The learned trial Judge erred in law when he refused to uphold the equitable defence of laches and acquiescence duly raised by the cross-appellant.
GROUND 4
The learned trial Judge misdirected himself when he held at pages 569-570 of the record as follows:
“It was not in contention the fact that revocation of title to land subject matter of this action was already effected before the land was re-allocated to Fatima Idris. In fact, it appears that the re-allocation took place a day later. Whilst this smacks of an underhand dealing, most unfair to the plaintiff, the fact is that his appeal for re-instatement to the deciding authority, the minister was refused. It is probable that indeed the certificate was withdrawn at the last minute for some reasons or the other as the plaintiff could have perhaps validly claimed acquiescence to their breach and ratification of same by the collection of the last payment made by the plaintiff after the revocation took place and may have been entitled to damages on this point.”
The respective Particulars enumerated under those Grounds are noted.
It is from these Grounds that the Cross Appellant has formulated four Issues for determination in his Brief of Argument filed on the 16th of March 2021 on:
“1. Whether or not the learned trial Judge was correct when he dismissed the 1st and 2nd respondents/cross-respondents’ preliminary objection on the ground that Public Officers Protection Act (POPA) does not apply because the claim of the appellant/cross-respondent touches on land. (Ground 1 of the notice of cross-appeal)
2. Whether or not the equitable defence of bona fide purchaser for value is available to the cross-appellant in the circumstances of this case. (Ground 2 of the notice of cross-appeal)
3. Was the cross-appellant entitled to the equitable defence laches and acquiescence in this case? (Ground 3 of the notice of cross-appeal).
4. Whether the finding by the learned trial Judge that the reallocation took place a day after revocation and that it smacked of an underhand deal is supported by the evidence led at the trial. (Ground 4 of the notice of cross-appeal).”
Ditto the Appellant (now Cross Respondent) in his Brief of Argument filed in this Cross appeal on the 25th of March 2021 on:
“(i) Does the Cross Appellant have any basis in law to successfully challenge the ruling of the learned trial Judge on 4th April 2009 to the effect that the 1st and 2nd Defendants’ preliminary objection based on the provisions of the Public Officers Protection Act could not be sustained because the Appellant/Cross Respondent’s claim touched on land – Ground 1.
(ii) Whether the trial Court erred in law in failing to declare the Cross Appellant a bona fide purchaser for value – Ground 2.
(iii) Was the Cross Appellant entitled to the equitable defence of laches and acquiescence? – GROUND 3
(iv) Whether the statement by the learned trial Judge that the re-allocation of the subject property to the 3rd Defendant one day after the purported revocation of the Appellant/Cross Respondent Certificate of Occupancy is supportable by the evidence at the lower Court – Ground 4.”
It is to be noted here that the 1st and 2nd Respondents in the main appeal found no reason to and thus have not joined howsoever in the challenge against any part of the judgment of the trial Court; which in effect implies their satisfaction with its entirety. Essentially therefore the Cross-Appeal is between the hitherto Appellant and 4th Respondent only.
As can be seen, the first Issues for both parties are the same and will accordingly be treated together herein. Basically, the arguments by both parties are on whether the trial Court was right in its ruling on the 1st and 2nd Respondents’ Preliminary Objection challenging the competence of the Cross Respondent’s suit on the ground that it was statute-barred. The trial Court held that being one on land, the Cross Respondent’s suit was not among the class of causes of action that could be statute-barred under the Public Officers Protection Act. The Cross-Appellant views that decision perverse because firstly the 1st and 2nd Respondents are public officers under the law and therefore entitled to the protection conferred on Public Officers under Section 2 (a) of the Public Officers Protection Act which limits the period of commencing actions against Public Officers to three months from the date of the occurrence of the act complained against. I note the allied argument for the Cross Appellant that he, just like the 1st and 2nd Respondents, is entitled to appeal on that ground although the decision of the trial Court on the issue was made long before he (the Cross-Appellant) was joined as a party in the suit.
The arguments of the Cross Respondent on this Issue are in the main that, as the Cross Appellant cannot be described as a person aggrieved by the decision complained of under the Constitution FRN 1999, as amended (apparently referring to its Section 241) and secondly that the decision of the trial Court that his suit was a land matter was a correct one. I note the decisions referred for the Cross Respondent more particularly those in Mobil Producing (Nig) Unlimited vs Monokpo (2003) 18 NWLR (Pt. 852), 346 on the first argument and Cil Risk & AM Ltd vs. Ekiti State Government (2020) 12 NWLR (Pt 1738), 203 on the second leg of his argument.
In my humble view, the first leg of the argument on whether the Cross Appellant is entitled to appeal against the interlocutory decision of the trial Court made before he was joined as party in the suit is, with respect, an unnecessary academic one. Firstly, as rightly submitted by the Cross Appellant’s learned counsel, from the date the Cross Appellant was joined as a party in the suit, he had become part of its entirety from commencement to conclusion. I wonder why the Cross Respondent did not question the Cross Appellant’s stiff challenge against the foundation of the suit when he questioned the competence and capacity of the Cross Respondent’s Attorney to seek for and be granted the reliefs sought in the Statement of Claim; to which, as the Cross Appellant claimed or admitted, was filed three years before he was joined as a party in the suit. Why was the Cross Appellant served with all the processes filed before he was made a party? Is it not in order to make him fully and effectually a party to the entire suit and its proceedings, so that he be bound by its outcome? Is he not a party that is in all respects affected directly by every printed pronouncement or even a casual remark by the trial Court in the course of the entire proceedings? More importantly, every step or proceeding in the suit prior to the Cross Appellant’s joinder were all directly to his benefit or doom. See Mallam vs. Mairiga (1991) 5 NWLR (Pt. 189) 114 at 127 -128.
All the foregoing considerations are aside from the constitutional right of the Cross Appellant to appeal the judgment as an aggrieved party to it. To posit as the Cross Respondent has done under this Issue is to render meaningless the very essence of joinder of parties in a proceeding. The Cross Respondent’s arguments on this leg of the Issue is devoid of any merit.
On the second leg of the Issue, I will say straight away that right from the Cross Respondent’s Writ of Summons and Statement of Claim all through the entire Statements of Defence of all the Respondents, the entire oral evidence and the exhibits admitted, including each paragraph in the bulky final Written addresses of the Parties and the judgment in the suit all had one thing as a target; namely whether the revocation of the Cross Respondent’s right and interest in land known as Plot No. 1301 Cadastral Zone 4, Asokoro District Abuja was valid. It was all about the ownership, title and interest in land. Being a claim on land, the Cross Respondent’s suit, as rightly held by the trial Court, is not caught up by the limitation period under Section 2 (a) of the Public Officers Protection Act.
The Supreme Court’s decision in (supra) Cil Risk & Asset Management Ltd vs. Ekiti State Government (supra) referred by the learned counsel for the Cross Respondent is drastically authoritative on this position. In effect, while the Cross Appellant is entitled to appeal against the ruling on the 1st and 2nd Respondents’ Preliminary Objection made before he was joined as a party, the merit of the appeal argued under this Issue is resolved in the Cross Respondent’s favour.
As reproduced earlier, the Cross Appellant’s second Issue is also the same with the Cross Respondent’s second Issue. Both are on whether the trial Court declared rightly or failed to declare the Cross Appellant a bonafide purchaser for value arising from the Cross Appellant’s counter-claim in its Relief No. (a) seeking from the trial Court for:
“A declaration that the 4th Defendant is a bonafide purchaser for value of Plot No. 1301 Asokoro District, Abuja without notice of any defect in title.”
The Appellant recalled how he conducted search at the 2nd Respondent’s land registry on the status of the Plot in question and was issued a clean bill of health in exhibit “M” indicating clearly that the land was free from any encumbrances before he proceeded to express interest in and ultimately purchased the said plot. As argued further, the Cross Appellant set about the development of the Plot from the scratch to completion, sinking in it about Four Hundred Million Naira. Although the plot and the massive building being put up on it by the Cross Appellant were within clear and conspicuous location, the Cross Respondent who must have seen what was going on there kept sealed lips and turned his face off the site all through the building project which commenced in June 2007; only to claim in his suit filed much later at the trial Court that the Cross Appellant’s title to the land in question was invalid. These facts were not effectively controverted. In addition to his defence to the suit, the Cross Appellant counter-claimed also for inter alia a declaratory relief that he was in the circumstance a bona fide purchaser for value of the land in issue. According to the Cross-Appellant, although the trial Court granted the reliefs he counter claimed, it however failed to pronounce him as a bonafide purchaser for value for reasons the Cross Appellant found perverse. He is therefore seeking that those reasons be set aside and he be fully declared as a bonafide purchaser for value. This is only a summary of his argument under this Issue.
For the Cross Respondent, it is, as he argued, very strange that the Cross Appellant is cross appealing against the particular decision of the trial Court which was in his favour, unless if he is seeking that his own victory in that decision be upturned. It is argued further that the decision of the trial Court on the relief sought by the Appellant is plain enough and in his favour. In essence, the Cross Appeal on this Ground and as argued under this Issue is baseless. This is only a summary.
I have looked at all the three reliefs sought by the Cross-Appellant in the counter-claim, found at page 312 of the Record. In particular, the first relief (supra) is the subject of the arguments under this Issue. Although the Cross Appellant did not clearly identify precisely which particular, specific portion of the decision or the page of the portion in the Record he is complaining about, his arguments are in my view concerned with the following portion of the judgment found at page 570 of the Record:
“There are issues concerning the question of bona fide of the 4th as regards his claimed ignorance of the proposed contentious matter. I am not satisfied that he had no notice however of the presence of the plaintiff but hold that he is the owner of the property by the Deed of Assignment admitted before the Court based on the valid re-issued Certificate of Occupancy of the previous owner.
In essence the counter claims are successful to the extent that the revocation was lawful and the title to the land had been transferred.
In conclusion, a Declaration is accordingly made that the refusal, neglect and failure of the holder of the Right of Occupancy and/or his attorney/agent to develop the said plot within the stipulated terms in the Certificate of Occupancy is against the spirit and intendment of the Land Use Act.
All other declarations sought by the 1st and 2nd defendant will not be made by this Court.
A declaration that the 4th Defendant is the purchaser and owner of Plot 1301 Asokoro District, Abuja and is entitled to a Right of Occupancy over Plot 1301 Cadastral Zone A4. Asokoro, Abuja.
In conclusion, the plaintiff’s claim fails before this Court and is accordingly dismissed. The counter claims are successful only to the extent declared above.”
Straight away, I will say, with utmost respect to the learned trial Judge (now JCA) that the views “concerning the question of bonafide of the 4th as regards his claimed ignorance the proposed contentions matter “…that he had no Notice however of the presence of the Plaintiff…” are neither clearly supported by any credible evidence led in the proceedings nor deducible from any portion of the pleadings in the manner expressed in the concluding part of the judgment here. Indeed, it is, with profound respects, anomalous to hold in one breath that “the revocation was lawful and the title to the land had been transferred”, meaning that the Cross Appellant thus purchased the land unencumbered of any valid lawful claim by the Cross Respondent or any other persons while the views expressed by the Court just a moment earlier suggests the contrary. The two cannot co-exist in the same judgment. There being no basis for those views and the trial Court having on the other hand reached a sound finding that the Cross Appellant is entitled to the Relief sought, there was no need for the qualification or proviso expressed in granting the Relief. What is more, the Cross Respondent, as explained earlier, is indeed on the same page with Cross-Appellant on the specific order made by the Court in the Cross Appellant’s favour. Indeed, the Cross Respondent strongly supports the Order as made by the trial Court; albeit mockingly.
Consequently, the view expressed by the trial Court “concerning the question bonafide of the 4th as regards his claimed ignorance of the proposed contentions matter, I am not satisfied that he had no notice however of the presence of the Plaintiff” are perverse and have occasioned the Cross Appellant a miscarriage of justice. Those views are accordingly set aside. The failure of the trial Court to grant the full Relief No. “(a)” on the Cross Appellant’s counter-claim being a direct consequence of the erroneous views expressed by the trial Court on same is consequentially also upturned by granting the Cross Appellant the Relief No. “(a)” for:
“A declaration that the 4th Defendant is a bonafide purchaser for value of Plot 1301 Asokoro District, Abuja without notice of any defect in title.”
The Cross Appellant’s third Issue is on whether he was entitled to the equitable defence of laches and acquiescence in the case leading to this appeal. It is also the Cross Respondent’s Issue and both will thus be treated together.
The Cross-Appellant has contended here that after pleading laches and acquiescence and detailing the Particulars thereof in paragraphs 5 (a)-(d) and 6 of his counter-claim in the trial, he led credible evidence to prove his entitlement to both reliefs but which the trial Court declined to grant. That is the summary of his arguments.
For the Cross Respondent however, the Cross Appellant’s facts were neither credible nor proved and worse still, as argued further, there is nothing to show credibly that the Cross Respondent was in any way guilty of laches or acquiescence.
There is however yet another but bigger contention by the Cross Respondent when he submitted that the claim for laches and acquiescence as doctrines of defence cannot be used by a Plaintiff or as in this instance. Counter Claimant/Cross-Appellant.
There is also another challenge raised half-heartedly by the Cross Respondent that the counter-claim was incompetent for the failure of the Cross Appellant to pay filing fees on it. How and from where the Cross Respondent got this unsubstantiated fact and the basis of the claim are all only known to Cross Respondent. Was it raised before the trial Court? What is the trial Court’s decision or even pronouncement on it? No answer! This claim is simply time wasting. It is thus no wonder that the Cross Appellant ignored this claim.
However, I do not think the Cross-Appellant, with respect, acted wisely by ignoring also the Cross Respondent’s challenge that the Cross Appellant as Plaintiff so to speak in the counter-claim is not entitled to invoke the doctrines of laches and acquiescence being equitable defences available to a Defendant only. I agree with the Cross Respondent here. Laches and acquiescence are tools of Defence only which, if the Cross Appellant had considered carefully, he would have validly utilized in his Statement of Defence. In Oyedele vs. Ogun & Anor (1975) LPELR-2866 (SC) the Supreme Court held thus:
“…long possession, acquiescence, laches, etc, have always been known as defences or rather weapons of defences and not of offence…”
Just as reasoned by the Apex Court, we are therefore unwilling to subscribe to any views which seek to give these weapons the character of anything but defences; which results in the Cross Appellant’s third Issue resolved in the Cross Respondent’s favour.
The Cross Appellant’s last Issue, as may be recalled, is whether the remark or finding of the trial Court that the reallocation of the Cross Respondent’s Certificate of Occupancy a day after its revocation smacks of underhand deal is supported by evidence.
Let me point out here that it was the trial Court that had to contend with the suit on all its pleadings, interlocutory motions, oral evidence, exhibits and the analysis of each of the bulky processes and in so doing, observing also the demeanor of each witness; which it did for two years and two months in the case at hand. Surely, one must in all humility acknowledge the peculiar privilege of the trial Court in forming impressions on facts, evidence, witnesses and indeed even innuendos of counsel for the parties. Generally, these are impressions derived from a sustained, careful study and observation of each of the elements in the trial. Any impression expressed by a trial Court is a product of this exercise. The trial Court’s remark that the exercise of the revocation, though perfectly valid under the law, smacks of, as it viewed it, underhand deal is its considered view. Surely, one must not begin to ask the trial Court why it formed that view or impression, instead of glorifying the 1st and 2nd Respondents who are largely the object of the trial Court’s remark; but who, by the way, saw no reason to blink an eye over it.
Secondly, the Cross Appellant has not even as a passing remark complained or hinted that the remark or finding he is now complaining about has occasioned a miscarriage of justice on him; nor has he also argued that the decision of the trial Court would be different if the underhand deal” remark is upturned or even substituted with “holy, deal”. His only grouse with the phrase is that after evaluating the evidence on the issue, the learned trial Judge, in sincerity of purpose, simply stated her candid views which are now the subject of subtle attack by the 4th Respondent/Cross Appellant without a word of support or disapproval by the 1st and 2nd Respondents who are clearly the arrow head of the trial Court’s remark or finding.
The Issue is, with utmost respect, not well made out and is in consequence resolved against the Cross Appellant.
In the manner herein earlier considered and determined, the appeal is adjudged unmeritorious and accordingly dismissed. The Cross Appeal succeeds in part in respect of Ground 2 of the Notice of Cross Appeal and in consequence, the Cross Appellant’s prayer for
“A declaration that the 4th Defendant is a bonafide purchaser for value of Plot 1301 Asokoro District, Abuja without notice of any defect in title.”
is hereby granted and so ordered.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading the draft copy of the judgment just delivered by my learned brother, Isa Bature Gafai, JCA.
I am in agreement with the reasoning and conclusion that the appeal lacks merit and must be dismissed. I accordingly, for the same purpose do hold that the appeal is lacking in merit and it is hereby dismissed by me.
For the cross-appeal, I do see from the facts before us the need to allow the cross-appeal partially. I equally have no reason to depart from the lead judgment in this appeal. The cross-appeal is partially allowed and I abide by the consequential orders made in the lead judgment.
DANLAMI ZAMA SENCHI, J.C.A.: I was in conference with the panel of Justices that heard this appeal. I was also opportuned to read in draft, the lead judgment of my learned brother, ISAH BATURE GAFAI, JCA just delivered. The lead judgment substantially captured all my views expressed during the conference and I therefore agree with the finding and conclusion reached therein in the lead judgment that this appeal lacks merit and it is accordingly dismissed by me as well.
I want to add however that whenever an objection or challenge is made on the legal status of an incorporated company, the law is that the Appellant as in this case has the onerous responsibility of adducing evidence by the production of certificate of incorporation to establish its legal personality. See the cases of THE INCORPORATED TRUSTEES OF THE BROTHERHOOD OF CROSS AND STAR V MR E.T NKEREUWEM & ORS, (2018) LPELR-44087 (CA), J. SUNKANMI DAIRO & ORS V THE REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS, (2017) LPELR-42573(SC). In the case of MR ADEOYE MAGBAGBEOLA V MR TEMITOPE SANNI, (2005) LPELR-1815, the Supreme Court of Nigeria held thus:-
“The best evidence of incorporation is the production of the certificate of incorporation.”
The Appellant having failed to prove its legal status or personality by the production of certificate of incorporation, I hold the view that the learned trial Judge was right when it held that the Appellant failed to prove its legal status and capacity to seek for the reliefs claimed in the suit and I so hold. On the whole, the appeal as I said earlier, lacks merit and it is dismissed.
In respect of the counter-claim, the Appellant did not file any defence to the counter-claim.
In the case of PRINCE MATT OWOBU V MRS ALICE OSIFO (2017) LPELR-42436, this Court held as follow:-
“The position of the law is that where a plaintiff fails to file a defence to a counter-claim, which is a separate action, the effect is exactly the same as that of a defendant in a normal action who fails to file a statement of defence. See also OKE v AIYEDUN (1986) 2 NWLR (pt 23) 548.
Thus, based on the evaluation of evidence in support of the counter-claim, the learned trial Judge was right when it granted the reliefs sought by the 1st and 2nd Respondents’ counter-claim.
In sum, the decision of the trial Court in suit No. FCT/HC/CV/188/2007 delivered on 9th March, 2012 by BANJOKO, J (as he then was) is hereby affirmed.
CROSS-APPEAL
I have had the privilege of reading in draft, the lead judgment in the cross-appeal by my learned brother, ISAH BATURE GAFAI, JCA and I agree with the finding and conclusion arrived thereat that this cross-appeal succeeds in part and it is ordered as follows:-
“A declaration that the 4th defendant is a bonafide purchaser for value of plot 1301 Asokoro District, Abuja without notice of any defect in title”.
Appearances:
CHIDOZIE OGUNJI, ESQ., with him, C. OKAFOR. For Appellant(s)
R. J. GOYOI, ESQ., with him, F. C. Obiamalu – for 1st and 2nd Respondents
CHIDI NWANKWO, ESQ. – for 4th Respondent. For Respondent(s)