CIKA v. AKANSONS EKIEL ENT. LTD & ORS
(2022)LCN/16297(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, February 08, 2022
CA/A/745/2018
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
AMBASSADOR ABUBAKAR CIKA APPELANT(S)
And
1. AKANSONS EKIEL ENT. LIMITED 2. THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (FCDA) 4. FELICIA BARNABAS 5. KYAUTA DANIEL 6. MAHAMMED A. GORONYO 7. PERSON UNKNOWN RESPONDENT(S)
RATIO:
A SIGNATURE BY AN UNKNOWN PERSON ON BEHALF OF ANOTHER IS AN INCOMPETENT SIGNATURE
In respect of issue 5, counsel submitted that the learned trial Judge acted rightly when he held that the Statutory Right of Occupancy was an invalid document as it was signed by an unknown person as it is a settled law that a signature by an unknown person on behalf of another is an incompetent signature and renders the document signed through that process incompetent. He cited the case of Orizu v. Uzoegwu (1999) 6 NWLR (Pt. 605) 32 in support of his assertion. Counsel urged this Court to reject Exhibit M1 and hold same to be incompetent. Counsel referred to the case of Hon. Engr. Bako Sarai & Anor v. Inusa Haruna &Ors (2008) All FWLR (Pt. 432) 1149 CA at 1162 Par G-H where it was held that a signature by an unknown person on behalf of another is an incompetent signature. Counsel argued that the evidence of DW3 that the Appellant attempted to smuggle into the proceeding to validate the incompetent signature at the trial Court has no leg to stand because it is evidence on facts that were not pleaded by the Appellant (3rd Defendant) at the trial Court and cannot be brought to this Court forconsideration. Counsel urged this Court to discountenance same as evidence led in respect of issues that are not pleaded will go to no issue. He cited the case of George v. Dominion Flour Mills Ltd (1963) 1 ANLR 71 in support of his submission. KENNETH IKECHUKWU AMADI, J.C.A.
IT IS NOT THE PLACE OF THE COURT TO COMPEL A DEFENDANT TO COME AND PUT ACROSS HIS DEFENCE
See: MILITARY GOVERNOR LAGOS STATE V. ADEYIGA (2001) FWLR (Pt. 83) 2137 at 2155-2156 where the Court held as follows:
“Where after both parties to a dispute have been duly notified of the hearing date and a party for no justifiable reason decides to opt out of the proceeding, the case of the other person once it is not discredited in any legal way should be the case to be considered on merit. The intention of the other party as to its refusal to take part is not business of the Court”.
See also Newswatch Comm. Ltd v. Atta (2006) 12 NWLR (Pt. 993) 144 at 175 paragraph F where the Supreme Court held as follows:
“But where as in the instant case, a party deliberately refused or neglect to lay his case across the table despite all the opportunities granted him by the Court to do so, up to the time judgment was delivered, that party cannot be heard to complainabout the trial being unfair to him”.
It was further held at page 179 of the same law report as follows:
“A party who has been afforded the opportunity to put across his defence and who fails to take advantage of such opportunity cannot later turn round to complain that he was denied a right of fair hearing. Surely, it is not the place of the Court to compel a defendant to come and put across his defence”. KENNETH IKECHUKWU AMADI, J.C.A.
THE LATIN MAXIM OF NEMO DAT QUOD NON HABET
See Adike v. Obiareri (2002) 4 NWLR (Pt. 758) 537 CA where the Court held as follows:
“It is trite that where twopeople purchase land from a common vendor, the first in time get title to the land. When the 1st and 2nd Defendants allocated Park No. A03662A the subject matter of this case to the Plaintiff, the 1st and 2nd Defendants ceased to be in possession when the plaintiff paid the necessary fees for the Park. There is nothing to allocate to the 3rd-7th Defendants as the 1st and 2nd Defendants are no longer in possession of Park No. A03662A.”
See Egbuta v. Onuna (2007) 10 NWLR (Pt. 1042) 298 CA where the Court held as follows:
“It is trite law that no one can validly give what he does not have. This is expressed in latin maxim of nemo dat quod non habet. The maxim is most applicable where a party who does not have something purport to sell it” KENNETH IKECHUKWU AMADI, J.C.A..
THE LAW DEMAND THAT A GOVERNOR REVOKING A RIGHT OF OCCUPANCY FOR PUBLIC PURPOSES SHOULD ACCORD ALL THOSE AGGRIEVED BY THE REVOCATION FAIR HEARING
See Macfoy v. UAC Ltd (1996) 3 All ER 1169 where the Court held as follows:
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It isautomatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse”.
See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 where the Supreme Court held this as follows:
“Prudence and the law demand that a Governor revoking a right of occupancy for public purposes should accord all those aggrieved by the revocation fair hearing as provided by Section 33(1) of the 1979 Constitution if the revocation is for breaches of terms of the certificate of occupancy”.
The fundamental rights of the plaintiff had been affected by the re-allocation of Park No. A03662A to 3rd-7th Defendants. The 1st and 2nd Defendants failed to abide by audi alteram partem which rendered any title documents issued to 3rd-7th Defendants invalid. See Ceekay Traders Ltd v. Genera! Motors Co. Ltd (1992) 2 NWLR (Pt. 222) 132 SC. KENNETH IKECHUKWU AMADI, J.C.A.
SERVICE IS A PRE-CONDITION TO THE EXERCISE OF JURISDICTION BY THE COURT
In Uwemedimo v Mobil Producing (Nig.) Ltd (2022) 2 NWLR (Pt. 1813) 53 at 73 the Supreme held thus: “Service is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the principle that a party should know or be aware that there are pending proceedings against him so that he can prepare a defence or take steps to participate in one way or another. KENNETH IKECHUKWU AMADI, J.C.A.
NON SERVICE OF PROCESS ON A PARTY WILL RENDR PROCEEDINGS ON SUCH UNSERVED PROCESS NULL AND VOID
If after service, he elects not to take part in the proceedings by filing any processes in response, the law will assume and rightly too, that he either has no defence or no interest in the proceedings. But where a defendant is not aware of the pending proceedings because he was not served, the proceeding held outside him will be null and void. Thus, non-service of process on a party properly so-called will render proceedings on such unserved process, null and void. See Tsokwa Motor (Nig.) Ltd. v. U.B.A. Plc. (2008) LPELR-3266(SC); (2008) 2 NWLR (Pt. 1071) 347; Eimskip Ltd. v. Exquisite Ind. (Nig.) Ltd. (2003) LPELR-1058(SC); 4 NWLR (Pt. 089) 88.” Per Oseji J.S.C., of blessed memory paras. B-E. KENNETH IKECHUKWU AMADI, J.C.A.
KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): INTRODUCTION
This is an appeal filed against the judgment of the F.C.T High Court, Abuja, in suit no. FCT/HC/CV/3008/2011; Coram: Hon. Justice S. E. Aladetoyinbo, delivered on 22nd day of March, 2018.
The 1st Respondent as plaintiff at the lower Court through an amended statement of claim filed on 22nd March, 2017 claimed from the Defendants jointly and severally as follows:
a. A declaration that the interest of the plaintiff on Park No. A03662A FMG Park and Gardens situate at No. 662 Arochukwu Street, off OsexGarki II, Abuja is subsisting and the 1st and 2nd Defendants cannot allocate same to the 3rd, 4th, 5th, 6th and 7th defendants or any other person whatsoever.
b. A declaration that any purported allocation made encroaching or covering the Park or any position of it in favour of the 3rd to 7th Defendants or any other person is illegal, null and void.
c. An order of injunction restraining the defendants either by themselves, agents, privies, assigns or any other person claiming through them, from trespassing or doing anything on the park.
d. Adeclaration that the entry by the 3rd defendant or agents of the 1st and 2nd defendants to the park was wrongful and illegal.
e. A declaration that the letter of withdrawal of letter of intent to own and develop park No. A03662A dated 9th March, 2011 issued after the institution of this suit is contemptuous, illegal, null and void.
f. The sum of N20,000,000.00 (Twenty Million Naira) only as damages.
OR IN THE ALTERNATIVE:
a. An order of specific performance compelling the 1st and 2nd defendants to issue and execute a lease agreement forthwith with the plaintiff in respect of Park No. A03662A FMG Park and Gardens situate at No.662 Arochukwu Street, off OsexGarki II, Abuja as the plaintiff had fulfilled all the conditions precedent for its allocation based on the letter of intent issued by the Parks and Recreation Department, Abuja Metropolitan Management Council, that is an agent to the 1st and 2nd Defendant and accepted and acted on by the plaintiff.
b. A declaration that any purported allocation made encroaching or covering the park or any other portion of it in favour of the 3rd to 7th defendants or any other person is illegal,null and void.
c. An order of injunction restraining the defendants either by themselves, agents, privies, assigns or any other person claiming through them from trespassing or doing anything on the park.
d. A declaration that the letter of withdrawal of letter of intent to own and develop Park No. 662A A03 dated 9th March, 2011 issued after the institution of this suit is contemptuous, illegal, null and void.
e. The sum of N20,000,000.00 (Twenty Million Naira) only as damages.
The 3rd defendant now the Appellant counter-claimed thus:
a. A DECLARATION that Plot No. 2292 Cadastral zone A03 Garki II, FCT Abuja, measuring about 1572.28sqnn belongs to the 3rd defendant.
b. A PERPETUAL INJUNCTION restraining the Plaintiff whether by themselves, by their agents, privies and/or any other persons that may act in her name and on their behalf from trespassing or in any manner interfering with rights and interests of the 3rd defendant over Plot 2292 Cadastral zone, A03 Garki II, FCT Abuja.
c. The sum of N50,000,000.00 (Fifty Million Naira) only as damages
d. Cost of this action.
BRIEF FACTS
The brief facts ofthis case leading to this appeal is that Mrs. Eno Umoessien had a lease or allocation of the land the subject matter of this suit in December 7th, 2000 to be used or developed as a park. Later, she incorporated the 1st Respondent and applied to Abuja Metropolitan Management Council (AMAC) to continue using the place now in the name of the company which was granted as Park No A03 662A measuring 1.2 Hectares through exhibit D headed “Letter of interest to Develop, manage and operate Designated Park Site in the FCT.”
She paid the bills issued to her by AMMAC exhibits A and B, developed the park and continued in possession thereof. However, sometime in 2008 she noticed that the Park has been subdivided and demarcated into several plots with beacons buried and demarcating the land into various portions or parcels and purportedly re-allocated by issuing them with statutory Certificate of Occupancy over the various portions to individuals including the 3rd-7th defendants, Hence this suit.
The trial Court gave judgment in favour of the 1st Respondent, held that the Statutory Right of Occupancy issued to the 3rd Ambassador Abubakar Cika, including thatof the 4th to 7th defendants are null and void. The Court granted all the alternative prayers of the plaintiff except prayer (e) which was dismissed because same is without merit because the plaintiff did not state the type of damage it is asking for or informed the Court whether it had suffered any loss. Finally, the Court held also that the counter-claim of the 3rd defendant is incompetent and lacking in merit and dismissed the said counter-claim. (see pages 1440 to 1493 of the Record of Appeal for the judgment of the trial Court).
Aggrieved by the judgment, the 1st defendant now Appellant appealed against the judgment. Also, the 6th Defendant also appealed against the judgment and titled his appeal as cross appeal. By his Amended Notice of Appeal filed on 13/3/2020 the Appellant raised 26 (Twenty-six) grounds of appeal as follows:
GROUNDS OF APPEAL
Ground 1:
The learned trial Judge erred and made a wrong finding of facts which thereby occasioned a miscarriage of justice when he held at pages 10-11 of the judgment:
“The plaintiff adopted three different witness statements on oath dated 13th April, 2015, 26th April, 2016 and22nd day of March, 2017.
The plaintiff is a Limited Liability Company and PW1 Mrs. Eno Umoessien is the Managing Director of the Plaintiff, she was earlier allocated the said Park Green Area on the 7th day of December 2000 and started operating same since then, but there was a change in government policies, that parks in Abuja should only be operated by limited liability company. The witness in compliance with the directive incorporated the plaintiff and applied for retention allocation of the park for continuation of her business in the name of the plaintiff. The application of the plaintiff was made to Abuja Metropolitan Management Council, an agent of the 1st and 2nd Defendants in charge of parks in Abuja, FCT.”
GROUND 2:
The learned trial Judge erred and made a wrong finding of facts which thereby occasioned a miscarriage of justice when he held that Exhibit “F” was paid for by the 1st Respondent vide Exhibits “A” and “B”.
GROUND 3:
The learned trial Judge erred in law when he assumed jurisdiction over the suit of the 1st Respondent at the lower Court after having found that one of the claims of the 1st Respondent at thelower Court is “(e) A declaration that the letter of withdrawal of letter of intent to own and develop No. 662A A03 dated 9th March, 2011 issued after the institution of this suit is contemptuous, illegal, null and void”,and when the learned trial Judge even made a finding of fact gleaned and garnered from evidence and pleadings that “on the 9th day of March 2011, when this suit had already been filed, Abuja Metropolitan Management Council wrote the plaintiff Exhibit “C’ withdrawing the letter of intent, Exhibit ‘D’
GROUND 4:
The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when he rejected the Certificate of Occupancy of the Appellant and at page 18 of the judgment held:
“The 3rd defendant was issued with Certificate of Occupancy by the 1st Defendant on the 8th day of March 2011 which was tendered in evidence but rejected because same was made during the pendency of this suit precisely 8th day of March 2011 but operate retrospectively when the Right of Occupancy was issued to the 3rd Defendant 14th day of January 2010. By those reasons, the Certificate of Occupancy issued to the 3rd Defendant is invalid;”And at page 35 of the judgment held further:
“…The certificate of occupancy of the 3rd Defendant was equally tendered but rejected because it was signed and obtained during the pendency of this suit.”
GROUND 5:
The learned trial Judge erred in law when he wrongly reproduced at pages 20-22 of the judgment the content of Exhibit D.
GROUND 6:
The learned trial Judge erred in law when at page 22 of the judgment he said, document headed letter of intent was admitted as Exhibit D2 and cited a case he called “BPS CONSTRUCTION & ENGR. CO. LTD V. FCDA (2017) 10 NWLR (Pt. 1572) 1” which thereby occasioned a miscarriage of justice.
GROUND 7:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held at page 23 of the judgment, thus:
“Exhibit D although stated to be letter of intent appears to be more than letter of intent. It is a conditional contract asking the plaintiff to fulfill certain terms and conditions before same can be binding on the 1st and 2nd Defendant (sic). Exhibit D is portrayed to be a letter of intent, it is not a letter of intent. It is aconditional contract explaining conditional (sic) before contract…”
GROUND 8:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held at page 25 of the judgment that “Exhibit D commenced as follows:”
GROUND 9:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held at page 25 of the judgment:
“The first condition asking the plaintiff to commence negotiation with it (sic) financiers for immediate site preparation which plaintiff had complied with as revealed in the evidence of PW1 that money was borrowed from the bank to develop the Park A03662A”.
GROUND 10:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held at page 25 of the judgment:
“The second condition asking the plaintiff to submit detailed technical design proposal was complied with by the plaintiff as indicated by Exhibit I”.
GROUND 11:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held at pages 25-26 of the judgment as follows: “The 3rd condition is an obligation from the 1st and 2nd Defendants to give the plaintiff lease agreement upon arrival of it submitted design proposal Exhibit 1 and upon payment of all necessary fees. The plaintiff had submitted detailed technical design of the park to the 1st and 2nd Defendants Exhibit I with a covering letter which indicated that the 1st and 2nd Defendants received Exhibit I by acknowledgment of the covering letter admitted as Exhibit J, same was received on the 4th day of October 2010, billing demand notices were served on the plaintiff dated 8th December 2009 and 27th September 2010. All amounts as contained in the two billing demand notices were fully paid by the plaintiff The two billing demand notices were admitted as Exhibit E and F while the receipts of payment issued by the 1st and 2nd Defendants to the plaintiff in respect of Exhibits E and F were admitted in evidence as Exhibits A, B. The plaintiff submitted detailed technical design and paid all necessary fees but the 1st and 2nd Defendants refused to release lease agreement which in the Court’s opinion may be statutory right of occupancy or certificate of occupancy, the two canalso be referred to as lease agreement. The lease in the certificate of occupancy or right of occupancy is always 99 years as contained in the Land Use Act. Ordinary lease agreement may not be up to 99 years. The 1st and 2nd Defendants has a duty to comply with the Land Use Act by granting 99 years lease to the plaintiff in respect of Park No. A03662A. See Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 at 647 where the Supreme Court held as follows:
“It is trite that once the law has prescribed a particular method of exercising a statutory power any other method of exercise of it is excluded”.
GROUND 12:
The learned trial Judge erred and made a wrong finding of facts which occasioned a miscarriage of justice when he held at page 27 of the judgment:
“The 4th condition is that the park be developed and completed according to the approved technical proposal within one (1) year from the date of approval. Evidence from the 1st and 2nd Defendants’ witness DW1 confirmed that the park had been fully developed. The receipts issued to the plaintiff by the 1st and 2nd Defendants Exhibit (sic) A & B clearly stated that the payment was for operationand uses of the said park”.
GROUND 13:
The learned trial Judge erred and made a wrong finding of fact which was misdirected and thereby occasioned a miscarriage of justice when he held at page 28 of the judgment thus;
“The 5th condition stipulated that on completion of development of the park or green area, the general public should have unhindered access to its usage, apart from the fact that the park is open to the public, PW1 operates a restaurant in the said park. It is purely a public park”.
GROUND 14:
The learned trial Judge erred in law and misapplied the law which thereby occasioned a miscarriage of justice when he held at pages 28 30 of the judgment:
“The sixth condition stated that any contravention of the 1st-5th conditions can result in the revocation of the allocation, there is no evidence before the Court that the plaintiff contravened any of the five conditions stated in Exhibit D. if the plaintiff did not contravene any of the conditions, why did 1st and 2nd Defendants decide to constructively revoke the plaintiff’s Park No. A03662A. The letter of withdrawal of Park No. A0362A written by the 1st and 2ndDefendants to the plaintiff (Exhibit C) was written and served on the plaintiff on 9th day of March, 2011 when this suit had already commenced. Section 83(3) of the Evidence Act 2011 had been violated. Exhibit C remains inadmissible.
… although the Court admitted Exhibit C in evidence which was made during the pendency of this suit by the 1st and 2nd Defendants who are interested parties, the Court has a duty not to act on Exhibit C. The reason given in Exhibit C for the withdrawal of Exhibit D, the Court will not take cognizance of same. See Ohikade v. Alade (1976) 2 SC 83 where the Court held as follows;
“A Court is expected in all proceedings before it to admit and act only on evidence which is admissible in law (i.e. under the Evidence Act or any relevant law in a particular case of (sic) matter) and so if a Court should inadvertently admit inadmissible evidence it has the duty not to act on it”.
GROUND 15:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held that by Exhibits A, B, E, F, J, & I, the 2nd and 3rd Respondents have waived the issue of time for the performance of Exhibit Dciting N.B. C. I v. Integrated Gas (Nig) Ltd (2005) 4 NWLR (Pt. 916) 617 at 643.
GROUND 16:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held at pages 32-33 of the judgment thus;
“By the wordings of Exhibit D, the lease has commenced subject to five conditions listed in Exhibit D. It reads as follows:
“l wish to convey the approval of the FCT Administration for the leasing of Park No. A03662A. (sic)
The word leasing in Exhibit D refer to the Right of Occupancy or certificate of occupancy which can also be referred to as lease for 99 years. See Osho v. Foreign Fin. Corp. (1991) 4 NWLR (Pt. 184) 157 at 167 where the Supreme Court held as follows:
“The interest of a lease in land is not exactly the same as that of a holder of a right of occupancy. A holder of a right of occupancy enjoys a larger interest than a holder of a lease, although the two interests enjoy a common denominator which is a term of year”.
The plaintiff had fulfilled all the conditions contained in Exhibit D, letter of intent which the Court described as conditional contract including payment of allnecessary fees, it had also completed the Park with the money borrowed from the bank. From Exhibit 1, the building the plaintiff constructed in the said park is visible. DW1 stated clearly under cross-examination that the park No. A03662A belonging to the plaintiff had been completed and in operation. The only thing remaining in the contract is for the 1st and 2nd Defendants to issue Right of Occupancy to the plaintiff, the absence of Right of Occupancy which Exhibit D refers to as lease agreement cannot vitiate the contract. The Court will rightly order for specific performance”.
GROUND 17:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held at pages 34-35 of the judgment:
“The issuance of Billing Demand Notices Exhibits E & F by the 1st and 2nd Defendants and the subsequent payment made by the plaintiff as reflected in Exhibits A and B amount to approval and rectification of technical design, Exhibit I by the 1st and 2nd Defendants.
In the said receipt, Exhibit B, the payment was for operation and uses of Park 662A. Exhibit D, F, A and B are indications that the plaintiff hadstarted operating and using Park No. A03662A”.
GROUND 18:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held at pages 35-36 of the judgment:
“The Court had examined the Statutory Right of Occupancy of the 3rd Defendant, Exhibit M1, the person that signed Exhibit M1 on behalf of Minister of Federal Capital Territory did not put his name, a signature without a name is incurably bad therefore, Exhibit M1, the Right of Occupancy of the 3rd Defendant is incompetent and worthless. In other words, no statutory right of occupancy was issued to the 3rd Defendant”.
GROUND 19:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held at pages 37-39 of the judgment thus:
“Assuming that Exhibit M1 the Statutory Right of Occupancy which this Court have declared as invalid is valid, in other words, let us assume that the Statutory Right of Occupancy of the 3rd Defendant Exhibit M1 is valid, Park No. A03662A allocated to the plaintiff by Exhibit D is Parks and Gardens or Green Area, there is no evidence before the Court that same had beenredesigned to residential area or that the Minister had approved that the land use and purpose clause of Park No. A03662A had been changed from recreation to residential, no such evidence. DW1 who gave evidence on behalf of the 1st and 2nd Defendants confirmed to this Court that Parks and Gardens or Green Areas cannot be redesigned as residential area except with the permission of Minister of F.C.T and Federal Executive Council. There is no evidence that the Minister of F.C.T or the Federal Executive Council approved Park No. A03662A to be changed to residential, the issuance of Statutory Right of Occupancy to the 3rd Defendant Exhibit M1 including other defendants is illegal and void.
There was no notice to the staff before the Statutory Right of Occupancy of the 3rd Defendant Exhibit M1 was issued including Statutory Right of Occupancy of 4th-7th Defendants which amounts to constructive revocation of Park No. A03662A from the plaintiff without hearing from her and without giving her fair hearing.
For the 1st and 2nd Defendants to allocate Park No. A03662A belonging to the plaintiff to the 3rd to 7th Defendants without notice to the plaintiff andwithout giving the plaintiff fair hearing such statutory allocation issued to 3rd-7th Defendants are invalid. The fundamental rights of the plaintiff had been affected by the re-allocation of park No A03662A to 3rd-7th Defendants. The 1st and 2nd Defendants failed to abide by Audi (sic) alteram partem which rendered any title documents issued to 3rd-7th Defendants invalid. See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 where the Supreme Court held as follows:
“Prudence and the law demand that a Governor revoking a right of occupancy for public purposes should accord all those aggrieved by the revocation fair hearing as provided by Section 33(1) of the 1979 Constitution if the revocation is for breaches of terms of the Certificate of Occupancy”.
The fundamental rights of the plaintiff had been affected by the re-allocation of Park No. A03662A to 3rd-7th Defendants. The 1st and 2nd Defendants failed to abide by Audi Alteram Partem which rendered any title documents issued to 3rd – 7th Defendants invalid.
GROUND 20:
The learned trial Judge erred in law and which thereby occasioned a miscarriage of justicewhen he held at page 40 of the judgment, thus:
“The plaintiff including PW1 and other promoters of the plaintiff are using park No. A03662A as their business place putting food on their table from the said park. It would amount to infringement of the right to life of the plaintiff and its promoters for 1st and 2nd Defendants to allocate their means of livelihood (Park A03662A) to 3rd-7th Defendants without notice and without compensation”.
GROUND 21:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held at page 41 of the judgment, thus:
“The plaintiff and the 3rd-7th Defendants got their title over the same land from 1st Defendant. The Plaintiff being the first in time has a better title than 3rd-7th Defendants.
GROUND 22:
The learned trial Judge erred in law and which thereby occasioned a miscarriage of justice when he held at page 42 of the judgment, thus:
“When the 1st and 2nd Defendants allocated park No. A03662A the subject matter of this case to the plaintiff the 1st and 2nd Defendants ceased to be in possession when the plaintiff paid the necessary fees forthe park. There is nothing to allocate to the 3rd-7th Defendants as the 1st and 2nd Defendants are no longer in possession of park No. A03662A.
See Egbuta v. Onuna (2007) 10 NWLR (Pt. 1042) 298 CA where the Court held as follows:
“It is trite law that no one can validly give what he does not have. This is expressed in latin maxim of nemo dat quod non habet. The maxim is most applicable where a party who does not have something purport to sell it”.
GROUND 23:
The learned trial Judge erred in law and which thereby occasioned a miscarriage of justice when he held at page 42 of the judgment, thus:
“The 3rd-7th Defendants hove constructive notices and imputed notices of the plaintiff interest in park No. A03662A before same was allocated to them by the 1st and 2nd Defendants, therefore they are not bonafide or innocent purchasers for value, they cannot benefit from the transaction.Universal Vulcanizing Nig. Ltd v. I.U.T.C. (1992) 9 NWLR (Pt. 266) 388 at 393 where the Court held as follows:
“A party who purchases a property with the knowledge of the equity of an earlier purchaser of the same property cannot benefit from histransaction”.
The 3rd-7th Defendants ought to have conducted legal search as park No. A03662A with the AGIS, such a legal search would have disclosed the interest of the plaintiff.
GROUND 24:
The learned trial Judge erred in law and which thereby occasioned a miscarriage of justice when he held at pages 45-47 of the judgment, thus:
“It can never be said that Abuja Metropolitan Management Council issued letter of intent Exhibit D to the plaintiff, an act of AMMC issuing Exhibit D to the plaintiff is the act of the 1st Defendant who is duly authorized to issue same. Exhibit D, the letter of intent was issued to the plaintiff on behalf of the 1st Defendant AMMC. The Minister of F.C.T is deemed in law to have issued (sic) Exhibit D including other documents to the plaintiff. See Leventis Tech. Ltd v. Petrojessica Ent. Ltd (1992) 2 NWLR (Pt. 224) 459 Ratio 3 at 469 where the Court held as follows:
“The act of an agent for a particular purpose is the act of the principal. The situation is in law as if it was the principal that did what the agent did or omitted to do. The common law rule is expressed in the maxim qui per aliumfacit per sepsamfacerevidetur which means “He who does an act through another is deemed in law to do it himself”
The act of TPL Luka Bulus Achi, a director of Parks and Recreation in the Abuja Metropolitan Management Council in issuance of Exhibit D letter of intent to the plaintiff is the act of the Minister of F.C. T. Some functions of the Minister of F.C.T are capable of being performed by certain categories of his subordinates or his officers for if it were not so, his (sic) impossible of accomplishment. Such officer remain responsible to the Minister of F.C.T, Luka Bulus Achi who signed Exhibit D is one of those officers. See Carttona Limited v. Works Commissioners (1943) 2 All ER 560 where the Court held as follows:
Where functions entrusted or delegated to a minister are performed by an official employed in the Minister’s department, there is in law no delegation or sub-delegation because constitutionally, the act or decision of the official is that of the Minister”.
From the above authority, it will be wrong for any of the defendants to contend that Abuja Metropolitan Management Council issued Exhibit D, letter of intent to thePlaintiff, it is hereby confirmed that Exhibit D, the letter of intent was issued by the Minister of F.C.T to the Plaintiff; this is why the plaintiff did not sue Abuja Metropolitan Management Council because it has disclosed principals which are the 1st and 2nd Defendants”.
GROUND 25:
The learned trial Judge erred in law which thereby occasioned a miscarriage of justice when he held as follows:
At pages 48-50 of the judgment:
“As an alternative prayer, the plaintiff asked for an order of specific performance compelling the 1st and 2nd Defendants to issue and execute lease agreement with it in respect of Park No. A03662A FMG Park and Gardens situate at No. 662 Arochukwu Street, Off OsexGarki II, Abuja because the plaintiff had fulfilled all the conditions precedent for the allocation based on the letter of intent issued by the Parks and Recreation department Abuja Metropolitan Management Council, agent of the 1st and 2nd Defendants which letter of intent was accepted and acted upon by the plaintiff.
The Court had earlier in this judgment held that the plaintiff had fulfilled all the conditions stated in Exhibit D theletter of intent which the Court described as conditional contract. There are five conditions stated in the letter of intent, the sixth condition stated that any contravention of the five conditions can result in the revocation of the allocation. It is not the case of the 1st and 2nd Defendants that the plaintiff contravened any of the conditions. Since the plaintiff had fulfilled all the five conditions, the 1st and 2nd Defendants ought to have issued lease agreement or Statutory Right of Occupancy or Certificate of Occupancy which can also be referred to as lease agreement for 99 years. Failure of the 1st and 2nd Defendants to issue lease agreement to the plaintiff will warrant this Court to order the 1st and 2nd Defendants for specific performance because the plaintiff had completed its own part of the contract, what remains is for the 1st Defendant to issue lease agreement which the Court refer to as Statutory Right of Occupancy…”
And that at pages 50-51 of the judgment:
“Specific performance will be ordered in the instant case because the plaintiff had wholly executed its own part of the agreement, including the construction andbuilding of the park to the satisfaction of the 1st and 2nd Defendants. The plaintiff had paid all the necessary fees and it had been let into possession and operating the park…”
And at pages 51-52 of the judgment:
“The 1st and 2nd Defendants are hereby ordered to issue lease agreement or Right of Occupancy or Certificate of Occupancy to the plaintiff with immediate effect in respect of Park No. A03662A FMG Parks and Gardens situate at No. 662 Arochukwu Street, Off Osex of which the size is 1.2 Hectares. The lease agreement to be issued which the Court insist must be Statutory Right of Occupancy or Certificate of Occupancy must be with the same duration in the lease granted to other park operators within the Abuja F.C.T.
The 1st and 2nd Defendants particularly the 1st Defendant can only act in pursuance of the powers given to him by the Land Use Act and other relevant laws, the letter of withdrawal Exhibit C which the Court had nullified is beyond the power of the 1st Defendant…”
And that at pages 52-53 of the judgment:
“The interference of the 1st and 2nd Defendants with the parks of the plaintiff is unjustifiedand therefore the 1st and 2nd Defendants, their agents, privies, servants or any other person acting on their behalf are hereby perpetually restrained from disturbing, interfering with plaintiff’s peaceful possession of park No. A03662A FMG Parks and Gardens…”
And at page 53 of the judgment:
“The Court had already held that the Statutory Right of Occupancy issued to the 3rd Defendants including 4th-7th Defendants are null and void. Any other documents issued to the 3rd Defendant after Exhibit M1 and tendered as Exhibits before this Court are incurably bad as one cannot put something on nothing and expect it to stay there…”
And at page 54 of the judgment:
“From the above authority, the counter-claim of the 3rd Defendant is incompetent lacking in merit, samecounter-claims are hereby dismissed.
All the alternative prayers of the plaintiff are hereby granted except with prayer (e) where the plaintiff is asking for N20,000,000.00 damages. The plaintiff did not state the type of damages it is asking for or tell the Court whether it had suffered any loss. The request for N20,000,000.00 by the plaintiff as damages isdismissed because same is without merit”.
GROUND 26:
The learned trial Judge erred in law when he admitted in evidence and acted on exhibits “J” & “K”.
In his amended brief of argument learned counsel for the Appellant formulated 6 (six) issues for determination on appeal before this Court as follows:
1. Whether the lower Court had jurisdiction to entertain the suit and, had cause of action ordinarily accrued when the 1st Respondent brought or instituted the suit or action at the lower Court taking cognizance of its Further Amended Writ of Summons, Further Amended Statement of Claim and reliefs endorsed therein, and of what effect. (Distilled from Ground 3 of the Notice of Appeal).
2. Whether the lower Court acted rightly and lawfully to have rejected in evidence the Certificate of Occupancy of the Appellant at the trial, and admitted in evidence Exhibits “J” and “K” tendered by the 1st Respondent. (Distilled from Grounds 4 and 26 of the Notice of Appeal).
3. Whether the lower Court can in judgment refer to and rely on Exhibit not admitted in evidence, cite a case incorrectly, add facts and evidence not pleaded or givenby the parties in the suit, subtract facts and evidence and misquote documents admitted in reaching judgment. (Distilled from Grounds 1, 5, 6 & 20 of the Notice of Appeal).
4. Who issued Exhibit “D”, and has he the power to do so and is it issued according to law; and is Exhibit “D” a contract or conditional contract (and not a letter of intent) read together with all admissible 1st Respondent’s exhibits that had commenced and the five conditions therein met and waived that had crystallized or ripened to issuance of lease agreement which the lower Court’s opinion is Statutory Right of Occupancy or Certificate of Occupancy for 99 years; and is it lawful for the lower Court to order lease agreement or Statutory Right of Occupancy and Certificate of Occupancy to be issued to the 1st Respondent and grant reliefs (a), (b), (c), and (d) of the alternative claims of the 1st Respondent without first considering and holding that the main reliefs have failed and dismissed; and above all, was the learned trial Judge right in holding that the counter-claim of the Appellant is incompetent, lacking in merit and dismissed. (Distilled from Grounds 2, 7, 8, 9, 10,11, 12, 13, la, 15, 16, 17, 24, & 25 of the Notice of Appeal).
5. Whether the learned trial Judge was right to have held that the Appellant has no Statutory Right of Occupancy and that Exhibit M1 is invalid, incompetent and worthless and thus discountenanced. (Distilled from Ground 18 of the Notice of Appeal).
6. Whether Park No. A03662A FMG Park and Gardens situate at No. 662 Arochukwu Street, off OsexGarki II, Abuja belongs to the 1st Respondent and 1st Respondent has a grant of land that can be revoked and compensated for in line with the Land Use Act before Plot No. 2292, Cadastral Zone A03, Garki II, Abuja can be given to Appellant; and has the 1st Respondent a better title compared with the Appellant for the learned trial Judge to invoke the doctrine of constructive notice, nemo dat quod non habet and breaches of the Constitution. (Distilled from Grounds 19, 21, 22 and 23 of the Notice of Appeal).
In respect of issue 1, learned counsel for the Appellant, IdumodinOgumu, Esq., submitted that taking cognizance of the 1st Respondent’s Further Amended Writ of Summons, Further Amended Statement of Claim, and the endorsed reliefs orclaims in the aforesaid processes, as can be seen in pages 1120 to 1129 of the Record of Appeal, cause of action had not ordinarily accrued when 1st Respondent (Plaintiff at the lower Court) brought or instituted or filed the suit or action at the lower Court which makes the lower Court lack jurisdiction to entertain the suit. Counsel cited the case of Adamu v. State (2011) 16 NWLR (Pt. 1592) 353 at 392, and submitted that amendment once granted and ordered relates back to the date the suit was first filed and takes effect from the date of the original document. Counsel further argued that action speaks from the date of the writ and therefore whatever happens after the writ has been issued cannot be used to found a cause of action which was not in existence at the date the writ was issued.
Counsel submitted that it is the claim of the plaintiff that determines the cause of action between the parties. He relied on the case of Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1 at 22 Para. F. That the suit at the lower Court was filed on 10/2/2011 as could be seen in pages 1-20 of the Record of Appeal, that from the pleadings and claims, including exhibit “C” ofthe 1st Respondent, cause of action had not arisen when the suit was filed and that the lower Court ignored this fact on jurisdiction when it was raised in the final address. That since Exhibit “C” was admitted in evidence, it means the cause of action accrued on 9/3/2011. He relied on the case of Onuekwusi v. R.T.C.M.Z.C (2011) 6 NWLR (Pt. 1243) 341 at 360 to submit that there must be accrual of cause of action before any proceeding is commenced otherwise the proceedings will be premature.
Similarly, counsel argued that a cause of action which accrues after issuance of writ cannot be claimed. He relied on the cases of IMNL v. Tawose (2004) 11 NWLR (Pt. 884) 272; Gowon v. Ike-Okongwu (2003) 6 NWLR (Pt. 815) 38 at 49 in support of his argument. Finally on this issue, counsel submitted that the suit at the lower Court was premature and should be dismissed.
In respect of issue 2, counsel argued that the learned trial Judge did not act rightfully and lawfully in rejecting the certified true copy of the Certificate of Occupancy of the Appellant dated the 8th day of March, 2011 tendered on 14/6/2017. Continuing, counsel equally submitted that the learnedtrial Judge did not act rightly and lawfully in admitting in evidence Exhibits “J” and “K” which are photocopies of public documents but not certified, and acted on the documents in reaching its judgment. Going further, counsel argued that on 14/6/2017, Appellant tendered a Certified True Copy of his Certificate of Occupancy which was duly signed by the 2nd Respondent. The main reason for the rejection is because it was made during the pendency of the suit at the lower Court and the plea to admit the document that it was made by the Minister of Federal Capital Territory in his official capacity and not as an interested person fell, flat. Counsel argued that the Appellant’s Certificate of Occupancy is a public document and issued by the Minister of the Federal Capital Territory and as a photocopy, it was duly certified. Counsel submitted that the Minister of the Federal Capital Territory who issues a Certificate of Occupancy is performing an act, a statutory act such as may be seen in Section 9 of the Land Use Act, Cap. F6, L.F.N, 2004, and Section 302 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), andSection 18 of the Federal Capital Territory Act,thus since he acted in an official capacity, he cannot be a person interested in the outcome of an action within the ambit of Section 83(3) of the Evidence Act 2011.
Counsel argued further that the Certificate of Occupancy was signed on 8/3/2011 by Senator Bala Abdulkadir Mohammed; the then Minister of the FCT, and during the tendering as at 14/6/2017, the said Senator Bala Abdulkadir Mohammed has ceased to be the Minister of the F.C.T. That the Minister of the Federal Capital Territory is a public office as the Minister comes and goes and has no personal direct interest in the issuance of a Certificate of Occupancy as he merely performs a public duty. Counsel therefore posited that for the fact the Certificate of Occupancy was issued by the 2nd Respondent during the pendency of the suit does not render it inadmissible when the proceeding was pending and is not caught up with Section 83(3) of the Evidence Act, 2011. This in counsel’s view makes the Certificate of Occupancy admissible in evidence and he urged this Court to so hold.
On issues pertaining to Exhibits “J”, which is the letter of AkansonsEkiel Ent. Ltd dated14/10/2010 to the Director of Parks and Recreation Department, and “k”, which is the solicitor’s letter dated 20/6/2008 to the Director Parks and Recreation Department, counsel referred to them as private documents or letters written to public institutions and in public custody. He argued that both Exhibits are public documents by virtue of Section 102(b) of the Evidence Act, 2011, and incidentally are photocopies. Continuing, counsel submitted that by a cumulative or community reading of Sections 89(e) & (f),90(1)(c), 102(b), 104 and 105 of the Evidence Act, 2011, only certified true copies of Exhibits “J” and “K” are admissible. That since they were not certified true copies, they must be rejected. Counsel argued that where a private document is kept in a public place, it becomes a public record of the document and the document, though a private document, becomes a public document that requires certified true copy. He cited the cases of Bob-Manuel v. Woji (2010) 8 NWLR (Pt. 1196) 260 at 273-274; Ogunleye v. Aina (2011) 3 NWLR (Pt. 1235) 456 at 536-537. Counsel urged this Court to reject Exhibits “K” and mark them as rejected.
Inrespect of issue 3, counsel submitted that the lower Court cannot in judgment refer to and rely on exhibit not admitted in evidence, cite a case incorrectly, add facts and evidence not pleaded or given by the parties in the suit, subtract facts and evidence and misquote documents admitted in reaching judgment. Counsel referred to pages 1449 to 1450 of the record of appeal where the trial Judge said the plaintiff adopted 3 Witness Statements on Oath. According to him, Plaintiff is a company and cannot adopt Witness Statements on Oath. Rather, it was the PW1 that did so for the plaintiff. Again, counsel argued that going through the record of appeal, exhibits tendered and evidence led, there is nowhere the PW1 was referred to as Managing Director of the 1st Respondent. Counsel questioned where the learned trial Judge got the fact or information?
Continuing, counsel questioned the holding of the learned trial Judge where he stated that the Park Green area was earlier allocated to the PW1 on 7th day of December 2000 and that she has been operating it until a change in government policy that parks should be operated by companies which she did by incorporatingplaintiff (1st Respondent). Counsel submitted that this holding of the trial Judge was not pleaded and not in evidence, and no documentary evidence that PW 1 was allocated the plot on 7/12/2000 or change in government policies, etc. Continuing further, counsel posited that there is no evidence on record that the PW1 incorporated the 1st Respondent. Rather, what is in evidence is that PW1 is a director of the 1st Respondent. Counsel further argued that the fact that a person is a director of a company does not mean he incorporated the company. Counsel as a result submitted that the trial Judge revealed his personal interest and knowledge of the case and should have recused himself in the matter. That Judges should not enter upon a case with foreknowledge of the facts of the case, but should enter upon every case with an open mind. Counsel cited the case of P.D.P v. K.S.I.E.C (2005) 15 NWLR (Pt. 948) 230 at 250-251; Ikumonihan v. State (2014) 2 NWLR (Pt. 1392) 564 at 591; Emerhor v. Okowa (2016) 11 NWLR (Pt. 1522) 1 at 35, in support.
Counsel, referred to pages 1459 to 1461 of the record of appeal where the learned trial Judge misquoted Exhibit “D”.
According to counsel, in quoting a document, it must be quoted as it is. According to counsel, the learned trial Judge said the letter of intent in contention is Exhibit “D2” and that there is no Exhibit “D2” admitted in evidence headed letter of intent as the only letter of intent was Exhibit “D”. Also, that the learned trial Judge cited the case of BPS Construction & Engineering Co. Ltd v. FCDA SC 1 and it was a wrong citation which the lower Court used in reaching judgment and submitted that erroneous citation of authority is not to be considered. Counsel cited the case of C.B.N v. Auto Import Export (2013) 2 NWLR (Pt. 1337) 80 at 115 in support of this assertion. Again, counsel referred to page 1479 of the record of appeal where the learned trial Judge made mention of promoters of the 1st Respondent and fundamental right to life which according to him was not mentioned or alluded to in pleadings and evidence. He submitted that a Judge who raises an issue suomotu and did not give parties an opportunity to address it has breached the rule of fair hearing and cited the case of K. Maertsch v. Bisiwa(2014) 10 NWLR (Pt. 1416) 479 at 513. Counselsubmitted that the learned trial Judge descended into the arena of conflict by generating evidence of facts not canvassed in deciding the case. He cited the case of Obi v. A.G Imo State (2016) 3 NWLR (Pt. 1500) 425 at 439. Counsel called upon this Court to aside the judgment of the lower Court for being biased.
In respect of issue 4, counsel submitted that upon a thorough and holistic reading and examination of Exhibit “D” and all other documentary exhibits cum evidence tendered and given by the 1st Respondent at the lower Court, that Exhibit “D” is not a contract or conditional contract but a letter of intent which had not commenced in any way and the conditions therein not met. He further submitted that the five (5) conditions in Exhibit “D” were never waived by the 2nd and 3rd Respondents and the said Exhibit “D” did not crystallize or ripen to issuance of a lease agreement which in the lower Court’s opinion is Statutory Right of Occupancy or Certificate of Occupancy for 99 years and that the ordering of the lower Court for the 1st Respondent to be issued a lease agreement which is Statutory Right of Occupancy and Certificate of Occupancyfor 99 years is therefore wrongful.
Learned counsel also argued that the learned trial Judge has no jurisdiction and no right in law to grant reliefs (a), (b), (c), & (d) of the alternative claims of the 1st Respondent without first considering and holding that the main reliefs of the 1st Respondent have failed and have been dismissed. That the law is settled that alternative reliefs will only be granted where the main reliefs have failed. He cited the case of Ogbonna v. K.S.D. & P. Co. Ltd (2014) 11 NWLR (Pt. 1417) 185 at 203 Para. D-E.
Apart from the foregoing, counsel submitted that specific performance cannot be granted because there is no contract as the remedy of specific performance operates only in the field of contract, which means there must be a concluded contract which is complete and certain before the order of specific performance can be made. Counsel stated that Exhibit D is not a contract and there is no contract to grant the 1st Respondent Statutory Right of Occupancy or Certificate of Occupancy. Counsel cited the case of Olowu v. Building Stock Ltd (2018) 1 NWLR (Pt. 1601) 343 at 414 Paras C-D in support.
Counselargued that Exhibit “‘M1” is an offer letter of Statutory Right of Occupancy duly accepted as in Exhibit “O” and is evidenced by a Certificate of Occupancy which the lower Court rejected. That Exhibits M1, M2, M3, M4, M5, M6, N, O are concrete facts of grant of Statutory Right of Occupancy to the Appellant and payments and all in line with the Land Use Act and Federal Capital Territory Act. That the 1st Respondent on the other hand, has no Statutory Right of Occupancy or Certificate of Occupancy in line with the Land Use Act. That the letter of Intent (Exhibit “D”) cannot override Statutory Right of Occupancy (Exhibit “M1”). Counsel urged this Court to hold that the Appellant has a valid Statutory Right of Occupancy evidenced by Certificate of Occupancy and grant the Counter-claims of the Appellant.
In respect of issue 5, counsel submitted that the learned trial Judge was wrong to have held that the Appellant has no Statutory Right of Occupancy and that Exhibit M1 is invalid, incompetent and worthless and discountenanced. That though the person that signed Exhibit M1 on behalf of the 2nd Respondent did not put his name inevidence, the Appellant through his chosen witness, DW3 gave the identity of the person who signed Exhibit M1 through his Witness Statement on Oath adopted in evidence on 17/10/2017, as stated in paragraph 4 and seen at page 1099 of the record of appeal that the Statutory Right of Occupancy of the Appellant (Exhibit M1) was signed by Nana H. Buhari, and that the 1st Respondent’s counsel never cross-examined DW3 on this material fact concerning Exhibit M1. Counsel. That unchallenged evidence not cross-examined upon is true and accepted. Counsel cited the case of Haruna v. State (2018) 11 NWLR (Pt. 1631) 559 at 571 paragraphs G–F in support of his position. Going further, counsel argued that where in evidence, the name of the person who signed a document is given, the document cannot be said to be signed by an unknown person. Counsel cited the case of Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) 458 at 609-610 Paragraphs C-A Ratio 60. Finally on this issue, counsel prayed this Court to hold that Exhibit M1 is valid, competent and worthy, and should be reckoned with and adequate weight placed on it.
In respect of issue 6, counsel submittedthat Park No. A03 662A FMG Park and Garden situate at No. 662 Arochukwu Street, Off Osex, Garki II, Abuja does not belong to the 1st Respondent, and the 1st Respondent has no grant of the land that can be revoked and compensated for in line with the Land Use Act. That it is the Minister of the Federal Capital Territory that gave Plot 2292 Cadastral Zone A03 Garki Abuja to the Appellant and designed it as residential area, and that the Minister of the Federal Capital Territory did not allocate purported Park No. A03 662A to the 1st Respondent. That there is no evidence before the Court to show that the area in issue is a green area, and that Exhibit D not been an allocation or an offer of contract within the meaning of Sections 5(1)(a), 9(1) and (2) of the Land Use Act cannot override Exhibit M1 issued by the 2nd Respondent over land in the Federal Capital Territory. That the 2nd Respondent is only statutorily mandated to issue revocation notice or give compensations underSections 28 and 29 of the Land Use Act if Exhibit D is a Statutory Right of Occupancy as envisaged under Sections 5(1)(a), 9(1) and (2) of the Land Use Act. According to counsel, the reasonis that the 1st Respondent has no title document because exhibit “D” is not a title document. That there is no title document tendered in Court for the 4th-8th Respondents. Counsel therefore posited relying on the case Kara v. Wassah (2001) 18 NWLR (Pt. 744) 117 at 139, that a Court should not act on a document not pleaded and not tendered as an exhibit in Court.
Continuing, counsel faulted the learned trial Judge’s holding that the 1st Respondent’s fundamental rights of fair hearing have been affected by the grant of land to the Appellant because the 1st Respondent has no land and has no right to be wronged. And again, there is no contract between the 2nd Respondent and 1st Respondent regarding Exhibit D or any of the Exhibits tendered in Court by the 1st Respondent. That Exhibit D being a letter of intent is not an offer nor a title document and consequently not a contract. Counsel cited the case of BPS Construction & Engr. Co. Ltd v. FCDA (2017) 10 NWLR (Pt. 1572) 1 at 25-26 in support. Counsel argued that as the 1st Respondent has no title document, that it is impracticable for the Appellant to have imputed constructive notice of priorallocation of 1st Respondent.
Finally on this issue, counsel relying on the case of Agboola v. U.B.A Plc (2011) NWLR (Pt. 1258) 375 at 413, urged this Court to hold that the 1st Respondent has no title to land because title to land must be genuine and valid, duly executed, stamped and registered, the grantor has the authority and capacity to make the grant, the grantor has in fact what he proposes to grant, and the grant has the effect claimed by the holder of the instrument.
In the final conclusion, counsel urged this Court to allow the appeal and dismiss the 1st Respondent’s case below and grant all the reliefs in the counter-claim of the Appellant at the Court below.
1ST RESPONDENT’S BRIEF OF ARGUMENT AND PRELIMINARY OBJECTION
The 1st Respondent in response to the Appellant’s Brief of Argument, filed a Brief of Argument dated 22/7/2020 and filed the same day wherein her counsel, Noah Imoni, Esq., raised a Notice of Preliminary Objection in response to the Amended Appellant’s Brief of Arguments.
In respect of the preliminary objection, the learned counsel urged this Court to dismiss this appeal in limine, on the followinggrounds:
a. Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 17, on the grounds contained in the notice of appeal are issues of facts and not law and therefore requires leave of the Court.
b. Ground 3 of the notice of appeal does not flow/arise from the judgment of the lower Court and neither constitutes a challenge to the ratio of the decision of same.
c. Particulars of error (c) and (d) of ground 4 of the notice of appeal do not flow from the ground of appeal.
d. The particulars of error (d) of ground 8 of the notice of appeal did not flow from the ground of appeal.
e. Particulars of error (b) of ground 14 of the notice of appeal did not flow from the ground of appeal.
f. Particulars of error (d) of ground 20 of the notice of appeal do not flow from the ground of appeal.
g. Particulars of error (c) and (d) of ground 23 of the notice of appeal did not flow from the ground of appeal.
h. Particulars of error (k) and (i) and ground 24 of the notice of appeal do not flow from the ground of appeal.
i. Ground 14 and 19 of the ground of appeal are orbiters and cannot form the basis of a ground ofappeal.
j. Ground 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 of the notice of appeal filed on the 4th day of May 2018 by the Appellant are narrative and argumentative.
Counsel urged this Honourable Court to take further notice of other grounds of the objection which are as follows:
a. The lower Court did not in any part of its judgment make any pronouncement on the issue of cause of action as raised by the Appellant in ground 3 of the notice of appeal.
b. Appeal is fought on the basis of the decision of the lower Court and is not taken against an orbiter.
c. That the statutory requirement of the leave of the lower Court or this Honourable Court is mandatory in respect of the Appellant’s grounds of appeal which are of facts or of mixed law and facts.
d. The Appellant failed to obtain the leave of the lower Court or that of this Court before filing the notice of appeal.
e. A competent ground of appeal cannot be argued with an incompetent ground of appeal.
f. An issue formulated from an incompetent ground of appeal, is incompetent and cannot be argued with issue(s) formulated from a competentground of appeal.
The learned counsel argued that the issue of cause of action was raised spontaneously by the Appellant in the address before the trial Court but was not raised in the pleadings of the parties before the trial Court. That the issue of cause of action did not arise at all in the judgment of the lower Court. Counsel submitted that ground three (3) of the Notice of Appeal that raised the issue of cause of action be struck out for not constituting a challenge to the ratio of the decision of the Court. Counsel cited the case of Nwankwo v. E.D.C.S.U.A (2007) 5 NWLR (Pt. 1027) 377 at 395; and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 183-184, to the effect that a ground of appeal must relate to the decision or findings of the lower Court, and that the purpose of the ground of appeal is to isolate and accentuate for attack the basis of the reasoning of the decision challenged. Counsel further cited the case of UBA Plc v. BTL Ind. Ltd (2006) 19 NWLR (Pt. 1013) 61 at 107 to the effect that an appeal on an issue not decided by the lower Court is incompetent.
Continuing, counsel argued that grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,12, 13, 14 and 17 of the grounds in the notice of appeal are issues of facts and not law, therefore, require leave of the Court. He further argued that in the absence of leave of Court either of the trial Court or this Court, first sought or obtained, they are liable to be struck out, because an incompetent ground of appeal cannot give rise to competent issue for determination. Counsel referred to the cases of Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Ehuwa v. Ondo State Independent Electoral Commission &Ors (2006) LPELR-1056.
Continuing, counsel submitted that the Court lacks the jurisdiction to proceed with these grounds of appeal since same are manifestly incompetent. Counsel further posited that issues for determination distilled or framed from incompetent grounds of appeal which have been struck out, share the same fate with grounds of appeal which gave rise to them and such issues will be struck out.
Continuing further, counsel submitted that conversely, grounds 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of the notice of appeal of the Appellant are narrative and argumentative and therefore offend Order 7 Rule 2(3) of the Rules of this Honourable Court. Counsel urged this Court to strike them out. He referred to the cases of Khalil v. Yar’Adua (2003) 16 NWLR (Pt. 847) 446 at 459 and CBN v. Okojie (2002) 8 NWLR (Pt. 768) 48.
In continuation, counsel argued that particulars of error (c) and (d) of ground 4 of the notice of appeal; particulars of error (d) of ground 8 of the notice of appeal, particulars of error (b) of ground 14 of the notice of appeal, particulars of error (d) of ground 20 of the notice of appeal, particulars of error (c) and (d) of ground 23 of the notice of appeal and particulars error of (k) and (i) of ground 24 of the notice of appeal do not flow from the grounds of appeal.
Finally, counsel submitted that ground 4 of the issues formulated for determination before the Court is verbose and urged this Court to strike it out.
ISSUES FOR DETERMINATION AND ARGUMENTS.
In respect of the issues for determination, counsel adopted the issues submitted by the Appellant for determination and responded to them in the order presented by the Appellant as follows:
a. Whether a plaintiff can only sue in respect of a cause of action whichhas already accrued. (Distilled from Ground 3 of the Notice of Appeal).
b. Whether the lower Court acted rightly and lawfully to have rejected in evidence the Certificate of Occupancy of the Appellant at the trial, and admitted in evidence Exhibits “J” and “K” tendered by the 1st Respondent. (Distilled from grounds 4 and 26 of the Grounds of Appeal).
c. Whether the lower Court can in judgment refer to and rely on exhibit not admitted in evidence, cite a case incorrectly, add facts and evidence not pleaded or given by the parties in the suit, subtract facts and evidence and misquote documents admitted in reaching judgment. (Distilled from grounds 1, 5, 6 and 20).
d. Who issued Exhibit “D”, and has he the power to do so and is it issued according to law; and is Exhibit “D” a contract or conditional contract (and not a letter of intent) read together with all admissible 1st Respondent’s exhibits that had commenced and the five conditions therein met and waived that had crystallized or ripened to issuance of lease agreement which the lower Court’s opinion is Statutory Right of Occupancy or Certificate of Occupancy for 99 years; and is it lawfulfor the lower Court to order lease agreement or Statutory Right of Occupancy and Certificate of Occupancy to be issued by to the 1st Respondent and grant reliefs (a), (b), (c) and (d) of the alternative claims of the 1st Respondent without first considering and holding that the main reliefs have failed and dismissed. (Distilled from Grounds 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 24, & 25 of the Notice of Appeal).
e. Whether the Right of Occupancy (document) issued to the appellant and signed by an unknown person can vest a valid title on the Appellant. (Distilled from Ground 18 of the Notice of Appeal).
f. Whether Park No. A03662A FGM Par and Gardens situate at No. 662 Arochukwu Street, Off OsexGarki II, Abuja belongs to the 1st Respondent and 1st Respondent has a grant of land that can be revoked and compensated for in line with the Land Use Act before Plot No. 2292, Cadastral Zone A02, Garki II, Abuja can be given to the Appellant; and has the 1st Respondent a better title compared with the Appellant for the learned trial Judge to invoke the doctrine of constructive notice, nemo dat quod non habet and breaches of the Constitution.(Distilled from Grounds 19, 21, 22 and 23 of the Notice of Appeal).
In respect of issue 1, counsel submitted that it is not the law that a plaintiff can only sue for a cause of action that has accrued before the filing of the matter as he can as well incorporate a new cause of action to an existing one that arose after the filing of the matter. That it is appropriate to do so when the new cause of action arose from the same facts and transaction before the Court. That it will amount to legal sophistry for the learned counsel to the Appellant to contend that the amendment to the existing cause of action by the 1st Respondent adding an issue that arose after the filing of the suit has extinguished the cause of action before the Court. He cited the case of Irepodun-Ifelodun L.G. v. Balemo (2008) All FWLR (Pt. 420) 708, 732-733(CA) in support of his submission. Counsel urged this Court to hold that there exists a cause of action in this case as a cause of action accrued on the date when a breach or any step taken would warrant a person, who is adversely affected by the action of another to seek redress in Court. He referred to the case of Gbadamosi v. Taiwo (2004) 43 WRN 51 (P. 73) lines 43 in support.
Going further, counsel submitted that looking at the claim before the trial Court, the cause of action arose in this suit at the point when beacons were discovered on the 1st Respondent’s Park/garden and the Appellant proceeded to rely on self-help by attempting to begin construction on the land as rightly found by the trial Judge. Counsel further argued that the act of the Appellant constitutes entry into the park and ignites a cause of action and that Exhibit “D” is the further foundational document of the Plaintiff/Respondent’s rights of possession and ownership of the park and the attempt to displace the rights conveyed therein generated a cause of action.
Counsel argued that Exhibit “C” was an attempt by the 2-3rd Defendants (now 2nd to 3rd Respondent and Appellant) on the other hand to undermine the rights conveyed in favour of the 1st Respondent by Exhibit “D”, and that the 1st Respondent was right to seek an order to set it aside or challenge the act of the 2nd Respondent who issued same in a Court of law. Counsel submitted that the claims complained of by the Appellant that led to theamendment of the writ of summons and statement of claim was provoked by the conduct of the 2nd and 3rd Respondent and they cannot benefit from their own wrongful act.
Finally on this issue, counsel urged the Court to discountenance the authorities cited by the Appellant on this issue as they are not relevant to the discourse and dismiss this ground of appeal.
In respect of issue 2, counsel contends that the lower Court acted rightly in rejecting the Certificate of Occupancy of the Appellant in evidence before the Court, and that contrary to the Appellant’s submission, the Certificate of Occupancy was declared inadmissible by the lower Court not because it was made during the pendency of the matter before the Court alone as posited by the Appellant, but because it was made during the pendency of the suit amongst other reasons.
Counsel further argued that the assertion that the 2nd Respondent is not an interested party but only acted in his official capacity to issue the Certificate of Occupancy is not true as the fulcrum of the matter bothers on the challenge of the conduct of the 2nd Respondent by the 1st Respondent. Counsel further statedthat the act of the 2nd Respondent was not mere issuance of Certificate of Occupancy to the Appellant but also the one that purportedly re-designed the land from green area to residential plot and allocated same to other beneficiaries. Counsel relied on the case of Anyaebosi v. R. T. Briscoe (Nig.) Ltd 1987 18 NSCC (Pt. 11) 805; (1987) 3 NWLR (Pt. 59) 84 SC, in support of his submission.
In respect of issue 3, counsel submitted that the judgment of the Court will not be impaired just because a Court cites a case or mentioned an exhibit wrongly as such will not vitiate the judgment of the Court. Counsel argued that the grounds from where the Appellant distilled this issue are basically matters of inconsequential clerical errors and omissions as the Court did not use same to discountenance the evidence that was led in support or otherwise in the matter. That nothing in the said grounds can be said to occasion a miscarriage of justice as the law is settled that it is not every error, mistake or slip in judgment that must result in an appeal being allowed. That it is only when the error is substantial or occasioned a miscarriage of justice that anappellate Court will act or interfere to set the judgment aside. Counsel cited the case of Udegbunam v. FCDA (2003) 30 WRN 111 Pp. 121 lines 30-5 in support of his submission. Counsel further submitted that the Appellant has not demonstrated in any way before this Honourable Court where the slip or mistake of the lower Court occasioned a miscarriage of justice against him and in such circumstance, he urged this Court to discountenance this ground of appeal.
In respect of issue 4, counsel submitted that the lower Court acted rightly in acting on Exhibit D before the Court as it was of the view that it was issued by the agent of the 2nd and 3rd Respondents. Counsel further submitted that it is also the agent of the 2nd and 3rd Respondent who is a director that also issued Exhibit M2, M3, M4, M5 and M6 to the Appellant before the Court. Counsel argued that the subject matter of this case is a green area that falls within the jurisdiction of the 2nd and 3rd Respondents and therefore, it is strange for the Appellant to contend and urge the Court to hold that Exhibit D that was issued in respect of a green area be discountenanced by the Court as not beingissued by an agent of the 2nd and 3rd Respondent.
Counsel submitted that it is wrong for the Appellant to contend that the Exhibit D that was issued in respect of a park that is controlled by parks and recreation department is not a competent document because it is settled law that where an averment in a statement of claim is not denied in a statement of defence, same is deemed admitted. Counsel cited the case of Oriami v. A.G Rivers State (2007) 14 WRN 1 at page 34 lines 30-35. Counsel also contended that Exhibit D before the Court is not merely a letter of intent as the Appellant posited but a conditional contract as rightly held by the trial Court and therefore enforceable. That the Court in interpreting a document must give due regard to the entire document as to find the correct meaning of the words in relation to the agreement. He referred to the case of Artra Industries (Nig) Ltd v. The Nigerian Bank for Commerce and Industry (1998) 8 NWLR (Pt. 546) at 379 in support of his submission.
Still on Exhibit D, counsel submitted that it brings a valid contract to existence between the 1st Respondent and the 2nd and 3rd Respondents enforceable inlaw. That in a dispute of this nature, the Court normally forms its opinion by looking at all the documents and evidence surrounding the issue to see whether there is a contract in existence capable of being enforced or otherwise. That the content of a document speaks for the document as the intent of the makers of the document is discovered from the document by its contents. He referred to the case of Oparaji v. Mr John Ahilia (2012) 4 NWLR (Pt. 1290) 266 at 281.
Counsel submitted that Exhibit D speaks for itself as it clearly states that an approval has been granted by the FCT administration for the leasing of an identifiable park and that to further buttress that the parties intended that they are to be bound by Exhibit D and/or a contract was in existence, the making of sundry payments in the name of ground rent Exhibit “A” to the agents of the 2nd and 3rd Respondents will attest to the knowledge of the agents of the 2nd and 3rd Respondents of the operation of the park by the 1st Respondent. That looking at the Exhibits tendered by the 1st Respondent before the Court, it shows that the 1st Respondent made payments for management, operation and use of park662A vide Exhibits A and B before the Court.
In respect of issue 5, counsel submitted that the learned trial Judge acted rightly when he held that the Statutory Right of Occupancy was an invalid document as it was signed by an unknown person as it is a settled law that a signature by an unknown person on behalf of another is an incompetent signature and renders the document signed through that process incompetent. He cited the case of Orizu v. Uzoegwu (1999) 6 NWLR (Pt. 605) 32 in support of his assertion. Counsel urged this Court to reject Exhibit M1 and hold same to be incompetent. Counsel referred to the case of Hon. Engr. Bako Sarai & Anor v. Inusa Haruna &Ors (2008) All FWLR (Pt. 432) 1149 CA at 1162 Par G-H where it was held that a signature by an unknown person on behalf of another is an incompetent signature. Counsel argued that the evidence of DW3 that the Appellant attempted to smuggle into the proceeding to validate the incompetent signature at the trial Court has no leg to stand because it is evidence on facts that were not pleaded by the Appellant (3rd Defendant) at the trial Court and cannot be brought to this Court forconsideration. Counsel urged this Court to discountenance same as evidence led in respect of issues that are not pleaded will go to no issue. He cited the case of George v. Dominion Flour Mills Ltd (1963) 1 ANLR 71 in support of his submission.
In respect of issue 6, counsel submitted that ground 19 of the notice of appeal did not form part of the decision of the trial Court and that none of the parties before the Court raised any question for consideration on ground 19 of the ground of appeal before the Court. Counsel submitted that at best, it is an expression of an opinion and cannot therefore constitute a ground of appeal because, the trial Court did not order for payment of compensation to the 1st Respondent and as such, it did not form part of the decision of the Court. In conclusion, learned counsel urged this Court to dismiss this appeal.
Reply to 1st Respondent’s Preliminary Objection.
In reply to the 1st Respondent’s Preliminary Objection, learned counsel for the Applicant, IdumodinOgumu, Esq. filed his arguments by incorporating same in his reply brief to the 1st Respondent’s brief of argument dated 17th November, 2020 and filed onsame date.
Counsel, in response to ground (A) of the 1st Respondent’s Notice of Preliminary Objection argued that by virtue of Section 241(1)(a) & (b) of the 1999 Constitution (as amended), Appellant has right of appeal against final decisions of the High Court of the F.C.T sitting as Court of first instance whether it is on law or facts or mixed law and fact. Counsel contended that it is only an interlocutory appeal of decisions of High Court that requires leave of Court where it is on facts or mixed law and facts or circumstances under Section 242 of the 1999 Constitution (as amended). Counsel submitted that no leave of the lower Court or this Court is required to file an appeal on facts or mixed facts and law contained in a final judgment of the lower Court. Counsel therefore urged this Court to strike out and discountenance the Notice of Preliminary objection.
In response to ground (B), counsel submitted that ground 3 of the appeal is a jurisdictional issue, which issue was raised at the lower Court and which the lower Court ignored. Counsel argued that the learned trial Judge has no jurisdiction to shut his eyes to the issue ofjurisdiction, want of cause of action and incompetency of the suit once raised. Continuing, counsel submitted that once the cause of action has not accrued or arisen, when the suit was filed, the 1st Respondent has no cause of action and the Court below has no jurisdiction to entertain the suit being incompetent and that the learned trial Judge refused or failed to pronounce on it but left it untouched.
Counsel argued further that where a trial Judge ignores in judgment an issue raised, such can be a ground of appeal because, an appeal complaining about failure of Court to decide on an issue placed before it is not a fresh issue but point of law. Continuing, counsel submitted that ground of appeal complaining about failure of Court to decide on issue placed before it is said to have arisen from the decision of the Court. He cited the case of Esuwoye v. Bosere (2017) 1 NWLR (Pt. 1546) 256 at 291 to 292 to buttress his point.
In response to the 3rd ground, counsel submitted that particulars of errors (c) and (d) flow from ground 4 of the Notice of Appeal which is a complaint against the wrongful rejection of the Appellant’s Certificate of Occupancy onthe ground that it was made during the pendency of the suit at the lower Court and the maker is a party interested. Counsel posited that the issuance of the rejected Certificate of Occupancy is predicated on Exhibit M1 as there was payment for the Certificate of Occupancy before the suit at the lower Court was filed and so the Minister of the Federal Capital Territory was only performing an official duty in his official capacity and has no personal interest in the issuance of the lower Court’s rejected Certificate of Occupancy and cannot be an interested person.
In response to the 4th complaint, counsel argued that Exhibit D speaks for itself when it provides among other conditions and terms among which are that Respondent should negotiate with financiers, should submit technical design proposal for approval within 21 days from 31/7/2007, and there must be a lease agreement to execute, must have approved detailed technical design proposal, must pay all fees etc., that it is upon the fulfillment of the conditions and terms in Exhibit D that it is said to have commenced as the contention here is that the 1st Respondent did not fulfill the terms andconditions of Exhibit D for it to commence.
As regards the 6th complaint, counsel questioned where the learned trial Judge got the evidence to back up the lower Court’s judgment thus; “it would amount to infringement of the right to life of the plaintiff and its promoters for 1st and 2nd defendants to allocate their means of livelihood (Park A03662A) to 3rd-7th defendants without notice and without compensation”? Counsel argued that particular D of ground 20 is to the effect that the lower Court erred because at the lower Court there was no evidence of grant of land at all to even the 4th to 7th defendants at the lower Court and the particulars flow from the ground. That the 4th to 7th defendants did not enter appearance at all and did not participate in the proceedings. That a Court cannot manufacture evidence or base judgment on a figment of imagination and speculation.
In response to the 7th complaint, counsel argued that particulars of error (c) and (d) are to the effect that no title documents of 1st Respondent tendered has Abuja Geographic Information Systems written on it but only when the title documents of the 1st Respondent areissued by the Minister of the Federal Capital Territory, Federal Capital Development Authority or Abuja Geographic Information Systems that will warrant going to that establishment for search and confirmation. Counsel reiterated that particulars of (c) and (d) of ground 23 flow from the ground.
On the 8th complaint, the response was that particulars of error (K) and (i) are to the effect that the Minister of the Federal Capital Territory and Federal Capital Development Authority in pleadings and evidence denied issuing Exhibit D and allocating the land in Exhibit D which the 1st Respondent did not controvert; and that there is a law establishing Abuja Metropolitan Management Agency to negative the claim that the act of Lukas Bulus Achi is the act of the Minister of Federal Capital Territory and, even the Minister of Federal Capital Territory has delegated authority in Federal Capital Territory wherein the principal is the President of the Federal Republic of Nigeria or the Federal Government of Nigeria. Counsel reasoned that the Minister of Federal Capital Territory cannot therefore delegate allocation of land to Lukas Bulus Achi because a delegatecannot delegate again. So particulars in error (K) and (I) flow from ground 24.
On the 9th complaint, counsel submitted that grounds 14 and 19 of the amended notice of appeal are not obiters because ground 14 is a complaint of the decision of the Court below in judgment justifying that there is no evidence of contravention of Exhibit D which is the purported title document of the 1st Respondent and the revocation in Exhibit C which is the main cause of the action. Counsel argued that portion of the judgment validating Exhibit D can never be an obiter, and if the Appellant refused to challenge the portion of judgment that there is no evidence of contravention of the conditions in Exhibit D, then it is deemed true and the appeal becomes useless. Counsel submitted that the Appellant has to challenge all specific points of decision against him, either specific finding of fact or point in the decision of the lower Court.
He also argued that there is no ground of appeal in the amended notice of appeal that is narrative or argumentative, and that complaint of notice of appeal being narrative, argumentative and verbose cannot even vitiate an appeal. Counsel relied on thecase of Awusa v. Nigerian Army (2018) 12 NWLR (Pt. 1634) 421 at 448 to the effect that once the error complained of is identified and properly oriented in the ground of appeal, the fact that particulars of the said ground are argumentative, repetitive or narratives is not enough for an appellate Court to sidestep from doing justice.
Appellant’s reply brief to the 1st Respondent’s brief of argument.
in reply on points of law on issue 1 raised by the 1st Respondent, Appellant’s counsel submitted that the Appellant does not need leave of Court to appeal against a final decision and that by virtue of Section 241(1)(a) & (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Appellant has right of appeal against final decisions of the High Court of Federal Capital Territory sitting as Court of first instance whether it is on law or facts or mixed law and fact. It is only interlocutory appeal of decisions of High Court that requires leave of Court where it is on facts or mixed law and facts or circumstance under Section 242 of the 1999 Constitution of the Federal Republic of Nigeria (amended).
In the final conclusion,counsel urged this Court to allow the appeal and set aside the judgment of the lower Court.
Cross Appellant’s brief of argument.
The 4th Respondent in this appeal having not taken part in the proceedings at the lower Court and being dissatisfied with the lower Courts proceedings and entire judgment entered against him, filed a cross-appeal against the judgment of the lower Court which incorporates his four (4) Grounds of Appeal thus:
Ground 1:
The learned trial Judge erred in law when he held that the Cross Appellant was served with Court processes when the Court held as seen at pages 8 to 10 of the judgment thus:
“The 4th, 5th, 6th and 7th Defendants did not file statement of defence or attend the proceedings along with their counsel despite being served with the writ of summons and statement of claim through newspaper publication. The 4th-7th Defendants were equally served with hearing notices through the publication in the newspaper. All these newspapers form parts of records of this Court as proof of service. Where parties were served with originating processes including hearing notices and they deliberately failed to honourthe Court invitation, they cannot turn around to say that they were not given fair hearing. The 4th-7th Defendants have been served with the originating processes along with hearing notices, their failure to attend Court along with counsel is not the business of this Court.
See: MILITARY GOVERNOR LAGOS STATE V. ADEYIGA (2001) FWLR (Pt. 83) 2137 at 2155-2156 where the Court held as follows:
“Where after both parties to a dispute have been duly notified of the hearing date and a party for no justifiable reason decides to opt out of the proceeding, the case of the other person once it is not discredited in any legal way should be the case to be considered on merit. The intention of the other party as to its refusal to take part is not business of the Court”.
See also Newswatch Comm. Ltd v. Atta (2006) 12 NWLR (Pt. 993) 144 at 175 paragraph F where the Supreme Court held as follows:
“But where as in the instant case, a party deliberately refused or neglect to lay his case across the table despite all the opportunities granted him by the Court to do so, up to the time judgment was delivered, that party cannot be heard to complainabout the trial being unfair to him”.
It was further held at page 179 of the same law report as follows:
“A party who has been afforded the opportunity to put across his defence and who fails to take advantage of such opportunity cannot later turn round to complain that he was denied a right of fair hearing. Surely, it is not the place of the Court to compel a defendant to come and put across his defence”.
The Court cannot compel the 4th-7th Defendants to defend this suit, the Court had given them opportunity to defend this case, but they decided not to make use of the opportunity given to them, they cannot complain that they were not given fair hearing”.
Ground 2:
The learned trial Judge erred in law which hereby occasioned a miscarriage of justice when he held at pages 41-43 of the judgment, thus:
“The plaintiff and the 3rd-7th Defendants got their title over the same land from 1st Defendant. The plaintiff being the first in time has better title than 3rd-7th Defendants”.
The 3rd-7th Defendants have constructive notices and imputed notices of the Plaintiff interest in Park No. A03662A before same was allocated to them by the 1st and 2nd Defendants, therefore they are not bonafide or innocent purchasers for value, they cannot benefit from the transaction.
See Universal Vulcanizing Nig. Ltd v. I.U.T.C. (1992) 9 NWLR (Pt. 266) 388 at 393 where the Court held as follows:
“A party who purchases a property with the knowledge of the equity of an earlier purchaser of the same property cannot benefit from this transaction”.
Ground 3:
The learned trial Judge erred in law and which occasioned a miscarriage of justice when he held on pages 38-39 and 53 of the judgment, thus:
“There was no notice to the plaintiff before the Statutory Right of Occupancy of the 3rd Defendant Exhibit M1 was issued including Statutory Right of Occupancy of 4th-7th Defendants which amount to constructive revocation of Park No. A03662A from the Plaintiff without hearing from her and without giving her fair hearing. For the 1st and 2nd Defendants to allocate Park No. A03662A belonging to the Plaintiff to the 3rd to 7th Defendants without notice to the plaintiff and without giving the Plaintiff fair hearing, such statutory allocation issued to 3rd-7th Defendants are invalid”.
See Macfoy v. UAC Ltd (1996) 3 All ER 1169 where the Court held as follows:
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse”.
See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 where the Supreme Court held this as follows:
“Prudence and the law demand that a Governor revoking a right of occupancy for public purposes should accord all those aggrieved by the revocation fair hearing as provided by Section 33(1) of the 1979 Constitution if the revocation is for breaches of terms of the certificate of occupancy”.
The fundamental rights of the plaintiff had been affected by the re-allocation of Park No. A03662A to 3rd-7th Defendants. The 1st and 2nd Defendants failed to abide by audi alteram partem which rendered any title documents issued to 3rd-7th Defendants invalid. See Ceekay Traders Ltd v. Genera! Motors Co. Ltd (1992) 2 NWLR (Pt. 222) 132 SC.
Ground 4:
The learned trial Judge erred in law when he delivered judgment on the 22nd of March, 2018 without service of hearing notice on the Cross-Appellant.
The Cross-Appellant sought for the following reliefs before this Court:
a. An order allowing this appeal, setting aside, voiding and nullifying the judgment of the lower Court.
b. An order of this Honourable Court that the suit at the lower Court be re-assigned to another Judge for adjudication on the merit.
c. And such further order(s) as this Honourable Court deems fit in the circumstances of this appeal.
In his issues for determination, the following issues were formulated for the determination of this cross-appeal as follows:
1. Whether from the record before this Honourable Court, the Court processes upon which the case at the lower Court was heard and decided were actually served on the Cross-Appellant and whether the conclusion by the learned trial Judge that the Cross-Appellant was served with the Writ of Summons, Statement of Claim and hearing notices through newspaper publication was proper, and if not, what is the effect? (Distilled from grounds 1 & 4 of the Amended Notice of Cross-Appeal).
2. Whether the learned trial Judge was right in holding that the1st Cross-Respondent and the Cross-Appellant got their title over same land from the 2nd Cross-Respondent when the Cross-Appellant did not participate in the trial and his title document was not tendered in evidence for evaluation. (Distilled from ground 2 of the amended Notice of Cross-Appeal).
3. Whether the learned trial Judge was right in invalidating the title documents of the Cross-Appellant which was neither pleaded nor tendered in evidence. (Distilled from ground 3 of the Amended Notice of Cross-Appeal).
In arguing issue 1, counsel submitted that the answer to the above issue as raised is in the negative. That the Cross-Appellant was joined by the order of the lower Court on the 23rd of June, 2014, and that by a subsequent order of the Court on 30th of October, 2014, the Cross-Appellant was ordered to be served the originating processes and hearing notice in any newspaper circulating within Abuja, FCT as can be seen in pages 1382 to 1384 of the Record of Appeal. That the Cross-Appellant was served only once by the Nigerian Tribune Newspaper publication of 5th May, 2016 (page 1009 of the Record of Appeal), and that after this, the learned trial Judge treated the Cross-Appellant as if he was not a party to the suit as no further Court processes of all the parties to the suit were served on the Cross-Appellant till the end of the case, including hearing notices.
Going forward, counsel submitted that after the said service which was effected against the Court sitting of 18th day of May, 2016, the Plaintiff/1st Cross-Respondent amended its Writ of Summons and Statement of Claim which application was granted by the trial Court on the 17th of October, 2017 without the Cross-Appellant being served. Counsel argued that this vitiated the entire proceedings at the lower Court as the trial Judge failed to ensure that service of all processes was effected on the Cross-Appellant, as this is against Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria vis a vis fair hearing. Counsel cited the cases of Obialor v. Uchendu (2014) 11 NWLR (Pt. 1419) Page 444 at 459 Paras D – E and Otu v. ACB Int’l Bank Plc (2008) 33 NSCQR 143 at 179.
Continuing, counsel submitted that after the Cross-Appellant was joined as a party in the suit on 23rd June, 2014, the matter came up about twenty times and that on 16/1/2018, the Court ordered that hearing notices be served on parties for the day of judgment (page 1439, lines 1-2 of the record of appeal), and that the Cross-Appellant was never served as ordered yet, the trial Court disobeyed its own order of service and went ahead and delivered judgment against the Cross-Appellant.
Counsel submitted that the right to fair hearing is a constitutional right that cannot be waived and therefore, failure to serve the hearing notice and processes of the lower Court in this case on the Cross-Appellant robbed the trial Court of the jurisdiction to entertain the suit. He relied on the case of FBN Plc v. T.S.A Ind. Ltd (2010) vol. 187 LRCN Page 1 at pages 62-64 Paras P-P; Ene v. Asikpo (2010) vol. 41 WRN page 132 at 145-146 Ratio 16 and 17.
In arguing issue 2, counsel submitted that the learned trial Judge misdirected himself when he held that the Cross-Appellant and the 1st Cross-Appellant got their titles from the same source and that the 1st Cross-Respondent’s title was first in time. Counsel reemphasized that the Cross-Appellant did not participate in the trial at the lower Court and that his title document was not placed before the Court which makes the decision of the trial Court speculative. Counsel relied on the case of Overseas Construction Co. Ltd v. Creek Enterprises (Nig) Ltd (1985) 3 NWLR (Pt. 13) Page 328 at 407 Paras B-E, to submit that the duty of a Court is to consider the evidence provided before it and never to proceed to indulge in speculation as to what might have happened nor should a Judge substitute his own supposition for the evidence before him.
In arguing issue 3, counsel submitted that the learned trial Judge erred in law which occasioned a miscarriage of justice when he invalidated the title document of the Cross-Appellant which was neither pleaded nor tendered in evidence as the Cross-Appellant was denied the opportunity of being heard before judgment was entered in favour of the Cross- Respondent. Relying on the case of Omotayo v. Co-operative Supply Association (2011) Vol. 202 LRCN Page 134 at 165 Para F, counsel submitted that where a party relies on a document in proof of his title to land, he must tender the document in evidence as extrinsic evidence of its contents is not admissible in evidence. Following this submission, counsel posited that the non-presentation or tendering of the title document before the trial Court was enough reason for the trial Court not to have declared the title invalid.
Going further, counsel argued that a trial Court is only bound to evaluate evidence before it and ascribe probative value thereto in deciding a case and this does not include delving into and making pronouncements on evidence and documents not before the Court and urged this Court to so hold. He relied on the case of Odunayo v. State (2014) 12 NWLR (Pt. 1420) Page 1 at 36 Paras A-C.
In the final conclusion, counsel prayed this Honourable Court:
a. To allow this Cross-Appeal and set aside, void, nullify the judgment of the lower Court in suit no. FCT/HC/CV/3008/2011 between Akansons Ekiel Ent. Ltd v. Hon. Minister of the Federal Capital Territory, Abuja and 6 Ors.
b. To order the re-assignment of this; suit at the lower Court to another Judge for adjudication on the merit, as this is the only way justice will not only be done but seen to have been done in this case.
In reply to the Cross-Appellant’s issues and arguments, the 1st Cross-Respondent filed his Brief of argument dated and filed 8th March, 2021 and filed on same date. Cross-Respondent’s counsel submitted the following issues for determination:
1. Whether the decision of the lower Court was reached in breach of Cross-Appellant’s right to fair hearing. (Distilled from Grounds 1 & 4 of the Amended Notice of Appeal).
2. Whether or not the learned trial Judge was right when he held that the 1st Cross-Respondent and the Cross-Appellant got their title from a common grantor (2nd Cross-Respondent). (Distilled from Ground 2 of the Amended Notice of Appeal).
3. Whether or not the age long legal principle of nemo dat quod non habet was properly invoked and applied by the learned trial Judge in respect of title conferred by the 2nd Cross-Respondent on the Cross-Appellant or any other person. (Distilled from Ground 3 of the Amended Notice of Appeal).
In respect of issue 1, learned counsel to the 1st Cross-Respondent, Noah Imoni, Esq. submitted that the lower Court was right when it held that the records before it showed that the Cross-Appellant were served processes of this suit through Newspaper publication and proceeded to consider the merits of the case. Counsel also submitted that the Court can rely on documents in its file so as to guide it in arriving at the decision in a case and thus it was proper for the Court after looking at its records to hold that the Cross-Appellant was served.
Continuing, counsel argued that where a party to a case is served processes and decides to stay away from the conduct of the trial, it will be preposterous for such a party to allege breach of fair hearing. Counsel referred to the cases of ENL Consortium Limited and Shambilat Shelter (Nig) Ltd (2018) JSCNLR (Vol.1) 373 at 388 Paras C-H; Baiophys Enterprises, Limited & Anor v. NDIC (2019) Vol. 37 Page 163 at 175-176; Orugbo & Ors v. Una & Ors. (2002) 9 SCNJ 12 at 17, (2002) LPELR-2778 (SC) at 36 – 37, and other cases in support of his submission.
Counsel finally submitted that since it is in the record of the Court that the Cross-Appellant was served the processes of this suit through newspaper publication, the hearing of the matter by the Court and subsequent decision on same is proper when the Cross-Appellant who is fully aware of such service stayed away from the Court. Counsel urged this Court to resolve this issue in favour of the 1st Cross-Respondent.
In respect of issue 2; counsel submitted that the learned trial Judge was right to have held that the Appellant and the Cross-Appellant got their title from a common source. Counsel relied on the case of Taiwo v. Adegboro (2011) All FWLR (Pt. 584) 52 at 67 SC to state that in relation to admissions generally, facts admitted need not to be proved again and that the learned trial Judge was right to have acted on the admission of the parties before the Court in respect of the position of the 2nd Cross- Respondent that is alleged to exercise rights on land in the Federal Capital Territory on behalf of the President.
Flowing from the above, counsel posited that it is an established fact before the Court that both the 1st and 2nd Cross-Respondents admitted in their pleadings and evidence before the Court that the 2nd Cross-Respondent allocated the land to the Cross-Appellant. Counsel referred this Court to the records of appeal at pages 680 and 682 paragraphs 2 and 16 respectively of the further amended Statement of Claim etc in proof. Continuing,Counsel further submitted that it is a fact that is judicially noticed that all lands in the Federal Capital Territory is vested on the president of the Federal Republic of Nigeria who administers same through the 2nd Cross-Respondent, and thus, the issue of the Cross-Appellant and the 2nd Cross-Respondent deriving their title from a common grantor as held by the trial Court was in order. Counsel urged this Court to resolve this issue in favour of the 1st Cross-Respondent.
In respect of issue 3, counsel submitted that the Court held and found established before it that the 1st Cross-Respondent was the supposed grantee of leasehold interest having fulfilled all the terms and conditions in Exhibit A before the Court. Consequently, any other title conferred on the Cross-Appellant or any other person by the 2nd Cross-Respondent in difference to the one conferred on the 1st Cross-Respondent will be caught up by time tested principle of nemo dat quod non habet.
Counsel further submitted that upon conferment of interest on the 1st Cross-Respondent by the 2nd Cross-Respondent, the 2nd Cross-Respondent ceased to retain any other title that it can confer on any other person including on the Cross-Appellant as was rightly held by the Court. Counsel urged the Court to so hold in favour of the 1st Cross-Respondent and resolve the issue against the Cross-Appellant.
In the final conclusion, counsel urged the Court to dismiss this Cross-appeal as same is unmeritorious based on the points established.
RESOLUTION
The Cross appeal is primarily a challenge to the effect that the Cross-Appellant Mohammed A. Goronyo who was the 6th defendant at the trial Court was not served with the processes of the lower Court. Any challenge as to the service of the originating processes is a challenge to the jurisdiction of a Court to hear and determine the matter. See N.A.C.B. Ltd v Adeagbo (2004) 14 NWLR (Pt. 894) 551.
The learned counsel for the Cross-Appellant submitted at page 4 of the Cross-Appellant’s Brief of Argument (para 4:04 and 4:8) thus:-
“…The Cross-Appellant was served once by the Nigerian Tribune Newspaper publication of 5th May 2016 as can be seen on page 1009 of the Record of Appeal…”
“…That the further Amended Writ of Summons, Further Statement of Claim, further and better witness statement on oath and the annexures as contained in pages 1120 to 1245 of the Record of Appeal were the originating processes which found the basis of the 1st Cross-Respondent’s claim and upon which judgment was entered in its favour. We contend that the said processes were not served on the Cross-Appellant, which vitiated the entire proceedings.”
The learned counsel for the 1st Respondent/Plaintiff in response to the foregoing submitted that “the lower Court was right when it held that the records before it showed that the Cross-Appellant was served processes of this suit through Newspaper Publication and Proceeded to consider the merits of the case”.
The trial Court was specific and right when it held that the “Writ of Summons” was served through Newspaper publication. There is evidence of that service at page 1009 of the records of proceeding. The counsel for the Cross-Appellant equally admitted that service.
In Mark v Eke (2004) 5 NWLR (Pt.865) 54, the Supreme Court held that when an aggrieved party complains of non-service of processes, he is raising a fundamental issue which goes to the jurisdiction and competence of the Court to enter any judgment. In such a case, where the party proves non-service of process the whole proceedings becomes a nullity and the trial Court has the jurisdiction to set it aside. This is because failure to serve process where service is required is a failure which goes to the root of the case. See N.A. C.B. Ltd v Adeagbo (2004) 14 NWLR (Pt. 894) 551. The foregoing is only when the party was denied service. But where a party by his conduct abandons the case, the rule is no longer applicable. The Cross-Appellant admitted that he was served the Writ of Summons by a publication in the Tribune Newspaper. That was to draw his attention to the pending of this suit. He was required to enter appearance/defence within a specified date. By the writ of summons served on him within thirty days inclusive of the date of service on him. The Rules of Court equally required him to submit an address for service. See Order 7 Rule 2 of the Federal High Court (Civil Procedure) Rules 2009 which was in operation when this suit was filed at the lower Court. He did none of that, by his argument it then means; that all processes for service on him must be effected by publication through the newspaper whenever there is any need to serve him with any process of Court including mere hearing notice; that is not the intendment of the original service on him through the newspaper publication. Having not entered appearance or any defence, also having failed to supply any address for service of further processes of the Court in the matter on him, after the initial service on him of the writ of summons and other originating processes through the newspaper publication, he has certainly and unequivocally abandoned the case and cannot be heard to complain of non-service of any further processes of Court and/or denial of fair hearing. The point must be made and very clearly too, that a party to a suit who was served the originating processes by substitution, must upon receipt of the originating processes; enter appearance and defence to the suit if he has any defence. He must also supply his address for service within the jurisdiction of the Court failing which he will be deemed to have abandoned the suit. He will no longer be tolerated to set aside the judgment of the Court for failure to serve him any further processes in the matter.
In Uwemedimo v Mobil Producing (Nig.) Ltd (2022) 2 NWLR (Pt. 1813) 53 at 73 the Supreme held thus:
“Service is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. This is based on the principle that a party should know or be aware that there are pending proceedings against him so that he can prepare a defence or take steps to participate in one way or another.
If after service, he elects not to take part in the proceedings by filing any processes in response, the law will assume and rightly too, that he either has no defence or no interest in the proceedings. But where a defendant is not aware of the pending proceedings because he was not served, the proceeding held outside him will be null and void. Thus, non-service of process on a party properly so-called will render proceedings on such unserved process, null and void. See Tsokwa Motor (Nig.) Ltd. v. U.B.A. Plc. (2008) LPELR-3266(SC); (2008) 2 NWLR (Pt. 1071) 347; Eimskip Ltd. v. Exquisite Ind. (Nig.) Ltd. (2003) LPELR-1058(SC); 4 NWLR (Pt. 089) 88.” Per Oseji J.S.C., of blessed memory paras. B-E.
In respect of the other issues raised in this cross-appeal having abandoned the case; the trial Court cannot be faulted on the decisions reached by the pleadings and evidence of the other parties that participated in the matter. Consequently, this Cross Appeal is lacking in merit and it is hereby dismissed.
I shall deal with the preliminary objection to the main appeal. The 1st Respondent filed a preliminary objection challenging the competency of the appeal on the ground that no leave of Court was obtained before the filing of this appeal which according to counsel; is based on mixed law and facts. I agree completely with the submission of the learned counsel for the Appellant that the Appellant does not need leave of Court to appeal against a final decision of the lower Court. That by virtue of Section 241 (1)(a) & (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Appellant has right of appeal against final decisions of the High Court of Federal Capital Territory sitting as Court of first instance whether it is on law or facts or mixed law and fact. The preliminary objection to this appeal is therefore dismissed.
I shall now deal with the main appeal, since the 1st Respondent adopted the 6 issues raised by the learned counsel for the Appellant, I equally adopt them as mine and shall treat them in the resolution of this appeal as follows:-
In respect of the 1st issue, that is; whether the lower Court had jurisdiction to entertain the suit and, had cause of action ordinarily accrued when the 1st Respondent brought or instituted the suit or action at the lower Court taking cognizance of its Further Amended Writ of Summons, Further Amended Statement of Claim and reliefs endorsed therein, and of what effect.
There is no doubt that an amendment relates back to the date of filing the writ, meaning that an amended writ or statement of claim “is deemed” to have been filed on the date the statement of claim was filed. But, this is only a legal fiction. A device to attain certain ends. It does not obliterate the fact that a particular process is filed on a particular date”, per, Ogundare JSC in Tsokwa Oil Marketing Co. Nig Ltd v Bank of the North Ltd (2002) LPELR-3268 (SC) 47 para D-E. In Conoil Plc v Dutse (2016) LPELR-40236 (CA) the Court held that “There is no law that encourages multiplicity of actions against the same opponents with facts or subject matter that are the same even where the causes of action arise at different times. The fact that a cause of action or new facts have come up after an original suit has been filed in same suit having same parties and subject matter does not call for the filing of a fresh suit. This has been taken care of by the law and practices of our Courts through amendments”. See Abasi v Labiyi(1958) WNLR 12, and Union Bank v. Ogboh (1995) 2 NWLR (Pt.380) 647. Also in Foko v. Foko (1968) NMLR 441; the Supreme Court held that an amendment can be made introducing a new cause of action or substituting a fresh one for the original provided the facts in the additional new cause are substantially same with that of which the plaintiff has already claimed. In this case, the fact the 1st Respondent amended his writ and statement of claim at the lower Court to incorporate issues particularly as they relate to exhibits C and D which arose after the commencement of this case will not vitiate the jurisdiction of the lower Court to try the case neither will it render the proceedings and judgment thereafter a nullity. From the foregoing, this issue is resolved against the Appellant.
Issues 2 and 5 are to be treated together, issue two is; whether the lower Court can in judgment refer to and rely on exhibit not admitted in evidence, cite a case incorrectly, add facts and evidence not pleaded or given by the parties in the suit, subtract facts and evidence and misquote documents admitted in reaching judgment. (Distilled from Grounds 1, 5, 6 & 20 of the Noticeof Appeal). While issue five is; whether the learned trial Judge was right to have held that the Appellant has no Statutory Right of Occupancy and that Exhibit M1 is invalid, incompetent and worthless and thus discountenanced. (Distilled from Ground 18 of the Notice of Appeal).
On the issue of rejection of the Certificate of Occupancy of the Appellant. It is very clear that the said Certificate of Occupancy was issued by the 2nd Defendant at the trial Court. Now, 2nd Respondent in favour of the Appellant during the pendency of this case at the lower Court. Certainly, it was made in contemplation of this suit. The law is settled, that a document made by a party in a suit, during the pendency of that suit is inadmissible. In Peterside & Ors v Wabara & Ors (2010) LPELR-4847 this Court stated thus: “the general rule and the law is that documents made by an interested party during the pendency of a suit is inadmissible”. See Ogidi v Egba (1999) 6 SCNJ 107. See also Section 83(3) of the Evidence Act 2011.
On exhibits J and R which documents were tendered as acknowledgment copies of their original copy. They are admissible documents for that purpose.
Apart from that, what miscarriage of justice did their admission in evidence as exhibits occasion in this case. Section 251 (1) Evidence Act, 2011 provides that:
“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”
The law is therefore settled that wrongful admission or exclusion of evidence will not of itself be a ground for the reversal of any decision where it appears to the Court on appeal that the evidence so admitted could not reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted or rejected. See Dagaci of Dere v Dagaci of Ebwa (2006) 7 NWLR (PT 979) 382, Ogunsina v. Matanmi (2001) 9 NWLR (Pt. 718) 286 and Omomeji v Kolawole (2008) 2 NWLR (Pt. 1106) 180.
Assuming that those documents ought not to have been admitted without conceding that, there is no evidence that a different decision could have been reached. Consequently, these issues are resolved against the Appellant.
In respect of issue 3, the complaint is generally on mistakes, spelling errors, slips and typographical error for instance “the plaintiff adopted 3 witness statements on oath instead of the PW1 adopted”. Exhibit D2 instead of exhibit D, excluding “Your Ref” in quotation ‘manage’ instead of ‘manage’. The law is settled that it is not every mistake, slip or error by a trial Court that will cause the Court on appeal to reverse the judgment. See Olonade & Anor v Sowemimo (2014) LPELR-229 SC. The appellant has to show that the error complained of affected the result of the decision and/or occasioned miscarriage of justice. Thus, where in spite of the error made out by the Appellant, the decision appealed against would not be any different the appeal would fail. In such an instance the judgment appealed against would not be disturbed. See A.G. Leventis Nig Plc v Chief Christian Akpu (2007) 6 SCNJ 22, Oguntayo v Adelaja & Ors (2009) 6-7 SC (Pt. 111) 91 and Chief IkediOhakim & Anor v Chief Martin Agbaso & Ors 6-7 SC85. This issue also is resolved against the appellant.
Issues 4 and 6 will be treated together. Exhibit D was issued by Abuja Metropolitan Management Council agent of the 2nd and 3rd Respondents. That agency was joined as a party to this suit. However, the 1st Respondent was in possession of the land for about 10 (ten) years before the Appellant and others emerged on the property. There is evidence that she has been paying outgoings and other rentals to the 2nd and 3rd Respondents through the said agency that put her in possession. Therefore, the act of being in possession of the land through the instrumentality of exhibit D, payment of bills, taxes imposed and other outgoings in the property gave the 1st Respondent equitable right over that property capable of being protected by the Court and also within which the Court can order conversion to a legal right. The fact that the lower Court did not dismiss the main claim before granting the alternative claim cannot vitiate the judgment as long as the main claims were not granted. It means that the main claims failed. Under Section 15 of the Court of Appeal Act they are hereby dismissed.
These issuesare equally resolved against the Appellants. In all, this appeal is lacking in merit. It is hereby dismissed. The judgment of the trial Court in Suit No: FCT/HC/CV/3008/2011 in this matter, on 22nd day of March, 2018, is affirmed. Parties to bear their costs.
Judgment is entered accordingly.
STEPHEN JONAH ADAH, J.C.A.: I read in draft, the judgment just delivered by my learned brother, Kenneth Ikechukwu Amadi, (Ph.D), JCA.
My learned brother has dealt with all issues raised in this appeal. I am in agreement with the reasoning and the ultimate conclusion that both the appeal and the counter appeal be dismissed. I too, do dismiss them for lacking in merit. I abide by the consequential order as made in the lead judgment.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother, KENNETH IKECHUKWU AMADI, Ph.D, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is accordingly dismissed.
I abide by all the consequential orders.
Appearances:
IdumadinOgumu, with him, Usman YuzonoaFor Appellant(s)
S.A. Ezekiel, with him, Gabriel Okpoke – for 1st Respondent
AjibolaAbioye – for 2nd and 3rd Respondents
Hope Omorogie, with him, Zipporah Cayford – for 4th Respondent/Cross-AppellantFor Respondent(s)
