FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ORS v. UNIQUE FUTURE LEADERS INTERNATIONAL LIMITED
(2014)LCN/7273(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of June, 2014
CA/A/614/2012
RATIO
WHETHER IT IS NECESSARY FOR A NOTICE OF PRELIMINARY OBJECTION TO BEAR THE ORDER UNDER WHICH IT IS BROUGHT
Having gone through the records, the submissions of learned counsel and authorities cited, this court holds the view that preliminary objections, contrary to the submission of learned counsel to the appellants do not have to state the rules under which they are brought, to be competent; the case may be so in respect of other applications; as order 7 of the rules of court makes it clear enough, that applications to the court shall be by motion supported by an affidavit, and shall state the rules under which such applications are brought, and the grounds for the reliefs.
Granted, a notice of preliminary objection is an application, in a generic sense, but as far as such notices are concerned the basic requirement is that the appellant be given three clear days’ notice before hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time frame; Paul Masu Esq., v John Udeagbala & and Anr (2011) LPELR 4833 CA; clearly this requirement has been met by the respondent in this case.
It is not necessary, in my considered opinion, in the circumstances, that a notice of preliminary objection should bear the order under which it is brought; this belief is also borne out by the authority of Paul Masu Esq., (supra), where it was held that:
“…the fundamental nature of respondents’ objection that borders on the court’s competence dictates it still be considered notwithstanding the respondent’s non compliance with the rules of this court.” per MOHAMMED MUSTAPHA J.C.A.
WHETHER FRESH ARGUMENTS CAN BE TAKEN ON APPEAL
The law is trite that an appellate court will not allow fresh arguments on appeal, especially if they were not raised before the lower court; this is informed by the desire to benefit from the opinion of the lower court; “it is bad in law for a party to argue on appeal a case alien to the case he argued in the trial. An issue, new or alien to that argued during trial is incompetent for consideration on appeal, except leave is first sought and obtained in the court of appeal to introduce same appropriately” – Akuneziri v. Okanwa (2006) 17 NWLR Part 691 at 526. per MOHAMMED MUSTAPHA J.C.A.
JUSTICES
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
2. MINISTER, FEDERAL CAPITAI. TERRITORY
3. ALHAJI ABUBAKAR SIDDEEQ MUHAMMAD (Trading under the name and style of Tahfeezul Qu’ran Enterprises) – Appellant(s)
AND
UNIQUE FUTURE LEADERS INTERNATIONAL LIMITED – Respondent(s)
MOHAMMED MUSTAPHA J.C.A. (Delivering the Leading Judgment): The original appeal is against the judgment of the High court of the federal capital territory, of the 19th of September, 2012; presided by Honourable Justice Jude O. Okeke, sitting at Abuja.
The respondent, as plaintiff at the trial court sought by an amended writ of summons and statement of claim filed on the 27th of October, 2009 against the appellants, as defendants, the reliefs claimed therein; the 3rd appellant, as 3rd defendant filed an amended statement of defence on the 3rd of November, 2009 in response; and the 1st and 2nd appellants, as 1st and 2nd defendants filed their joint statement of defence on the 23rd of November, 2009, and later a 2nd amended joint statement of defence on the 28th of June, 2010; in response to which the respondents, as plaintiff filed a reply to the 1st and 2nd defendants amended joint statement of defence, and 3rd defendant’s amended statement of defence on the 1st of December.2009.
The two notices of appeal in this case were the 1st filed by the defendants at the trial court, to whom I shall refer to as appellants in this appeal, on the 2nd of October 2012; and the other by the plaintiff at the trial court, to whom I shall refer to as the respondent here, on the 1st of November 2012; the appellants, notice of appeal was amended with leave of this court on the 11th of February 2014, and same was deemed filed and served on the 15th of January 2013.
The record of proceedings show that the respondent called one witness at the trial court, while the 1st and 2nd appellants called two witnesses; the 3rd defendant testified on his own behalf.
At the end of the day judgment was entered for the respondent by the trial court, with damages of N500,000, against the 1st and 2nd appellants, jointly and severally, with 10% interest from the date of judgment.
All the appellants were restrained from interfering with the respondent’s title over the plot in dispute, located at 929 Cadastral Zone, 805 Utako district,Abuja.
At the trial court the respondent’s claim is for:
a) A declaration that the revocation of the respondent’s right of occupancy in the property in dispute and vesting same on the 3rd appellant is unlawful.
b) An order of specific performance, directing the 1st and 2nd appellants to receive the respondent’s Bank draft issued in satisfaction of the fees for certificate of occupancy of the plot in dispute, as well as directing the 1st and 2nd appellants to vest title of the said plot in the respondent, by issuing the necessary certificate of occupancy.
c) An order directing the 1st and 2nd appellants, jointly and severally to pay the sum of N100,000,000, to the respondent as exemplary, aggravated and general damages.
d) An order directing the 1st and 2nd appellants to pay interest to the respondent on the sum awarded in damages, at the rate of 10% per annum, from judgment, until liquidation.
e) A declaration that Tahee-zul Quran Enterprises is not a juristic person, to be vested with interest in land.
f) Alternatively the allocation of the plot in dispute to Tahfeezul Quran enterprises is illegal.
g) And an order of perpetual injunction restraining the appellants from doing any act with the parcel of land in dispute.
Dissatisfied with the judgment of the trial court, the appellants filed their notice of appeal on the 2nd of October 2012, amending same on the 11th of February 2014 on twelve grounds; with the respondent also cross appealing, as per its notice of appeal filed on the 1st of November 2012.
PRELIMINARY OBJECTION:
The respondent filed a notice of preliminary objection to the appeal of the appellant of the 2nd October, 2013 on two grounds, urging this court to strike out grounds 4, 9 and 10 of the amended notice of appeal of 15th January 2013 tor incompetence, and also to dismiss issues 5, 10 and 11 of the brief of argument of the 15th January 2013, on grounds of irregularity and incompetence, for basing same on incompetent grounds of appeal; the grounds were argued together.
The appellant in response filed a reply brief to the notice of preliminary objection/cross respondents’ brief of argument on the 5th of March 2014; in response to which the respondent filed a reply on the 11th of March 2014; all were adopted by learned counsel on the 15th of May 2014; an application for stay of execution filed on the 6th of February 2013 by agreement of counsel on both sides was ordered to abide the appeal.
Dr. Olumide Ayeni Esq., learned counsel to the respondent submitted on the preliminary objection that an appellate court will generally not allow a fresh point to be argued, on questions in the appeal, which were not raised or considered by the trial court; that same applies where the grounds for agitation do not arise from the decision appealed against. This he argued is borne out of the desire for appellate courts to have the benefit of the opinion of the trial court on every point taken on appeal to enable the appellate court review the procedure by which the trial court arrived at such decision; Direct on PC Limited v SOF Technologies Ltd (2011) 10 NWLR (Part 1256) 442
Consequently, learned counsel argued, every ground on which an appeal is based, must arise from the decision of the lower court complained against, as it has to have bearing on what the trial court decided; he contends that grounds 4, 9 and 10 of the amended notice of appeal filed on the 15th of January 2013 violated this principle- Garuba & 7 Ors v Onokhodion & 13 Ors (2011) 15 NWLR (Part 1269) 145.
By those grounds and their particulars learned counsel submitted the appellants were questioning the insufficiency of N22,395,454.88, as per Exhibit J; the amount rejected by 1st and 2nd appellants as the amount to be paid to them by the respondent as fees for certificate of occupancy and survey plan in respect of the land in dispute.
The amount in Exhibit J, as paid by the respondent learned counsel contends was not an issue before the trial court, as it rightly did not make any decision on the point and the 1st and 2nd appellants did not contest the basis upon which the fee in Exhibit J was arrived at, but merely denied receiving Exhibit J.
That the lower court as a matter of fact found that the 1st and 2nd appellants received, and wrongly returned the money in Exhibit J to the respondent; and having found the futility of their allegation of non-receipt of the money in Exhibit J the appellants now flip-flopped to challenge the insufficiency of the amount, a separate and different issue from the point agitated at the trial, he referred the court to;- Ajide v Kelani (1985) 3 NWLR (Part 12) 248; and Universal Trust Bank Ltd & 2 Ors v Dolmetsch Pharmacy Nig. Ltd. (2007) 16 NWLR (Part.1061) 520, 537.
Learned counsel submitted it would have been wrong for the lower court to indeed inquire into the insufficiency of the fees in Exhibit J, as the parties did not join issues on that point; especially as the respondent averred he paid the said amount, as per Exhibit J, in fees, for certificate of occupancy and survey plan; the 1st and 2nd appellants did not deny the fact that the amount represents what the respondent ought to have paid for the stated purpose; Ikonne v Ezeime (2011) 11 NWLR (Part 1259) NWLR (Part 1259) 536.
Any question of sufficiency or otherwise of Exhibit J, learned counsel argued amounted to a fresh issue on appeal; which can only arise by leave of court, especially as the issue is not that of jurisdiction; worse still learned counsel argued the resolution of such an issue will be impossible without calling fresh evidence, to demonstrate how the amount was arrived at Opobiyi & Anor v Muniru (2011) 18 (part 1278) 387.
Learned counsel further submitted that the position of the law is clearly that if even one of the particulars in any of the grounds of the amended notice of appeal questions the sufficiency or otherwise of the amount in Exhibit J, both the particulars and ground are rendered incompetent- Laah & Anor v Opeoluwa (2004) 9 NWLR (Part 879) 558 and Nwadike v Ibekwe (1987) 4 NWLR (Part 67) 718.
Consequently it is the contention of learned counsel that grounds 4, 9 and 10 of the amended notice of appeal being incompetent, issues 5, 10 and 11 of the appellants’ brief of argument, which flow from the incompetent grounds, are equally incompetent, and ought to be struck out.
He urged this court to uphold the preliminary objection, to prevent the appellants from changing their case from one court to the other.
In response Idumodin Ogumu Esq. learned counsel to the appellant submitted that the notice of preliminary objection filed by the respondent on the 17th of February 2014 is incompetent, by reason of the fact that it was not brought under any rule of this court, and did not state the grounds upon which it was brought.
This is so, he argued because every application to the court must state the rules under which it was brought, with the grounds upon which it was brought also stated; he referred the court to Order 7 rule 1 and Order 10 rules 1 of the rules of court, while referring to D.Y.S Trocca & Co. v Murphy Osaghae (2008) All FWLR (Part 413) at 1341; and urged the court to strike out the notice of preliminary objection, for not complying with the rules.
Learned counsel argued that even if the said notice is competent the respondent’s allegation is baseless; because ground 4 flows from the ratio decidendi of the court, as per pages 1487 – 1517; and that a decision of a court not appealed is deemed admitted, especially as there is nothing stopping an appellant from appealing against damages.
Learned counsel contended also that no leave need be sought to appeal against damages awarded against the 1st and 2nd appellants as the right of occupancy admitted by the trial court as Exhibit E, which was specifically mentioned and runs through the judgment of the court.
On ground 9 learned counsel argued it also flows from the decision of the trial court; even as the plaintiff tried to get the 1st and 2nd defendants to accept its bank draft in payment of the fees for the certificate of occupancy of the plot in dispute; he referred this court to page 1515 of record of the trial court and contended that ground 9 of the amended notice of appeal is not irregular, nor incompetent.
On ground 10 learned counsel argued that the trial judge directed the 1st and 2nd appellants to accept from the respondent fees for the certificate of occupancy, at page 1515 of the record of the trial court, and so ground 10 is the decision of the trial court, as a result it cannot be irregular or incompetent, especially as the respondent had pleaded the refusal of the 1st and 2nd appellants to accept the amount in Exhibit J at page 297-298; and also that the statement on oath of the respondent’s sole witness admitted the refusal to collect Exhibit J, as well as being in possession of the bill against which the cheque was issued during cross examination; that also the respondent throughout the proceedings refused to produce the bill against which Exhibit J was issued, a fact which was raised at the lower court, as per pages 1314 – 1315 of the record of appeal, but was never addressed.
Learned counsel contends that grounds 4, 9 and 10 of the appellants’ amended notice of appeal are complaints against the decision of the trial court and were raised and considered by the trial court, having arisen from the decision of the said trial court; he urged this court to dismiss the notice of preliminary objection.
In reply learned Dr. Olumide Ayeni Esq. submitted that in respect of any application or motion Order 7 rule 1 is clear as to the requirement that “every application shall be by notice of motion supported by affidavit, and shall state the rule under which it is brought and the ground for the relief sought.”
That on the other hand in the case of a notice of preliminary objection as in this case, the only requirement is that the respondent “shall give the appellant three clear days’ notice thereof before hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time”; a requirement which they have fulfilled.
Learned counsel further submitted that there is no requirement that a notice of preliminary objection shall bear on its face the rule under which it is brought; and also that by order 10 rule 3 the only ground such an objection may be regarded incompetent is if rule 1 is not complied with or if the objection is taken on the ground that the amount fixed by the registrar of the court bellow under order 8 rule 2(b) were in correctly assessed.
He argued, there is no basis for holding the objection incompetent; and referred the court to Odive v Obor & anr (1974) 1 All NLR 394-400, and contended that most importantly, the preliminary objection has been given in the respondent’s brief, with all its details and particulars, with ample opportunity afforded the appellants to respond, with no ambush laid-Agagu v Mimiko & 18 Ors (2009) 7 NWLR (part 1140) 342; Nsirim v Nsirim (1990) 3 NWLR (part 138) 285 ; the contention being that no issue was raised or joined on the contentious issue by the pleadings, and no evidence led. As such the court will not embark on a search for skirmishes; especially he argued, it is not the business of the court to inquire into whether a tax clearance was obtained by the company before land was allocated to it, or that the respondent has not reached 3 years to acquire tax clearance by 18.06.2006.
On the issue of damages it was submitted on behalf of the respondent that there is no rule requiring documentary evidence to establish damages, as what is required is only such proof as would lend itself to assessment-Osuji & anor v Isiocha (1989) 3 NWLR (part 111) 623; and also that the trial court ignored the case made by the respondent at the lower court for damages, thus entitling it to agitate it in this court.
Having gone through the records, the submissions of learned counsel and authorities cited, this court holds the view that preliminary objections, contrary to the submission of learned counsel to the appellants do not have to state the rules under which they are brought, to be competent; the case may be so in respect of other applications; as order 7 of the rules of court makes it clear enough, that applications to the court shall be by motion supported by an affidavit, and shall state the rules under which such applications are brought, and the grounds for the reliefs.
Granted, a notice of preliminary objection is an application, in a generic sense, but as far as such notices are concerned the basic requirement is that the appellant be given three clear days’ notice before hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time frame; Paul Masu Esq., v John Udeagbala & and Anr (2011) LPELR 4833 CA; clearly this requirement has been met by the respondent in this case.
It is not necessary, in my considered opinion, in the circumstances, that a notice of preliminary objection should bear the order under which it is brought; this belief is also borne out by the authority of Paul Masu Esq., (supra), where it was held that:
“…the fundamental nature of respondents’ objection that borders on the court’s competence dictates it still be considered notwithstanding the respondent’s non compliance with the rules of this court.”
According to Order 10 rule 3 of the rules of this court the only scenario that necessitates such compliance is where amount fixed by the registrar of the lower court is incorrectly assessed, under order 8; that does not appear to be the case here.
This I hold has nothing to do with disobedience to rules of court; on the contrary the respondent is in compliance. The authority of D.Y.S Trocca & Co v Murphy (supra), referred to by learned counsel to the appellant does not apply to this case at hand; this is more so because the respondent has given the full details of his objection in its brief, with particulars to boot; the appellant thus given all the opportunity to respond; Agagu v Mimiko & 18 Ors (supra).
Accordingly, this court holds the view that the preliminary objection is well founded.
Grounds 4, 9 and 10 of the amended notice of appeal of the 15th January, 2013, as well as the prayer to dismiss issues 5, 10 and 11 of the appellants’ brief of argument filed also on the 15th January, 2013, learned Dr. O. Ayeni Esq., of counsel to the respondent contends are irregularity and incompetent.
His grouse is that the appellants sought to agitate fresh arguments on questions in the appeal, which were not raised or considered by the trial court; that the grounds did not arise from the decision of the trial court, as they have no bearing to what the trial court decided. The said grounds in issue are reproduced hereunder alongside their particulars:
Ground four:
“the learned trial judge misdirected to award plaintiff N500,000 damages and ten percent interest on it on the ground that plaintiff was denied profitable use of the land and failure of 1st and 2nd defendants to recognize and give effect to plaintiff’s title.”
Particulars of error:
a) Plaintiff has not furnished a single consideration and has not paid even a kobo into the coffers of the 1st and 2nd defendants towards the purported acquisition of the land in issue to have suffered damages worth N500, 000.
b) Plaintiff did not accept the offer in Exhibit E to have suffered damages worth N500,000.
c) Plaintiff did not apply for approved building plan and no approval given to build any structure on the land and did not build on it to have suffered damages or to have given intention to use the property in accordance with the law.
d) Plaintiff did not comply with any condition of grant to have suffered damages or put into use the property.
e) Plaintiff was never given any right of occupancy rent fees or any bill of charges to pay the purported Exhibit J and which Exhibit J was never received by 1st and 2nd defendants to warrant damages.
f) The circumstance of the case on issue of double allocation would not have made it possible for the plaintiff to make use of the land or give effect to plaintiff s title until resolution of dispute.
g) It was the learned trial judge that held: “the court holds the view upon a sober and calm overview of what transpired between the parties that the conduct of the 1st and 2nd defendants in granting the land to Tahfeezul Quran enterprises – a party without the requisite capacity to acquire or have title over land vested in it may not have been out of a deliberate desire to grant the land to a party without capacity to hold land. It does appear to the court that their conduct may have been on account of ignorance of the state of the law on such a matter in respect of which the law is somewhat recondite. Their conduct is therefore not malicious or out rightly arbitrary” which finding would have ruled out the award of damages against the 1st and 2nd defendants.
Ground 9:
The learned trial judge erred and made a wrong findings (sic) of fact that plaintiff had tried in vain to get the 1st and 2nd defendants accept its bank draft in payment of the fees for the certificate of occupancy in respect of the plot.
Particulars:
a) Plaintiff was not issued any bill by the 1st and 2nd defendants and none tendered to pay any fee.
b) The title of plaintiff was denied by the 1st and 2nd defendants.
c) Exhibit J was not presented to 1st and 2nd defendant.
d) Exhibit J is not application fee for land, is not ground rent fee, is not premium fee, and is not certificate of occupancy fee, a photocopy.
Ground ten:
The learned trial judge erred in law to direct the 1st and 2nd defendants to accept from the plaintiff the fees for issue of the certificate of occupancy to it within two months from the date of judgment.
Particulars:
a) No bill of charges was issued to the plaintiff to pay by the 1st and 2nd defendants.
b) lt is plaintiff that concocted his own bill.
c) Plaintiff has no valid statutory right of occupancy.
At the risk of sounding cliche, I venture to say that parties indeed are bound by their pleadings, that much is trite; I have gone through the record of proceedings of the trial court, particularly paragraph 18b of the amended statement of claim and paragraphs 12(uu) and 12(vv) of the 1st and 2nd appellants’ amended joint statement of defence; and fail to see how grounds 4, 9 and 10, with their respective particulars could be said to have arisen from them.
Paragraph 18b of the amended statement of claim referred to above for the avoidance of doubt states:
“The 1st and 2nd defendants on the 26th of January, 2009 wrongfully and maliciously refused to collect the plaintiff’s UBA manager’s draft in the sum of N23,395,424.88. A copy of the UBA manager’s draft dated 26th January, 2009 is attached as annexure P8A.”
Paragraph 12(uu) states:
“Paragraph 18b of plaintiff’s statement of claim is as annexed is denied as 1st and 2nd defendant or their agents never received UBA manager’s draft in the sum of N23,395,424.88 from plaintiff on 26/1/2009 as the 1st and 2nd defendants agents cannot endorse on a manager’s cheque as depicted in annexure P8A of plaintiff: a manager’s cheque cannot be a complete A4 paper and if a cheque or manager’s cheque is refused, the agents of 1st and 2nd defendants will not deface the cheque or draft by stamps.”
Paragraph 12(vv) states:
“Annexure P8A of plaintiff was made by plaintiff and its agents to create a semblance before this court that it has paid, whereas plaintiff has never once paid any money or kobo to 1st and 2nd defendants.”
Clearly these paragraphs of the statement of defence are denying receiving Exhibit J, i.e. the N22,395,424.88, fees for survey plan and certificate of occupancy; and grounds 4, 9 and 10 with their particulars are without doubt challenging the sufficiency of the amount therein.
It should be noted that from the record that the question of whether Exhibit J represents the correct amount to have been paid was not an issue before the lower court; the basis upon which Exhibit J was arrived at does not appear to have been contested either; so to now turn around on appeal to challenge the sufficiency of the amount which was not contested hitherto appears in the circumstances inappropriate, to say the least, without obtaining leave from either this or the trial court; “…generally, an appeal is regarded as a continuation of the original suit, rather than the inception of a new action…in an appeal parties are confined to their case as pleaded in the court of first instance. They are not allowed to make a new and different case…without the express leave of court…Adegoke Motors Ltd v Adesanya & Anor (1989) LPELR 94 (SC).
Learned counsel to the appellants contends rightly, that there is no law prohibiting an appeal against damages awarded, but he went further to argue that leave of court is not necessary in the circumstances; that in my considered opinion cannot be so, as this court’s view in this regard was made clear in Roba Investment Ltd v Arewa Metal Containers Ltd (2010) LPELR-4900 (CA).
It is contended for the appellants that ground nine arose from the lower court because the lower court made a finding that the plaintiff sought in vain to get the 1st and 2nd defendants to accept its bank draft in payment of fees for the certificate of occupancy; that indeed is the appellants, albatross, as that ground too, like the 4th was not the issue at the lower court, ditto for ground ten.
The law is trite that an appellate court will not allow fresh arguments on appeal, especially if they were not raised before the lower court; this is informed by the desire to benefit from the opinion of the lower court; “it is bad in law for a party to argue on appeal a case alien to the case he argued in the trial. An issue, new or alien to that argued during trial is incompetent for consideration on appeal, except leave is first sought and obtained in the court of appeal to introduce same appropriately” – Akuneziri v. Okanwa (2006) 17 NWLR Part 691 at 526.
Having gone through the amended notice of appeal filed on the 15th of January 2013 I find grounds 4, 9 and 10 of same not to have arisen from the trial at the lower court; “grounds” for this purpose include particulars of the said grounds.
This court is not oblivious of the need or desirability to hear cases on their merit, in the interest of justice, but there is an even greater need to adhere to the law, in the same interest of justice. While one is tempted to disregard the objections so that the merit of the offending grounds could be considered for what they are worth, the ends of justice will be better served to uphold the objection; that explains why justice is a double edged sword; accordingly grounds 4, 9 and 10 are struck off for incompetence, as well, issues 5, 10 and 11, dismissed for arising from same.
MAIN APPEAL:
Having resolved both the opposition to the preliminary objection and the preliminary objection this court now proceeds to determine the substantive appeal.
The facts leading to this appeal were earlier stated.
The appellant formulated the following issues for determination by this court; bearing in mind that issues 5, 10 and 11 have been dismissed along with grounds 4, 9 and 10 no reference will be mad to them, understandably:
1. Whether the judgment of the learned trial judge is competent and the court has jurisdiction to consider and grant plaintiff’s claim on an amended statement of claim not deemed by the court as properly filed and served; ground twelve.
2. Whether Isaac Abiodun is a director of the respondent (plaintiff) and his evidence vitiated by falsehood; ground one.
3. Whether “unique future leaders international limited” is the same as “unique future leaders Int’l Ltd”; ground two.
4. Whether exhibit E is accepted in writing and has commenced and is competent or genuine as a document of title to land to vest title to the plaintiff (respondent); ground three.
5. Struck out.
6. Whether the 3rd defendant (3rd appellant) can do business, trade and enter into contract to acquire land in federal capital territory and or acquire land in federal capital territory in a business name duly registered; ground five.
7. Whether the trial judge rightly applied section 37 of the companies and allied matters act, C.20 LFN 2004 and non existing sections 679, 652 to 672 of companies and allied matters act, Cap. C20, Laws of the federation of Nigeria, 2004 to the capacity of a business name acquiring land; ground six.
8. Is plaintiff entitled to plot 929, Cadastral Zone B05, Utako, Abuja? Ground seven.
9. Whether finding of first in time grant of plot 929, Cadastral Zone B05 Utako district, Abuja to 3rd defendant (3rd appellant in this appeal) should prevail; ground eight.
10. Struck out.
11. Struck out.
12. Whether a perpetual order of injunction in favour of the plaintiff against the defendants is appropriate when exhibit E is a lease of 99 years and 3rd defendant first granted the plot no. 929 cadastral zone B05 Utako Abuja, FCT; ground eleven.
13. Is the judgment justified; ground 13.
Dr. Olumide Adeniyi Esq., learned counsel to the respondent on his part formulated the following issues for determination:
1. Whether the trial court acted correctly when it relied on the evidence of PW1 who testified on behalf of the plaintiff as its managing director in finding in favour of the plaintiff; ground one.
2. Whether the trial court acted correctly in relying on Exhibit E, which is the offer of statutory right of occupancy dated 18th June, 2006 in finding for the plaintiff in the entire circumstances before it; ground three.
3. Whether the order allowing specific performance, damages as well as injunction made by the trial court were proper on the basis of the entire material and evidence before it; ground 11.
4. Whether the business of Tahfeezul Quran Enterprises is in the entire circumstances devoid or bereft of capacity to hold land in its name eo nomine, having regard to the position of the law; ground 6.
5. Whether the findings made by the trial court were proper and correct having regard to the entire circumstances on the state of material and evidence before it; grounds 2, 7, 8 and 13.
6. Whether the trial court’s holding on the amended writ of summons and statement of claim filed on the 6th of July, 2009 as the process pleading the reliefs sought by the respondent as plaintiff before it is insufficient upturn its judgment.
It is the considered opinion of this court that the issues formulated for determination by the respondent will suffice, as they aptly address the bone of contention on both sides, as they arise from the grounds still left.
On issue one:
Whether the trial court acted correctly when it relied on the evidence of PW1 (Mr. Isaac Abiodun) who testified on behalf of the plaintiff as its managing director in finding in favour of the plaintiff.
The record shows that Mr. Isaac Abiodun testified before the trial court as PW1; he held out himself as the respondent’s managing director, in both examination in chief and cross examination, that claim is backed by Exhibit M.
It is argued for the appellants that the PW1 is neither a manager nor a managing director, as claimed. Because Exhibit M was made on the 5th of October, 2010, while the suit was filed on the 13th of February, 2009, among other things; that the said exhibit ought not to have been admitted in the first place, as it contravened Section 83(1) of the Evidence Act, and also that Exhibit L along with evidence led by DW2 controverted the claim of PW1 being a managing director; that since his evidence was based on falsehood it should be struck out; learned counsel referred to Orji v Anyaso (2000) 2 NWLR Part 643 at 19
The respondent’s response is that he was appointed a director as far back as 6th December, 2008, by the board of directors, in compliance with section 248(1) of the companies and Allied Matters Act, that the said witness was competent; learned counsel referred the court to Sale v Bank of the North Ltd (2006) 6 NWLR part 976, and Dragetanos Construction Nigeria Ltd v Fab Madis Ventures Ltd & Anr (2010) 16 NWLR Part 1273.
Having said all that, it begs the question, whether the PW1 has to be a director or managing director to be competent to testify as he did, and I venture to say he does not have to be either, as long as he is an officer of the respondent, an incorporated entity.
Paragraph 11 of the amended statement of claim; paragraphs 1, 9, 11 and 20 of the said witness’ statement on oath, of the 27th of October, 2009 and additional statement on oath of the 1st December, 2009 all demonstrate that the witness in question is a director at least; “Before a piece of evidence can be discountenanced for contradiction it must be material to the determination of the issue. Assuming the nature of contradiction is such that it will affect the credit of the witness… It should not necessitate wiping out of the whole testimony of a witness, since a court can believe the evidence of a witness in part and disbelieve or reject the other part…” Lawson v Afani Cont. Co. Ltd (2002) 2 NWLR Part 752 at 585 and in any event as rightly submitted for the respondent, evidence is not required to be pleaded, but facts are, in that regard, especially as his position in the respondent or his competence was not specifically an in issue at the trial, the main issue being the admissibility or otherwise of exhibit M, on which the trial court ruled; Fojule v Federal Mortgage Bank of Nigeria (2001) 2 NWLR Part 697 at 384.
This court in the light of the above holds the view that the trial court was right to have relied on the evidence of PW1; this issue as a result is resolved in favour of the respondent, and against the appellants.
Issue two:
Whether the trial court acted correctly in relying on Exhibit E, which is the offer of statutory right of occupancy dated 18/06/2006 in finding for the plaintiff in the entire circumstances before it.
Exhibit E is the offer of statutory right of occupancy dated 18th June, 2006, issued to Unique Future leaders Int’l limited; it is the argument for the appellants that the said name is not incorporated in accordance with the Companies and Allied Matters Act, and therefore incompetent; especially as 1st and 2nd appellants denied making the said exhibits; and that the offer was not accepted in writing by the respondent as required, even if it were the said company. Learned counsel referred the court to S.L.B v NNPC (2011) 9 NWLR Part 1252.
It is argued for the respondent that exhibit E is binding on the parties, while admissible; that the trial court rightly relied on same especially as the 1st and 2nd appellants acknowledged by exhibit D receipt of the respondent’s application for grant of statutory right of occupancy, on the land in dispute, together with the processing fee; that the acknowledgement showed the correct name of the respondent.
It is further submitted for the respondent that any effort at discrediting exhibit D and M are puerile, as no evidence was led by the appellants to rebut these documents; he referred the court to Whyte & 5 Ors v Jack & 2 Ors (1996) 2 NWLR part 431; that also Exhibits G and EE connote acquiescence and waiver of any alleged non compliance.
From the record this court cannot help but arrive at the conclusion that the 1st and 2nd appellants acknowledged, by implication the respondent’s payment of fees for a grant of statutory right of occupancy on the land in dispute, this is so because the application was accompanied by the memorandum and articles of association, along with the certificate of incorporation, bearing the exact name of the respondent, in consequence of which exhibit E was issued.
In the face of all these evidence it is not enough merely to deny issuing the said document, especially in view of Exhibits G and EE; the irresistible conclusion is that the respondent did comply, otherwise, as it is rightly argued the reallocation of the plot in dispute would not have even been contemplated; anything short of that will be akin to giving with the left hand and taking it right back with the right, the effect of which, in the absence of any record of complaint on the part of the 1st and 2nd appellants at the material time, amount to prejudice for the respondent.
The trial court therefore in the opinion of this court rightly relied on Exhibit E; this issue is resolved in favour of the respondent and against the appellants.
Issue three:
Whether the orders allowing specific performance, damages as well as injunction made by the trial court were proper on the basis of the entire material and evidence before it.
It is argued for the appellants that the trial court erred in granting an order of perpetual injunction to the respondent, because exhibit E has a lifespan of only 99 years, after which absolute interest in the land in dispute reverts back to the federal government of Nigeria, who is not a party in this action; that the import of the injunction so granted is that even after the 99 years respondent will lay claim to the land in dispute, by reason of the injunction; learned counsel referred the court to Olobodun v Lawal (2008) 17 NWLR (part 115) 1 at 34; and section 5(1) of the land use Act.
It is submitted for the respondent that the order of perpetual injunction by the trial court operates only as long as the interest subsists; Anyanwu & 5 Ors v Uzowuaka & 13 Ors (2009) 13 NWLR (part 1159) at 145H; that Tahfeezul Quran an unincorporated entity, a mere business name cannot acquire land in its name.
Learned counsel to the respondent also submits that the land was allocated to the respondent, as found by the trial court and that specific performance ought to be allowed to enforce a breach or repudiation of obligations; he referred the court to Ezenwa Oko & 2 Ors (2008) 3 NWLR (part 1075) at 610; and further submitted that the award of damages flows from the consequence of breach, which entitled the respondent be restored, to a position it would been if there was no breach.
It is the considered opinion of this court, and also trite that damages are awarded invariably as a consequence of some breach suffered, with the intention of restoring the offended party to a parity of sorts; in the instant case evidence was led, to establish the breach; the trial court believed same, assessed and awarded the sum of N500,000 to the respondent; the award from available evidence, is clearly within the competence of the trial court; “it is well settled that the award of damages by a trial court can only be upset by an appellate court if that court feels that the trial court acted on wrong principles of law or that the amount awarded by the trial court is extremely high or low. The appellate court ought not to upset the award of damages by a trial court, merely because if it had tried the matter it would have awarded a lesser amount.” Williams v Daily Times (1990) 1 NWLR part 124.
The trial court in the opinion of this court acted within the permissible limits of the law, no more; the refusal of the trial court to find for the respondent in exemplary and aggravated damages takes nothing away from the award of N500,000 so adequately made.
Specific performance on the other hand was ordered to enforce the subsisting contract, as evidence shows, especially the allocation of the land to the respondent; the court arrived at this decision taking into account Exhibits E, G, and EE among other things. The decision of the trial court in this regard cannot be faulted.
This court, like the trial court has not seen any justification, from what is available on the record, for the 1st and 2nd appellants to refuse payment for the certificate of occupancy, in satisfaction of the terms of contract between the two parties.
The perpetual injunction order on the other hand is borne out of necessity. The trial court found the need to secure the respondent’s title in the circumstances; and it is only for as long as it subsists, no more. The question of the injunction outliving the title does not arise; “in addition perpetual injunction is based on final determination of the rights of parties, and it is intended to prevent permanent infringement of those rights and obviate the necessity of bringing action after action in respect of every such infringement.” Oguejeofor v. Afam (2011) LPELR – 4691 (CA).
This court finds that the orders of the trial court were proper, on the basis of the material and evidence before it, and thus resolves this issue in favour of the respondent, against the appellant.
Issue four:
Whether the business name of Tahfeezul Quran Enterprises is in the entire circumstances devoid or bereft of capacity to hold land in its name eo nomine having regard to the position of the law.
Learned counsel to the appellants argued that the federal government of Nigeria can grant a statutory right of occupancy to any person, through the minister of the federal capital territory. That “person” is not defined by section 51 of the Land use Act. He contends that section 81 of the Interpretation Act’s definition of ‘person’ includes “anybody of persons or corporation”, and that definition suffices for the determination of whether the 3rd appellant qualifies as a person within the con of the judgment of the trial court now appealed.
It is argued for the appellants that, since Tahfeezul Quran enterprises is a registered firm, the 3rd appellant is a person, with capacity to do business and acquire land, and that the trial court was wrong to hold otherwise.
The bone of contention here is whether Tahfeezul Quran is a registered business name, with capacity to own land; there is no such problem in the case of a limited liability company, which the 3rd appellant is not; as by section 37 of the companies and Allied Matters Act Cap 20, a limited liability has the capacity to hold land in its own name.
In the considered opinion of this court, in total agreement with the trial court, that a business name, such as the 3rd appellant, does not have the requisite capacity to hold land in its name; and as rightly held by the trial court, if a business name like the 3rd appellant were so qualified to hold title to land in its own name, the Act would have made that clear, abundantly, as it did so for limited liability companies or incorporated trustees.
DW2’s evidence as per Exhibit K3 clearly identified Tahfeezul Quran as a business name, without the requisite personality to acquire title to land in its own name; the totality of evidence before the trial court, particularly exhibits K40, X and N are particularly unconvincing, to the trial court, as well as this court with regard to partners in Tahfeezul Quran enterprises.
“…an unincorporated body is not a juristic person and cannot enter into any contract or transaction and/or own land in its unincorporated name, save through trustees.”Bakole & Ors v Emir Industries Ltd (2012) LPELR-19719 (CA).
Capacity to hold land, is not, and cannot be equated by any means to capacity merely to sue and be sued; the trial court was not convinced from the evidence available to it that the 3rd appellant is a juristic person, capable of acquiring title to land in its name, neither is this court; and the argument that the 1st and 2nd appellants have authority to grant right of occupancy to anyone cannot mean that to include a business name as the 3rd appellant.
This court does not subscribe to the argument, for the appellants, that, “… both corporate and unincorporated” persons or entities are given statutory right of occupancy under Section 5(1) of the Land Use Act. The use of the word “include” cannot by any stretch of imagination be taken to mean non-juristic persons could be granted title to land; that will not only be farfetched, but amount to turning both law and logic on their heads.
This issue is resolved without difficulty in favour of the respondent, and against the appellants.
Issue five:
Whether the findings made by the trial court proper and correct having regard to the entire circumstances on the state of material and evidence before it.
Generally speaking, an appellate court will not disturb the findings of a trial court, except where same is found to be perverse, “…a perverse finding is one which ignores the facts or led evidence before the court, and when considered as a whole amounts to a miscarriage of justice…” Plateau State Government v Crest Hotel 7 Garden Ltd (2012) LPELR 9794 CA.
It is argued for the appellants that ‘Unique Future Leaders Int’l’ is not incorporated; the argument is based on the assumption that the abbreviation of the word “international” to “Int’l” has changed the name.
Having regard to the evidence as a whole, and particularly Exhibits A, C, E, and I, this court cannot help but arrive at the irresistible conclusion that the respondent is indeed one and the same with Unique Future Leaders Int’l, regardless of the abbreviation of the name.
The respondent, from available evidence, did not abbreviate its name to “Int’l”, the 1st and 2nd appellants did, in the course of processing the respondent’s application, as it is rightly argued; and in any case the abbreviation did not materially change the character of the name in question. Standard abbreviations are common and accepted norm in everyday life; but most importantly, there is nothing to show that any of the appellants were misled by the identity of the respondent; the trial court was right in its findings in this regard; having said that, it is necessary to draw attention to the provisions of Section 29(1) of the Act to buttress the position of this court, it states:
“(1) the name of a private company limited by shares shall end with the word ‘limited’.
“(5) a company may use the abbreviation “Ltd”, “Plc”; “Ltd/(tte)” and “Ltd” for the words “limited” “public limited company” respectively in the name of the company.”
Clearly this shows that the Act accepts the use of abbreviations; and the abbreviation referring to the respondent is similar to those encouraged by the Act.
The trial court could not rightly apply the principle in Danshoho v Mohammed (supra) as suggested by learned counsel to the appellants because it found Tahfeezul Quran enterprises had no valid title, and so had to grant title to the respondent, as the only other person with a competing interest; and having found Tahfeezul Quran enterprises not to have valid title the presence of Alhaji Abubakar Siddeeq Muhammad means little or next to nothing.
On the whole, the findings and conclusions arrived at by the trial court, having regard to the evidence before it at the trial were proper, and correct in law; leading this court thus to accordingly resolve this issue in favour of the respondent, and against the appellant.
Issue six:
Whether the trial court’s holding of the amended writ of summons and statement of claim filed on the 6th of July, 2009″ as the process pleading the reliefs sought by the respondent as plaintiff before it is insufficient to upturn its judgment.
Learned counsel to the appellants submits that the trial court was incompetent, and therefore wrong to have granted reliefs on the respondent’s amended writ of summons and statement of claim dated 6th 2009, as the said process was not deemed properly filed and served by the trial court. The implication, it was further argued is that, in law the said process does not exist.
Learned counsel further contended the reliance on the no existent writ is not accidental, and even if it were the proper court to correct the slip would be the trial court; he referred this court to Intra Motors Nigeria Plc v Akinloye (2001) 6 NWLR part (708) at 1 and McCarthy v Agard (1933) 2 KB at 417.
It is submitted for the respondent that the reference complained of is nothing more than a slip by the trial court as the record indicates, and in any case there is nothing in the mis-reference to indicate that it resulted in the appellants’ case not being considered either on the facts or on arguments presented before the trial court; learned counsel referred this court to Amasike v The Registrar-General, Corporate Affairs Commission & Anr (Part 1211) at 374.
The question that now arises is whether the trial court’s reference to the said process is merely an error, no more than a slip.
This court is satisfied from the record that the process by which the suit was determined is the amended writ of summons and statement of claim filed on the 27th of October, 2009, sequel to an order made on the 26th of October, 2009; in response to which the 1st and 2nd appellants filed their joint statement of defence on the 28th of June, 2010. This also followed an order made the same day; while the 3rd appellant filed its amended statement of defence on the 3rd of November, 2009.
It is equally clear that the judgment of the trial court is based on the addresses filed by counsel, which clearly indentified their respective pleadings. Now, that being the case, the trial court’s reference to the process filed on the 6th, it has to be concluded is a slip; no other explanation can make much more sense. That being so, “…it will not be in the interest of justice for an otherwise excellent judgment to be overturned judge’s technical slip, which has not been shown to be fatal or such as would occasion a miscarriage of justice.” University Press Ltd v I.K. Martins Nigeria Ltd (2000) 4 NWLR (Part 654); the Supreme Court reiterated this in Fadlallah v Arewa . Ltd (1997) 8 NWLR (Part 518) at 546, when it held; “it is not every slip committed by a court that will result in an appeal against the judgment being allowed. An error or slip that may have the result of the appeal being allowed must be fatal in the sense that it must have occasioned a miscarriage of justice.
The case for a slip becomes more compelling, in the considered opinion of this court when account is taken of the fact that the respondent’s counsel did not rely on the process filed on the 6th of July, 2009, throughout his address before the lower court, and the lower court on all occasions referred to that address where the need a rose.
More importantly, the amended writ of summons and statement of claim of the 6th July, 2009, complained of is the same in all material respects with that of the 27th of October, 2009; even the reliefs are exactly the same in both writs. So reference to the writ and statement of claim of the 6th of July,2009 did not, as it could not have occasioned any miscarriage of justice; clearly the error or mistake as it is, is nothing, more than an irregularity; and this belief is supported by the authority of Amaechi v INEC (No.3) (2007) 18 NWLR (Part 106) 5, where it was held: “that the principle is to the effect that where an action is commenced by an irregular procedure, and a defendant took steps to participate in the proceeding, as in the instant case, he cannot be heard later to complain of the irregularity, as a person will not be allowed to complain against he himself has accepted, waived or acquiesced.”
“…the defect is extrinsic to the adjudication. If the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. lt may turn out that the party complaining was to blame, or had acquiesced in the irregularity or that it was trivial; in which case the appeal court may not think fit to set aside the judgment. A defect in procedure is not always fatal.” Adeigbe & Anr v Kusimo & Ors (1965) NSCC 188.
While it is conceded by both sides that there was a mix up of sorts, resulting in the irregularity complained of in the proceedings at the trial court, same did not occasion any miscarriage as to warrant interference with the decision of a competent court by this court; for the same reason this issue too is resolved in favour of the respondent, and against the appellant.
Having resolved all the issues in this appeal in favour of the respondent, and against the appellant, this court now dismisses this appeal, with number CA/A/614/2012 for lack of merit and affirms the decision of the trial court appealed against.
N30,000. Cost is awarded for the respondent, against the appellant.
CROSS APPEAL:
UNIQUE FUTURE LEADERS INTERNATIONAL LIMITED (CROSS APPELLANT)
AND
1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
2. MINISTER, FEDERAL CAPITAL TERRITORY
3. ALHAJI ABUBAKAR SIDEEQ MUHAMMAD
(Trading under the name and style of Tahfeezul, Quran Enterprises)- -(CROSS RESPON DENTS)
JUDGMENT:
Cross appellant is appealing against the judgment of the trial court, on six grounds, as set out in the notice of appeal dated and filed on the 1st of November, 2012; the following issues were formulated for determination by the cross appellant, to which I shall henceforth refer to only as appellant:
1. Whether from the totality of evidence adduced, plot 929 (107A) granted to the cross appellant and plot 107 are one and the same, and whose interest was first in time over the said plot.
2. Whether the acts of the 1st and 2nd cross respondents were arbitrary, capricious and malicious to entitle the cross appellant to exemplary, aggravated and general damages of N100,000,000.
3. Whether the judgment of the trial court in respect of that part complained about against the weight of evidence.
In response the cross respondents, to whom I shall also refer to as the respondents formulated the following issues for determination by this court:
1. Whether the plot claimed by the appellant is the same with the plot of land allocated to the 3rd respondent.
2. Whether the appellant has not accepted that it was not granted plot 929 vide exhibit E; and that the title ought to vest in the 3rd respondent.
3. Whether there is evidence of statutory right of occupancy, revocation and reinstatement of grant to 3rd respondent, and what effect.
4. Whether there is evidence before the lower court in support of arbitrary, capricious and malicious exercise of executive power by the 1st and 2nd respondents against the appellant to warrant aggravated exemplary and general damages.
5. Whether there is evidence before the lower court that the respondents did anything wrong against the appellant to incur damages.
6. Whether from the weight of evidence the plot in issue ought to be given to the 3rd respondent and the appellant’s claim dismissed.
The issues for determination as formulated by the appellant suffice for the determination of the issues at stake in this cross appeal:
Issue one:
Whether from the totality of evidence adduced, plot 929(1074) granted to the cross appellant and plot 107 are one and the same, and whose interest was first in time over the said plot.
The contention of learned counsel to the appellant on this issue is that Exhibits E, G and H demonstrate that plot 929 or 107A is different from plot 107, especially as their measurements are different, with plot 929 measuring 2.2 Hectare and plot 107 measuring 1.2 hectares; this he argued is not withstanding oral evidence led to demonstrate otherwise, as documentary evidence weighs more than oral evidence, and so more credence ought to be attached to it; he referred the court to Salzgitter Stahl Gmbh v Tunji Dosumu Industries Ltd (2010) 11 NWLR (Part 1206) at 589.
Learned counsel further submitted that exhibit K18, Utako district plan layout, admitted DW1 confirms the distinction between plots 929 or 107A and plot 107; and also that if exhibit BB proved reinstatement to the 3rd respondent as alleged, Exhibit G of 19th of February 2009, written by an officer of the 1st and 2nd respondents would not have been asserting that the property stood revoked from the 3rd respondent, especially as DW2 admitted during cross examination that those conditions have not been met, the effect of which is that any right conferred stands in abeyance until fulfilment.
That also the interest of the appellant in respect of plot 929 or 107A is first in time, and should prevail; he referred to Nigeria Deposit Insurance Corporation v Okem Enterprises Ltd & Anr (2004) 10 NWLR (Part 880) at 107.
It is argued for the respondent that by the appellant’s own admission vide Exhibit A the appellant was created on the 8th of December, 2005; that exhibits K, K1 and K47 are testaments to the fact that the 3rd respondent applied for land on the 10th of July,2002, and was granted a statutory right of occupancy on the 22nd of October, 2002, when the appellant was not created; that also Exhibit K18, a sketch map of the plot in dispute plot 107A is clearly written where plot 929 is located; and also that when Exhibit K29 was made, allocating plot 929 to the 3rd respondent the appellant was not created.
Clearly there appears to be some discrepancy with regard to the description of plots 929 or 107A and 107, as pointed out by learned counsel to the appellant, there is a difference in their respective sizes, as Exhibits K5, K7, 10 and even Q stated, 1.2 hectares as against 2.2; but having said that, it appears to this court ,indeed as it did to the lower court, that from available evidence, some of which were made long before proceedings in this case were anticipated that plot 929 Utako district was also referred to as 107A old, by the officials of the 1st and the 2nd respondents, who were responsible for processing same, and its allocation.
This court shares the view of the trial court which observed that : “… the difference in size… appears to be a manifestation if in exactitude on the part of the officials of the 1st and 2nd defendants who processed the allocation”, as the difference in size appeared in documents issued to the 3rd respondent as well as the appellant by the officials of the 1st and 2nd respondents, particularly Exhibits K13, K17, R, G; and therefore difference in size alone is no reason to believe that the plots are different; the fact of the two plots being the same was noted and observed on its visit to the locus in quo; that “…both parties took the court to the same location and showed the same portion of land as being the land in dispute…” This court is in total agreement with the trial court as to the fact of plots 929 or 107A and indeed 107 being the same.
On the question of whose interest comes first, between the appellant and 3rd the respondent, Exhibit E shows that the appellant was allocated the land on the 18th of June 2006; but as pointed out in earlier parts of this judgment “unique future leaders international” and “unique future leaders Int’l” are one and the same person, referring to the appellant; it is needless to repeat the same argument all over again, but for the avoidance of doubt, both clearly refer to the same person, and no one was misled by the abbreviation.
The appellant and the 3rd respondent from available evidence acquired their titles through the same 2nd respondent; and having earlier found that the 3rd respondent as a business name had no capacity to acquire land, by reason of being a non-juristic person, the grant made to it, is patently invalid, because capacity to sue,, which Tahfeezul Quran Enterprises has is different from capacity to acquire and hold land in perpetual succession, which it does not have; the lower court rightly declared it null and void; by this, the answer to the question whose title is first in time, between the 3rd respondent and the appellant is answered, it is the appellant that has a priority of title in the same token.
This issue is now settled in favour of the appellant and against the respondents.
Issue two:
Whether the acts of the 1st and 2nd cross respondents were arbitrary, capricious and malicious to entitle the cross appellant to exemplary, aggravated and general damages of N100,000,000.
It is submitted for the appellant that PW1 testified, leading evidence to establish the destruction of improvements on the property in dispute, as well as materials worth N65 million; that the 1st and 2nd respondents arrested and detained the appellant’s foreman, while he was working on the site.
These as well as the effort to withdraw the appellant’s title learned counsel argued demonstrated the wanton lawlessness of the 1st and 2nd respondents; that the conduct of the 1st and 2nd respondents ought to be found arbitrary and oppressive; he referred the court to Eliochin Nigeria Ltd & Ors v Mbadiwe (1986) l NWLR (Part 14) at 47 and Odiba v Azege (1998) 9 NWLR (Part 566) at 370.
It is submitted for the respondents that the no evidence of malice, arbitrariness or caprice was established at the trial court against the 1st and 2nd respondents to warrant the award of N100,000,000 as damages; that sentiments have no place in law; learned counsel referred the court to Ogbiri v N.A.O.C. Ltd. (2010) 14 NWLR (Part 1213) at 208.
This court is of the considered opinion after taking into account submissions of learned counsel, and arguments on both sides of the divide that the appellant did not establish arbitrary, and malicious exercise of power by the 1st and 2nd respondents, to warrant the award of N100,000,000 to it; even if the court believed the evidence of PW1, the only witness for the appellant, hook line and sinker, it amounts to little, as no basis was established to entitle the appellant to the amount prayed. What appeared to irk the appellant is the inadequacy of the amount i.e. N500,000; but it is the considered opinion of this court, that demolishing of property, was not adequately established to the satisfaction of the trial court, nor indeed this court; and that is what led to the award of nominal damages to the appellant by the trial court which had the opportunity of properly evaluating the evidence before it, rightly so. Simply put the lower court was not convinced that the conduct of the 1st and 2nd respondents did not merit the award of aggravated damages of the magnitude prayed for, and this court share that view; “It is trite law that in order to justify an award of exemplary or aggravated damages, it is not sufficient to show simply that the defendant has committed the wrongful act complained of. His conduct must be high handed, outrageous, insolent, vindictive, oppressive or malicious and showing contempt of the plaintiff’s rights, or disregarding every principle which actuates the conduct of civilised men.” Odiba v. Azege (1998) 9 NWLR (Pt.566) 370.
This issue is accordingly resolved in favour of the respondent and against the appellant.
On issue three:
Whether the judgment of the trial court in respect of that part complained about is against the weight of evidence.
The first part of this issue, and to an extent the second complained of were resolved earlier by this court in favour of the appellant, effectively, i.e. regardless of the conduct of the 1st and 2nd respondents in the circumstances, the appellant has better title, by reason of the fact and law, that the 3rd respondent has no capacity to have title over the disputed property; the question therefore of whether the said plot was first allocated to the 3rd respondent first has become mute, and therefore needless at this point to reiterate; plot 107 on the other hand as pointed out earlier is one and the same with 929 or 107A.
As regards the conduct of the 1st and 2nd respondents in the entire circumstances of the case, the conclusion arrived at is that there is no basis for the award of N100,000,000 in exemplary, aggravated and general damages; this is so because even though the 1st and 2nd respondents did appear to disregard due process to say the least. There is nothing wrong with the award of N500,000 in damages by the trial court, as it properly evaluated and appreciated the extent of loss suffered. The amount awarded is not too low and the principle relied on is valid; “On the quantum of damages awarded, this court will not generally alter an award of damages unless it is established that the judge proceeded of a wrong principle of law or that his award was clearly an erroneous estimate in that the award was manifestly too large or too simple.” Hassan v Tade & Anr (2011) LPELR 4235 CA.
This court is satisfied that the trial court properly evaluated the evidence before it, and arrived at the right conclusion; there was no miscarriage of justice occasioned by its decision; this issue is accordingly resolved in favour of the appellant and against the respondents.
Having resolved issue number two of the three issues for determination in this cross appeal against the appellant, the result is that the cross appeal partially succeeds, but that has not affected the position of the judgment of the trial court, which is also hereby affirmed; with no order as to cost.
MOORE A. A. ADUMEIN, J.C.A.: l had a preview of the judgment just delivered by my learned brother, Mohammed Mustapha, JCA. My learned brother has in an elaborate manner resolved all the issues that call for determination in this appeal and cross appeal. I agree with the reasoning and conclusions of my learned brother dismissing the appeal and affirming the decision of the trial court.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, Mohammed Mustapha, JCA
I am in full agreement with the reasoning and conclusion reached in dismissing the main appeal.
With regard to the cross-appeal, I also agree with his lordship in his analysis, reasoning and conclusion in allowing the appeal partially and also affirming the judgment of the lower court.
I also abide by the consequential orders including order as to costs.
Appearances
Idumodin Ogumu Esq.,
Festus Osayi Esq.,
Ifeyinwa Ekwuene Esq.For Appellant
AND
Dr. Olumide Ayeni Esq.,
Ikhide Ihighelua Esq.,
Ezenwaibegbunam Esq.,
Ayodeji Olanipekun EsqFor Respondent
