HON. MINISTER, FCT v. HASSAN & ORS (2020)

HON. MINISTER, FCT v. HASSAN & ORS

(2020)LCN/14848(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/A/88/2016

RATIO

PRELIMINARY OBJECTION: IMPORT OF A PRELIMINARY OBJECTION

The import of a Preliminary Objection is well known. The Objection is not to pry into and deliberate on the substance of the grounds of appeal before the Court. It is aimed at the defect of competence leading to the termination of the hearing of an appeal.

the issue of compilation of record is regulated by Order 8 of the Court of Appeal Rules. What majorly voids a record of appeal is if it is not compiled within time and if it was not transmitted with the requisite safeguard of certification of documents by the Registry of the Court. If it is that some documents were not transmitted a right is conferred on the respondent to seek for transmission of additional record. PER JONAH ADAH, J.C.A.

LOCUS STANDI: MEANING AND NATURE OF LOCUS STANDI

Locus standi in our law has been described to denote the legal capacity to institute legal proceedings in a Court of law. Its object is simple. If the plaintiff has no standing to sue, it would not be necessary to consider whether there is a genuine case on merits. See Owodunni v. Registered Trustees of CCC (2000) LPELR – 2852 (SC); Ajayi v. Adebiyi & Ors. (2012) LPELR – 7811 (SC), Carew v. Oguntokun & Ors. (2011) LPELR – 9355 (SC) and Uwazuruonye v. The Governor of Imo State & Ors. (2012) LPELR – 20604 (SC).
In the case of Ajayi v. Adebiyi & Ors. (2012) LPELR – 7811 (SC), Adekeye, JSC, held that:
Locus standi is the legal right of a party to an action to be heard in litigation before a Court of law or Tribunal. The term entails the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.
Furthermore, in an elaborate manner, Niki Tobi, JSC, in the case of Pam & Anor. v. Mohammed & Anor, held that:
“The terms locus standi denotes legal capacity to institute proceedings in a Court of law. It is used interchangeable with the terms like standing or title to sue. It is the right of a party to appear and be heard on a question before any Court or Tribunal. See generally Senator Adesanya v. President of the Federal Republic of Nigeria (1981) 5 SC (Reprint) 69; (1981) 2 NCLR 358, Chief Dr. Thomas v. The Most Rev. Olufosoye (1986) 1 NWLR (Pt. 18) 669, Fawehinmi v. Col. Akilu (1987) 4 NWLR (Pt. 67) 797. It is the law that to have locus standi to sue, the plaintiff must show sufficient interest in the suit or matter. Once criterion of sufficient interest is whether the party could have been joined as a party in the suit. Another criterion is whether the party seeking the redress or remedy will suffer some injury or hardship arising from the litigation. If the Judge is satisfied that he will so suffer, then he must be heard as he is entitled to be heard. See Chief Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806, Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557, Albian Construction Co., Ltd. v. Rao Investment and Property Ltd (1992) 1 NWLR (Pt. 219) 583, United Bank for Africa Ltd. v. Obianwu (1999) 12 NWLR (Pt. 629) 78. A party who is in imminent danger of any conduct of the adverse party has the locus standi to commence an action. See Olawoyin v. Attorney General of Northern Region (1961) 1 All NLR 269; Gamioba v. Esezi 5 (1961) 1 All NLR 584, Olagunju v. Yahaya (1998) 3 NWLR (Pt. 542) 501.” PER JONAH ADAH, J.C.A.
EVIDENCE: PRIMARY DUTY OF A TRIAL JUDGE

The law is settled that a trial judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case, and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law: see Bornu Holdings Ltd v. Bogoco(1971) 1 All NLR 324 at 330; Adeniji v. Adeniji (1972) 4 SC 10 at 17; Shodeinde v. The Registered Trustees of the Ahamadiyya Movement-in-Islam (1980) 2 SCNLR 284 at 320. When he fails in this regard, it is an invitation to the appellate Court to intervene and if the appellate Court can make its own findings from the evidence available, it will interfere with the findings of the trial judge since it is in as good a position as the trial court on that score: Fatoyinbo v. Williams (alias) Sanni (1956) SCNLR (Pt. 274 at 275; Lawal v. Dawodu (1972) 1 All NLR (Pt. 2) 270 at 286; Okpaloka v. Umeh (1976) NSCC (Vol. 10) 519 at 533. See also Atuyeye & Ors. v. Ashamu (1987) LPELR 638 (SC).
Once the trial judge effectively and efficiently carried out his duty of evaluation, the appellate Court would not interfere to foist its own evaluation on the one of the trial Court. PER JONAH ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

HON. MINISTER, FEDERAL CAPITAL TERRITORY APPELANT(S)

And

MOHAMMED HASSAN (Doing Business In The Name And Style Of Hassan & Associate, Suing By His Attorney Victoria Suite Ltd.) 2. FELIX MODEBE (Doing Business In The Name And Style Of Century 21 Real Estate Group) 3. FUMAH FACILITIES SERVICES LTD RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja, delivered on the 7th day of May, 2015, by A.S. Umar, J., (as he then was).

The 1st Respondent herein who was the Claimant at the trial Court commenced this action vide a Writ of Summons and Amended Statement of claim, claiming against the Defendants jointly and severally the following reliefs:
a. A declaration that the plaintiff is the person entitled to a Statutory Right of Occupancy over all that piece or parcel of land originally known as Plot 50 and covered by Certificate of Occupancy No. C/FCT 000727-FCT/ABU/MISC 18202 measuring 4.22 hectares and registered as No: FC 10 at page 10 in Volume 102 (Certificate of Occupancy) in the Land Administration Registry Office at Abuja which was later renamed Plot 50 Jibi (F12) District, Abuja and now called Plot 532 Cadastral Zone F 12, Jibi Abuja and measuring 4.58 hectares.
b. An Order mandating the Plaintiff’s to recertify documents of title which were submitted to AGIS for recertification since 28/06/2005.
c. A Declaration that the

purported revocation of the plaintiff’s Certificate of Occupancy by the 1st Defendant and re-allocation of the same land or part of it to the 2nd Defendant or some other person from whim the 2nd Defendant derived his title is against the policy and intention of the Land Use Act and therefore invalid, null and void.
d. An Order setting aside the Notice of Revocation of the Right of Occupancy dated 11/10/2010 which purported to have retrospectively revoked the Plaintiff’s Right of Occupancy with effect from 17th August, 2008.
e. N50 Million Naira damages for trespass.
f. Injunction restraining the defendants by themselves, privies, servants, agents, assigns or any person claiming under or through them or agents of such people from further trespassing by way of re-allocation, alienation, entering, parcellating, digging boreholes, planting new beacons or erecting any structure whatsoever or howsoever on the land.
g. IN THE ALTERNATIVE and in the event, the 1st Defendant proving that the purported revocation of the said 1435.79 square meters as contained in the Legal Search report dated 07/08/2009 was for overriding public interest, an order

mandating the 1st Defendant to re-issue a Certificate of Occupancy to the Plaintiff in respect of the remaining hectares of land not affected by the said public interest and to allocate to the Plaintiff an alternative plot of land measuring 1435.79 square meters to make up for the affected portion.

While the 2nd and 3rd Defendants now 2nd and 3rd Respondents counter-claimed as follows:
a. A declaration that the Defendant is the owner in possession of Plot 532 Cadastral Zone F12 Jibi Abuja by virtue of an Offer of Statutory Right of Occupancy granted by the 1st Defendant dated 07/04/2011.
b. A declaration of this Honourable Court that the 2nd and 3rd Defendants/Counterclaimants are entitled to the undisturbed possession of Plot 532 Cadastral Zone F12 Jibi Abuja being the possessor of Statutory Right of Occupancy over the plot.
c. A declaration of this Honourable Court that the Plaintiff/Defendant has by its acts trespassed onto the said Plot 532 Cadastral Zone F12, Jibi Abuja.
d. An Order of perpetual injunction of this Honourable Court retraining the plaintiff/defendant by themselves, privies, servants, agents, assigns or any

person claiming through her or any of her agents or privies from further trespassing or causing to trespass onto plot 532 Cadastral Zone F12, Jibi Abuja.
e. N100 Million general damages for trespass.
f. Special damages as shall be proved by 2nd and 3rd Defendants/counterclaimant.
g. Cost of this suit assessed at N5 Million.

Pleadings were filed and exchanged by the parties before the lower Court. The lower Court at the end of the trial, entered judgment in favour of the Plaintiff who is the 1st Respondent in this appeal by granting the alternative relief of the 1st Respondent and dismissing the claims of the 2nd and 3rd Respondent.

Dissatisfied with the decision, the appellant appealed to this Court vide the notice of appeal filed on 16th day of July, 2015, containing five grounds of appeal.

In line with the rules of this Court, Betty Umegbulem, Esq. counsel for the Appellant submitted three issues for determination of this appeal in the Appellant’s Brief of Argument filed on the 1st June, 2017 and deemed properly filed and served on the 8th day of September, 2020. The issues are:
1. Whether the learned trial Judge was

right when he proceeded to adjudicate on the suit in view of the fact that the 1st Respondent (Plaintiff) lacked locus standi to maintain suit.
2. Whether the learned trial Judge was right when after holding the revocation of the right of occupancy over Plot 50 within Jibi (F12) District as valid and legal, went ahead to hold that remnant of the same plot together with an alternative plot be reallocated to the plaintiff.
3. Whether the learned trial Judge was right when he held that the 1st Respondent has proved his case by discharging the burden of proof on him and therefore, entitled to the judgment.

In response, Chief Mike Okoye, Esq. counsel for the 1st Respondent adopted the three (3) issues as formulated by the appellant’s counsel for the determination of this appeal in the respondent’s brief filed on the 29th day of November, 2018 but deemed properly filed and served on 8th September, 2020.

The 2nd and 3rd Respondents did not file any brief for determination of this appeal.

Appellant’s Reply Brief to the 1st Respondent was filed on the 28th May, 2019 but deemed properly filed and served on 8th September, 2020.

On the 8th day of September, 2020, when this appeal came up for hearing, Chief Mike Okoye, Esq. counsel for the 1st Respondent moved his Preliminary Objection as contained in pages 3 – 7 of the 1st Respondent’s Brief and urged the Court to strike out this appeal for being incompetent.

I shall first consider the preliminary objection of the 1st Respondent before considering the appeal on its merit, if need be.

PRELIMINARY OBJECTION:
The Preliminary Objection is that the 5 grounds of appeal are incompetent and accordingly ought to be struck out by this Court for want of competence.

The grounds of this Objection are contained in the Motion Paper. The attack of the 1st Respondent/Objector is that none of the grounds of appeal challenged any of the ratio decidendi of the judgment of the trial Court. That it will then be an academic exercise for the Court to consider issues formulated on those grounds. That the grounds are of a general nature and did not contain any specific findings made by the trial Court. He relied on the case of Adeyemi v. Olakunri (1999) 14 NWLR (Pt. 638) and Momoh International Ltd v. Romain & Sons Ltd. (1993) 8 NWLR

(Pt. 314) 746, 754 D – E. That the five grounds of appeal are incompetent and that the Court has no business dabbling into it. That this Court should strike out this appeal.

The 1st Respondent also complained of the record before the Court where he said the compilation mixed up some pages of the judgment compiled for this appeal.

The appellant in his reply brief canvassed that omission in the record compiled by Court registry cannot be the fault of the appellant. He reproduced the grounds of appeal as in pages 591 to 594 of the Record of Appeal and contended that the submissions of the 1st Respondent on the issue was unfounded. The learned counsel for the appellant queried the so called ratio decidendi plotted by the 1st Respondent and submitted that they were imaginary and not the substance of the decision of the lower Court. He urged the Court to discountenance the Objection.

The purpose is to truncate the hearing of the merit or substance of an appeal. It is usually meant to render further proceedings of a Court unnecessary. So it is necessary to state that a Preliminary Objection must be pungent and direct at the competence or otherwise of the appeal filed by the appellant and ipso facto the jurisdictional competence of the Court. The goal is solely to terminate the hearing of an appeal in limine.
In the instant appeal, the objection is directed majorly as to whether there was substance in the grounds of appeal and partially that the record of appeal has omitted some pages of the judgment. These two grounds are to my mind not sufficient to stall the hearing of an appeal. The substance of a ground of an appeal goes to the merit of appeal. To access whether an appeal captures the ratio decidendi of the trial Court, one must access the appeal on merit. Furthermore, the issue of compilation of record is regulated by Order 8 of the Court of Appeal Rules. What majorly voids a record of appeal is if it is not compiled within time and if it was not transmitted with the requisite safeguard of certification of documents by the Registry

of the Court. If it is that some documents were not transmitted a right is conferred on the respondent to seek for transmission of additional record. This has nothing to do with a Preliminary Objection.
I have carefully gone through the Preliminary Objection as laid by the 1st Respondent/Objector in this appeal and I cannot with due respect, see any merit on this Objection. The Objection is therefore overruled and dismissed.

Having disposed-off the preliminary objection, this appeal will now be determined on the issues as formulated by the appellant, same issues having been adopted by the 1st Respondent. I now start with issue one:
Issue One:
This issue is – Whether the learned trial Judge was right when he proceeded to adjudicate on the suit in view of the fact that the 1st Respondent (Plaintiff) lacked locus standi to maintain suit.

Counsel for the Appellant while canvassing this issue submitted that the trial Court erred in law to have adjudicated on the matter and entered judgment when at the time the judgment was delivered the plaintiff (1st Respondent) lacked the locus standi to maintain the action. That the 1st Respondent

(plaintiff) main grouse was that he acquired title over the plot in dispute by virtue of an allocation that was granted by the Appellant in favour of the Enterprise of the 1st respondent known as Hassan & Associate. The Appellant contended that the 1st respondent who was plaintiff at the trial Court lacked the locus standi to maintain the action on the grounds that he failed to disclose justifiable rights worth enforcing by the Court and also disclose any cause of action before the Court. The hanger upon which the Appellant based his contention is the fact that Hassan & Associate not being a person (whether natural or juristic) is incapable of acquiring title in any property whether real or personal in Nigeria.

He relied on the cases of Federal Capital Development Authority & Ors v. Unique Future Leaders International Limited (2014) 17 NWLR Pt. 1436 Pg. 213 and also relied on Section 37 of the Companies and Allied Matters Act LFN 2004.

Counsel submitted that locus standi to sue is not restricted to only legal personality (natural or juristic) it extends to the right of a party to appear and be heard in a Court of law. It is only the

person in whom the enforceable right is vested as his personal right has the locus standi to sue. He cited the case of Senator Abraham Adesanya v. President of The Federal Republic of Nigeria & Anor (1981) 5 SC 112 @ 28-129. That the issue of locus standi is a condition precedent and fundamental to the determination of any action before a Court. It is a threshold issue which goes deeply into the root of the action vis-a-vis jurisdiction of the Court itself. He cited the case of National Hospital, Abuja & 12 Ors v. National Commission for Colleges of Education & 3 Ors (2014) 11 NWLR @309 pp 327 E-F. Furthermore, if a plaintiff does not have the legal standing to institute an action, the Court will have no jurisdiction to entertain his claim. He cited the cases of National Hospital, Abuja & Anor v. National Commission for Colleges of education & Ors (supra) @ page 327, paras F-G; Akas v. The Manager and Receiver (2001) 8 NWLR (Pt. 715) 436 pp. 444 paras B-D; Adesokan v. Adegorolu (1997) 3 SCNJ 1 @16. Counsel maintained that the trial judge was in error when he went ahead to direct the reallocation of the remaining portion of the validly

revoked subject plot together with an alternative plot to the 1st Respondent in the face of the Appellant’s objection to the competence of the suit on ground of want of locus standi by the 1st Respondent who was the Plaintiff at the trial Court.

In response, counsel for the 1st Respondent while arguing this issue submitted that the 1st Respondent’s locus standi to maintain this suit had been raised and determined before at the trial of this matter. That the appellant did not appeal against the said ruling of the trial Court which established the locus standi of the 1st Respondent. Counsel referred this Court to page 567 of the record of appeal for the said ruling. That the appellant cannot be heard to question the ruling and these findings in this Court since it has conceded to that part of the decision of the trial Court. He referred the Court to NBCI v. Integrated Gas (Nig.) Ltd (2005) NWLR Pt. 916 page 617 at 639 Paras- D – E.

Counsel submitted that the trial judge was right in its judgment at page 570 of the record where he came to the logical conclusion that this issues of the 1st respondent’s locus standi to maintain the action had been

overtaken by event. Thus, that the locus standi of the 1st respondent was no longer a live issue. That since the appellant have not challenged the findings of the trial Court in its five (5) Grounds of Appeal, it follows that the decision of the trial Judge is correct on this point and cannot be upturned by this Honourable Court. See NBCI v. Integrated Gas (Nig.) (supra).

Counsel urged that issue one be resolved against the appellant.

a Court of law or Tribunal. The term entails the legal capacity of instituting or commencing an action in a competent Court of law or Tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.
Furthermore, in an elaborate manner, Niki Tobi, JSC, in the case of Pam & Anor. v. Mohammed & Anor, held that:
“The terms locus standi denotes legal capacity to institute proceedings in a Court of law. It is used interchangeable with the terms like standing or title to sue. It is the right of a party to appear and be heard on a question before any Court or Tribunal. See generally Senator Adesanya v. President of the Federal Republic of Nigeria (1981) 5 SC (Reprint) 69; (1981) 2 NCLR 358, Chief Dr. Thomas v. The Most Rev. Olufosoye (1986) 1 NWLR (Pt. 18) 669, Fawehinmi v. Col. Akilu (1987) 4 NWLR (Pt. 67) 797. It is the law that to have locus standi to sue, the plaintiff must show sufficient interest in the suit or matter. Once criterion of sufficient interest is whether the party could have been joined as a party in the suit. Another criterion is whether the party seeking the redress or remedy will suffer some injury

or hardship arising from the litigation. If the Judge is satisfied that he will so suffer, then he must be heard as he is entitled to be heard. See Chief Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806, Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557, Albian Construction Co., Ltd. v. Rao Investment and Property Ltd (1992) 1 NWLR (Pt. 219) 583, United Bank for Africa Ltd. v. Obianwu (1999) 12 NWLR (Pt. 629) 78. A party who is in imminent danger of any conduct of the adverse party has the locus standi to commence an action. See Olawoyin v. Attorney General of Northern Region (1961) 1 All NLR 269; Gamioba v. Esezi 5 (1961) 1 All NLR 584, Olagunju v. Yahaya (1998) 3 NWLR (Pt. 542) 501.”
In the instant appeal, the 1st Respondent as plaintiff took out a Writ of Summons of the lower Court against the appellant who was the 1st Defendant and 2nd and 3rd Respondents as the 2nd and 3rd Defendants. The plaintiff in the case had through the 2nd Further Amended Statement of claim filed on 14/05/2012 and compiled at pages 273 to 282 of the Record of Appeal. At paragraphs 5 and 6 thereof, the locus of the 1st Respondent was disclosed. The 1st Respondent in

his statement of claim at the trial Court had established that he had interest in the res and that his interest is at stake in this matter. He is laying claim to the land in dispute. In the face of this, it is difficult to find justification for the contention of the appellant that the 1st Respondent/Plaintiff has no locus standi to sue in this case. The interest disclosed by the 1st Respondent in the Statement of Claim was significantly enough ground for the 1st Respondent to file the suit at the lower Court. It is in this wise that I find that there was locus standi for the filing of this suit. The issue is hereby resolved in favour of the Respondents and against the appellant.

Issue Two:
This issue is – whether the learned trial Judge was right when after holding the revocation of the Right of Occupancy over Plot 50 within Jibi (F12) District as valid and legal, went ahead to hold that remnant of the same plot together with an alternative plot be reallocated to the plaintiff.

Counsel for the appellant while arguing this issue submitted that the learned trial judge erred in law when he held in one breath that the revocation of the plot in

dispute by the appellant on the 11th of October, 2010, was properly done and then turn around to order that the remaining part of the revoked land together with an alternative land be reallocated to the 1st Respondent. He pointed out that the 1st Respondent’s main grouse at the trial Court was that his title over the plot in dispute was illegally, maliciously and invalidly acquired by the Plaintiff (1st Respondent). However, in the Resolution of the issue, the trial Court rightly held that the revocation of the 1st respondent’s title over the plot in dispute was properly, validly and legally done in view of the fact that it was carried out in strict compliance with the procedure laid down in Section 28 of the Land Use Act which the trial Court itself reproduced at page 17 of its judgment (page 576 of the record of appeal) and also page 18 (page 577, paragraph 2 of the record of appeal). The trial Court went on to hold in another breath that the revocation she earlier held valid and legal is overreaching the plaintiff on the grounds that the 1st respondent (plaintiff) was not compensated for the revocation.

Counsel submitted that the appellant (1st

defendant) had led unchallenged evidence at the trial Court that the 1st Respondent was duly compensated with an alternative plot vide Exhibit pp14 which formed the basis for the trial judge to hold the revocation legal and valid. That the revocation was not for a portion of the revoked plot, it is with respect to the whole plot, it does not matter whether the part required for public interest is not the entire plot. What is paramount is that the revocation was properly done as upheld by the trial judge and how the remaining plot is appropriated is not the business of the 1st respondent. He cited the cases of Metilelu v. Olowo-opejo (2006) All FWLR (pt. 337) 418 @ 432 paragraphs B-E: FGN v. Akinde (2013) 7 NWLR (Pt. 1353) 349.

Furthermore, upon the revocation, the revoked plot has become extinguished because it has been established that the whole area comprising the district where the land in dispute is situate has, immediately after the revocation been redesigned, restructured, renamed and renumbered. Yet the trial judge shut his eyes at all the evidence led. He contended that the trial judge did not make any reference to Exhibit PP14A (the alternative

plot allocated to the 1st Respondent) throughout the judgment and as such did not properly evaluate all the evidence to arrive at the decision on the revocation. He cited the cases of Okafor v. B.D.U Jos Branch (2017) 5 NWLR (1559) 385 at 416 paras H- B; N.B.C.I. v. Alfijir Minning Nig. Ltd (1993) 4 NWLR (pt. 287) 346 ratio 7; Adebayo v. Adusei (2004) 4 NWLR (pt. 862) 44 ratio 3
Counsel urged the Court to so hold.

While arguing issues two and three together, counsel for the 1st Respondent submitted that the trial Court made a dispassionate review of the case as pleaded by the parties. That based on its findings as contained at pages 586, 588 and 587 of the record, that the trial judge arrived at the conclusion that the appellant failed to satisfy the requirement of law in the areas of compensation. That the appellant did not appeal against the above findings by the trial Court and that same did not form any part of the argument in the appellant’s brief. That the appellant having not appeal against the said decision cannot be heard to question that finding in this Court since it has conceded to that part of the decision of the trial Court.

He referred to NBCI v. Integrated Gas Ltd. (supra), A.S.E.S.A v. Ekwenem (2009) 13 NWLR Pt. 1158 SC and Kusfa v. UBC Ltd (1994) 4 NWLR (Pt. 336) 1.

On the award of damages, counsel maintained that the trial Court was right when it held that the plaintiff naturally is entitled to damages and awarded two million naira in favour of the 1st Respondent. That the award made by the trial Court was not appealed against by the appellant and did not form part of the argument in the appellant’s brief. That also the appellant cannot be heard to question that finding in this Court since it has conceded to that part of the decision of the trial Court. He relied on the case of NBCI v. Integrated Gas (Nig.) Ltd. (supra).

On the counter-claim of the 2nd and 3rd Respondents, counsel reproduced the findings of the trial Court as contained at page 590 of the record, as follows:
“On the issue of 2nd – 3rd defendant counter claim, the question is whether the counter claimant has proved his claim to enable the Court grant same.
After extensively determining the claims of the plaintiff which succeed, therefore, based on the evidence and pleadings advanced

during the substantive suit, I do not see any evidence in support of the counter claim. For avoidance of doubt therefore, it is my considered view to refuse the counter claim. The claims are hereby refused and dismissed.”

Counsel further submitted that the appellant did not appeal against the above findings made by the trial judge and therefore, did not form any part of the argument in the appellant’s brief. That since the appellant has not challenged the finding of the trial Court in its five (5) grounds of appeal, it follows that the decision of the trial Court is correct on this point and cannot be upturned by this Court. He relied on the case of NBCI v. Integrated Gas (Nig.) Ltd. (supra). That the judgment of the trial judge shows a dispassionate consideration and evaluation of the pleading and testimonies of the parties. He cited the case of Ezeoke & Ors. v. Nwagbo (1988) 1 NWLR (Pt. 72) 616. That the appellant has not shown any circumstances to justify the interference of this Court with the findings of fact and evaluation of witnesses carried out by the trial Court. He maintained that it is the primary duty of the trial Court to take oral

evidence of the parties, carry out an evaluation of same. That where a trial Court has as in this case properly discharged its duty and made definite findings as rightly done in the case, the appellate Court will not interfere to the opinion of the trial Court. He cited the cases of Fashanu v. Adekoya (1974) 6 SC 83, Mohammed v. Mohammed (2008) 6 NWLR (Pt. 1082) 71 at 76 ratio 3 and Agbaje v. Fashola (2008) 6 NWLR (Pt. 1082) 90 at 108 ratio 11.

He urged the Court to resolve issues two and three against the appellant and in favour of the 1st Respondent and dismiss the appeal.

The trial Court in its judgment held clearly in this case as follows:
Without over flogging the issue, it is safe to say the revocation letter Exhibit PP7 complied with all the requirements and most importantly stated the reason for the revocation. See Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562. Therefore, I answer this question in the positive, that is to say that the revocation of the right of occupancy over plot 50 within Jibi (F12) District due to overriding public interest is valid and legal (Page 577 of the Record).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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……
The 1st defendant did not satisfy the requirement of law in the areas of compensation or re-allocation of alternative plot to the plaintiff. In my view, it will be fair and just to re-allocate or return back the remaining plot of land to the original alottee i.e the Plaintiff and not the 2nd and 3rd defendants. I so hold. (See page 587 of the Record).

By this decision of the trial Court, the learned trial judge identified and held that the revocation of the right of occupancy over plot 50 within Jibi (F 12) District was valid and legal. The learned trial judge thereafter, considered why compensation was not paid for the revocation. He consequently gave the appropriate quantum and nature of compensation which the 1st Respondent (Plaintiff) was entitled to. The learned trial judge’s decision in that respect cannot be faulted. This issue two is therefore resolved in favour of the 1st Respondent and against the appellant.

Issue Three:
This issue is – whether the learned trial judge was right when he held that the 1st Respondent (Plaintiff) has proved his case by discharging the burden of proof on him and therefore entitled to the judgment.

Counsel for the appellant while arguing this issue submitted that the trial judge erred in law when he held that the 1st respondent has proved his case to entitle him to the reliefs sought despite the inconsistency in the evidence and the fact that the evidence of DW1 which the trial judge had earlier expunged on grounds of contradiction were subsequently used by the trial judge as basis to hold that the revoked land is the same as plot 532. He pointed out that, premised on the elementary law that where evidence be it (documentary or oral) are at variance with each other and such evidence must be expunged. He relied on the case of Panache Communications Ltd v. Aikhomu (1994) 2 NWLR (pt. 327) 420 ratio 5 at p.428 para D-E.

He maintained that the trial judge was wrong in law when he relied on the submissions of counsel to form the basis for his decision as if same were evidence. The above submission is predicated on the trite principle of law that address of counsel, no

matter how powerfully and beautifully put cannot take the place of evidence. He relied on the case of Nig. Arab Bank Ltd v. Femi Kane Ltd (1995) 4 NWLR (pt.387) 100 @ 106 ratio 10. The appellant as 1st Defendant at the trial Court raised the issue of identity of the land in dispute which called for the 1st respondent to file a composite survey plan to establish the identity of the land which he never did. The 1st Respondent relied on satellite imagery to hold that the identity of the plot has been established.

Counsel finally submitted that the trial Court was in error when he held that the satellite imagery, Exhibit PP14B qualifies as a survey plan and as such the 1st respondent had proved his case to entitle him to his reliefs. He cited the cases of Aiyeola v. Pedro (2014) 13 NWLR (Pt.1424) 409 and Emiri v. Imieyeh (1999) 4 NWLR (Pt. 599) 442. He urged the Court to hold that Exhibit PP14B does not qualify as a Survey Plan.

The learned trial judge in this case carefully and dutifully analysed all the facts and did a thorough evaluation of the evidence adduced in the instant case. There is no aspect that is deficient as to project any iota of

injustice. The evaluation done by the trial Court was very correct. The law is settled that a trial judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case, and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law: see Bornu Holdings Ltd v. Bogoco(1971) 1 All NLR 324 at 330; Adeniji v. Adeniji (1972) 4 SC 10 at 17; Shodeinde v. The Registered Trustees of the Ahamadiyya Movement-in-Islam (1980) 2 SCNLR 284 at 320. When he fails in this regard, it is an invitation to the appellate Court to intervene and if the appellate Court can make its own findings

from the evidence available, it will interfere with the findings of the trial judge since it is in as good a position as the trial court on that score: Fatoyinbo v. Williams (alias) Sanni (1956) SCNLR (Pt. 274 at 275; Lawal v. Dawodu (1972) 1 All NLR (Pt. 2) 270 at 286; Okpaloka v. Umeh (1976) NSCC (Vol. 10) 519 at 533. See also Atuyeye & Ors. v. Ashamu (1987) LPELR 638 (SC).
Once the trial judge effectively and efficiently carried out his duty of evaluation, the appellate Court would not interfere to foist its own evaluation on the one of the trial Court.
From the evaluation carried out by the trial Court, this Court cannot but accept it as the viable assessment of evidence in the case. It is in the interest of justice and fair play to affirm the evaluation of evidence by the trial Court in this case. This issue is therefore, resolved in favour of the 1st Respondent and against the appellant.

From the foregoing therefore, it is my firm and undiluted view that this appeal is lacking in merit. The appeal is hereby dismissed.
Parties to bear their respective costs

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of

reading in advance the judgment just delivered by my learned brother, STEPHEN JONAH ADAH, JCA, and I am in complete agreement with the reasoning and resolution arrived. The issues distilled were adequately resolved that nothing is left for me to add. I too dismiss the appeal for lacking in merit and abide by the other orders made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH. I agree with the reasoning, conclusion and orders therein.

Appearances:

Ibrahim S. Arisekola, Esq. For Appellant(s)

Chief Mike Okoye, Esq. with him, Ifeanyi Ndidikwe Esq. – for 1st Respondent.

2nd and 3rd Respondents served but not represented in Court. For Respondent(s)