IKECHUKWU v. OKOZAG SERVICES LTD (2022)

IKECHUKWU v. OKOZAG SERVICES LTD

(2022)LCN/16892(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, August 19, 2022

CA/A/226/2016

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

ODO ANTHONY IKECHUKWU APPELANT(S)

And

OKOZAG SERVICES LTD RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES

THE JURISDICTION OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA

It is a well settled fact that the Federal Capital Territory, Abuja is specially provided for in Section 297 of the Constitution of the Federal Republic of Nigeria 1999. By Section 297(2) of the Constitution, the ownership of all lands comprised in the Federal Capital Territory, Abuja shall vest in the Government of the Federal Republic of Nigeria. By the special status of Abuja., there is nothing like Urban and Rural Land as we have under the Land Use Act in the States of the Federation.
Section 255(1) of the Constitution created the trial Court specially for the FCT. The jurisdiction of the Court is at Section 257, which provides as follows:
257. – (1) Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja to be dealt with by the Court of the exercise of its appellate or supervisory jurisdiction. PER ADAH, J.C.A.

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on 23rd October, 2014, in Suit No. FCT/HC/CV/21/2009.

The Respondent as Plaintiff instituted this action at the trial Court and claimed against the Appellant as Defendant all the sundry reliefs as per the Statement of Claim, thus:-
1. A declaration that the plot of Land situate at No. GD at Dabi Layout 1 with PBS 9094, 9095, 9096, 9097 belongs to the plaintiff.
2. A declaration that the plaintiff’s title to his plot of land has not been revoked.
3. A perpetual injunction restraining the defendant, his agent, servant and/or privies from further act of trespass and laying whatever claim to the said plot of land.
4. An order permanently restraining the defendants from further interfering with the plaintiff’s ownership of his plot of land.
5. The sum of N2 million being general damages for trespass into the plaintiff’s plot of Land situate at GD at Dabi Layout 1, Gwagwalada Area Council.
6. An order awarding substantial cost of this litigation.

The defendant now Appellant denied the claim of the Appellant vide a statement of defence.

In proof of his case, the plaintiff now Respondent testified as a sole witness and tendered several documents which were admitted in evidence as Exhibits A1 to A4.

Also in proof of their case the Defendant now Appellant testified on his behalf and called one Subpoenaed witness who testified as DW2 and tendered several other documents which were admitted in evidence as Exhibits D1 to D3.

After the parties had joined issues, the lower Court on the 23rd October, 2014 entered judgment in favour of the Respondent, granting all the reliefs sought in the Statement of Claim.

Aggrieved by this decision, the Appellant filed this instant appeal vide the notice of appeal filed on the 19th December, 2014. There are four grounds of appeal listed in the notice of appeal. The Record of appeal was transmitted to this Court on the 25th April, 2016 but deemed on the 2nd October, 2018.

In line with the rules and practice of this Court, the Appellant filed his Brief of Argument on the 2nd October, 2018. The Respondent did not file any brief in defence of this appeal.

Under the Rules of this Court, particularly Order 19 Rule 4, it is provided thus:
4.-(1) The respondent shall also, within thirty (30) days of the service of the brief of the appellant on him, file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall, mutatis mutandis, also conform to Rule 3(1),(2),(3),(4),(5) and (6) of this Order.
This right given to the Respondent under the Rules is elective. The Respondent as in the instant case has the liberty to file or not to file a Respondent’s brief. Where however, the Respondent fails to file his Respondent’s brief, the Court enjoined under Order 19 Rule 10(3) in the following terms:
(3) Where a respondent, who has been duly served with the appellant’s brief, fails to file his brief within the time stipulated in this Order, or within the time as extended by the Court, the Court shall, upon being satisfied that the respondent was duly served with a hearing notice, hear the appeal without the necessity of an application by the appellant to hear the appeal on the appellant’s brief alone.

It is pertinent to note that the plaintiff in a claim of title to land can only ordinarily succeed on the strength of his case and may not rely on the weakness of the case of the opposing party to obtain judgment.

The grant of a declaratory relief has always been dependent on the discretionary power of the Courts.

The burden is always on the plaintiff to prove his case on the preponderance of evidence or balance of probabilities. By the provision of Section 135(1) and (2) of the Evidence Act on burden of proof, it is stated: (1) “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of facts, it is said that the burden of proof lies on that person”. In his statement of claim, the Respondent as plaintiff sought for a declaration of legal right to tile to the land in dispute. In law, the general burden of proof lies on the Respondent because he is the one asserting that the land in dispute belongs to him. From the provision of Section 135 of Evidence Act, therefore, in a claim for declaration of title, the general rule is that the plaintiff must depend or succeed on the strength of his own case and not upon the weakness of the defence. See the cases of Olohunde & Anor. v. Adeyoju (2000) LPELR – 2586 (SC), Abey & Ors. v. Alex & Ors. (1999) LPELR-32 (SC), Itauma v. Akpe-lme (2000) LPELR-1557 (SC), Oguanuhu Ors., v. Chiegboka (2013) LPELR-19980 (SC).

Under the Rules of this Court, when a Respondent is foreclosed and he has no brief for the hearing of the appeal, he loses the opportunity to answer all material points of substance contained in the appellant’s brief.

In the instant case, the learned counsel for the Appellant submitted four issues for the determination of this appeal. The four (4) issues are:
1. Whether or not the respondent has proved the ownership of the land in dispute to be entitled to the claim.
2. Whether there is a need for the Gwagwalada/Kwali Area Council to revoke formally the Respondent’s purported plot or not.
3. Whether there is a provision for a local land in FCT and if not, whether the trial Court has the jurisdiction to entertain the matter.
4. Whether the principle of he who is first in time is stronger in law applies to the documents of titles in this case.

Since the Respondent did not file any brief to this appeal, the four issues as formulated by the Appellant will be adopted in determination of this appeal. I now start with issues one and two.

Issues One and Two:
These issues are – Whether or not the respondent has proved the ownership of the land in dispute to be entitled to the claim; and
Whether there is a need for the Gwagwalada/Kwali Area Council to revoke formally the Respondent’s purported plot or not.
In arguing this issue, the learned counsel for the Appellant submitted that in a claim of title to a piece of land the onus is always on the plaintiff to prove the ownership of the said plot, and in proving the ownership of a plot there are five ways enumerated. Counsel relied on the cases of Adetutu Adesanya v. Alh S. D. Adewnmu & Anor (2000) 6 SCNJ 242; Prince Ngene v. Chike Igbo & Anor (2000) 2 SCNJ 136; Sunmonu Olohunde v. Prof. S.K. Adeyoju (2000) 6 SCNJ 470; Mbani v. Obosi (2006) 35 WRN 185; Iragunima v. R. S. H. P. D. A. (2003) 39 WRN 1; Alli v. Alesinloye (2000) 4 SCNJ 264; Thompson v. Arowolo (2003) 24 WRN 1; Ojoh v. Kamalu & Ors (2005) 12 SCNJ 236.

Learned counsel for the Appellant argued that for the Plaintiff/Respondent to prove the ownership of the land in dispute he must clearly state the extent, nature, and features of the land. Counsel cited the cases of Adetutu Adesanya v. Alh. S. D. Aderonmu & Ors (2000) 6 SCNJ 242; Dada v. Dosunmu (2006) 9 SCNJ 31; Aigbobahi & Ors v. Aifuwa & Ors (2006) 2 SCNJ 61; Iordye v. Ihyambe (2000) 12 SCNJ 117; Ibhafidon v. Igbinosun (2001) 4 SCNJ 166; Owhonda v. Alphonso C. Ekpechi (2003) 49 WRN 21; Babalola v. Alawomoko (2001) 30 WRN 56; Ate Kwadzo v. Robert Adjei (1944) 10 WACA 274; Udekwu Amata v. Modekwe (1954) 14 WACA 580; Ansa & Ors., v. Ishie (2005) 6 SCNJ 11 AT 120; Auta v. Olaniyi (2003) 38 WRN 144.

Furthermore, counsel for the Appellant argued that the Respondent’s purported plot is not the type known to law that requires formal revocation. And nobody testified that the Respondent’s purported plot was revoked. Rather it is submitted that there is no need to revoke a plot not validly given by the authority vested with the power to allocate plots to individuals. Counsel relied on the case of Oto v. Adojo (2003) 19 WRN 78.

From the record before us, the Appellant came to the land in dispute in March, 2000 while the Respondent came to the land in 1993. The Respondent showed by his Exhibits A1, A2, A3, A4 that he was given the land by the Gwagwalada Area Council in 1993. The site plan is Exhibit A2 and was recertified by AGIS as shown in Exhibit A4.

The Appellant’s claim is that he was given the land by Kwali Area Council which was shown by Exhibit D2. There is evidence that the land was originally in Gwagwalada Area Council before the creation of Kwali Area Council in 1996. The Respondent showed that after the creation of Kwali Area Council he forwarded the particulars of his land to them. He said the land was not revoked by Gwagwalada or Kwali Area Councils. This fact was not denied or countered by the Appellant. What this means is that the grant of the Respondent was first in term. The law has not changed from the fact that another Local Government Area or as it is in the Federal Capital Territory, an Area Council is created out of an established council area does not wipe or obliterate the interest of the ordinary citizens of the council or area. The only dimension that must play out straight away is the fact that territorial control will change so that all rates and other conditions must be ceded to the newly created authority. Furthermore, since there was a new creation of the Area Council over the plot, the newly created authority do have the right in appropriate circumstances to revoke the grant of the Respondent was extant when the Appellant was purportedly allocated with the same plot of land. The evidence placed before the trial Court has on the balance of probabilities established the fact that the land belongs to the Respondent. Issues one and two are therefore, resolved in favour of the Respondent.

Issues Three and Four:
These issues are – Whether there is a provision for a local land in FCT and if no, whether the trial Court has the jurisdiction to entertain the matter; and
Whether the principle of he who is first in time is stronger in law applies to the documents of titles in this case.
Learned counsel for the Appellant on these issues submitted that this issue should be answered in a negative, as there is no land in any part of FCT that is regarded as a local one. Counsel relied on Section 297 (2) of the 1999 Constitution (as amended); Section 18 of the Federal Capital Territory Act, Cap 503 Laws of the Federation; Part VII Section 39 (1) of the Land Use Act; Auta v. Olaniyi (2003) 38 WRN 144.

He maintained that the documents made by a body known to law are stronger in law than the one made by a non-juristic body. It is our submission that when there is a conflict between the law and equity, the law prevails. Counsel relied on the cases of Kate Mudiaga-Erhuehi & 3 Ors v. Independent National Electoral Commission (INEC) & 6 Ors (2003) 7 WRN 95 AT 25- 45. Counsel urged the Court to allow the appeal and set aside the decision of the trial Court.

It is a well settled fact that the Federal Capital Territory, Abuja is specially provided for in Section 297 of the Constitution of the Federal Republic of Nigeria 1999. By Section 297(2) of the Constitution, the ownership of all lands comprised in the Federal Capital Territory, Abuja shall vest in the Government of the Federal Republic of Nigeria. By the special status of Abuja., there is nothing like Urban and Rural Land as we have under the Land Use Act in the States of the Federation.
Section 255(1) of the Constitution created the trial Court specially for the FCT. The jurisdiction of the Court is at Section 257, which provides as follows:
257. – (1) Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja to be dealt with by the Court of the exercise of its appellate or supervisory jurisdiction.
In the case of Ona v. Atenda (2000) LPELR-6861 (CA), this Court, while considering the status of land in FCT and the jurisdiction of the Court to entertain issues therefrom held as follows:
On the question of who has jurisdiction over the lands within the Federal Capital Territory, is it Area Courts or the High Courts having regards to the existing laws? There is no doubt that all the lands in the Federal Capital Territory were at one time or the other before the coming into force on 4th February, 1976 of the Federal Capital Territory Act fall within States which were subject to the Land Tenure Law, Cap, 59 Laws of Northern Nigeria, 1963. In Section 41 of the Law exclusive jurisdiction is given to the High Court in proceedings: – (a) In which the right of the Governor or the Minister to grant a right of occupancy over any land is in dispute; (b) Proceedings by way of petition of right; and (c) Proceedings by the Attorney-General for recovery of possession under Section 39(1) of the law-while a Native Court of competent jurisdiction is conferred with jurisdiction inter alia in respect of land the subject of a statutory right of occupancy granted by a Native Authority and the High Court and District Court (within the respective limits of a District Court) have jurisdiction principally where statutory grants by native authorities or customary right of occupancy is involved. It has been seen that by virtue of Section 49(1) of the Land Use Decree, there is no question or a customary right of occupancy arising in respect of lands vested in the Federal Government or its agencies as Federal lands are designated developed or undeveloped under the Act and not urban or non-urban. Similarly, the powers of the President or of a Governor under any applicable law are by Section 13(3)(b) of the Federal Capital Territory Act vested in the Minister charged with responsibility for the Federal Capital Territory, it must follow that there is no question of a Native Court, Area Court or District Court in the area of the Federal Capital Territory exercising jurisdiction under Section 41 of the Land Tenure Law of the Former Northern Nigeria. To this extent, I say with respect, that reliance placed by some learned counsel in their briefs submitted to this Court on the authority of some Supreme Court cases on jurisdiction of Area Courts or Customary Courts in respect of land not in urban area such as: – (a) Alhaji Abubakar Sadikwu v. Alhaji Abba Dalori (1996) 5 NWLR (Pt. 447) P. 151; (b) Garuba Abioye & Ors., v. Sa’adu Yakubu and Ors., (1991) 5 NWLR (Pt. 190) P. 130, is misplaced. There is no land of either urban or non-urban nature in the area of the Federal Capital Territory. What is more, since only the Minister for the Federal Capital Territory can grant Statutory Rights of Occupancy by virtue of Section 18 of the FCT Act over any land in the area in question, even under Section 41 of the Land Tenure Law, proceedings under sub-section (1) must be before the High Court which by the combined operation of Section 263 of the 1979 Constitution (applicable at the tie of reference) and Section 230(1 )(q) & … of Decree No. 107 of 1993 (now S. 251 of the Constitution of the Federal Republic of Nigeria, 1999), depending upon the circumstances in the particular case, shall now be either the High Court. Accordingly, my answer to Question No. 4 is that the High Court of the Federal Capital Territory, Abuja or the Federal High Court, depending upon the circumstance, has jurisdiction in respect of lands within the Federal Capital Territory but certainly not the Area Courts.”
From this authority and several others from this Court, the issue of who has the jurisdiction over this cause of action is fully settled. The High Court of the Federal Capital Territory Abuja created under Section 255(1) of the 1999 Constitution (as amended) has the jurisdiction. It goes without controversy therefore, that these two issues are hereby resolved in favour of the Respondent.

From the foregoing therefore, this appeal as brought by the Appellant is lacking in merit. The appeal is hereby dismissed. The judgment of the trial Court in Suit No: FCT/HC/CV/21/2009, delivered on 23rd October, 2014, is accordingly affirmed.

The parties are to bear their respective costs.

HAMMA AKAWU BARKA, J.C.A.: The judgment just delivered by my learned brother Stephen Jonah Adah JCA, was made available to me in draft before now.

Having also perused the record of proceedings as well as the grounds of appeal and the submission of Learned Counsel, I am satisfied that the issues at stake were adequately taken care of in the leading judgment which I adopt as mine.

In consequence therefore, I adjudge the appeal as lacking in merit and thereby dismiss the same. I abide by all consequential orders made, including that made on costs

DANLAMI ZAMA SENCHI, J.C.A.: I had the opportunity in reading in draft the lead judgment of my learned brother, STEPHEN JONAH ADAH JCA just delivered and I agree with the finding and conclusion reached therein that this appeal is lacking in merit and it is dismissed by me as well.

I want to comment however on the statutory provisions on the jurisdiction of the High Court of the Federal Capital Territory, Abuja as regards the subject matter in dispute before the Trial Court, a close look at the provisions of the Constitution, i.e. Sections 3(4) and (5), 297-303 as altered by the 1999 Constitution of the Federal Republic of Nigeria, wherein the provisions of the Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the states of the Federation and judicial powers vested in the Courts established for the Federal Capital Territory, Abuja and such matters referred in the Constitution shall be read with modifications and adaptations as may be necessary to bring them in conformity with the provisions of the Constitution.
Now a composite reading of the above provisions and Section of 147 of the Constitution, it will show that the ownership of all Lands comprised in the Federal Capital Territory Abuja vests in the Government of the Federal Republic of Nigeria, Abuja which shall be the Capital of the Federal Republic of Nigeria. Thus, applying the provisions with such modification and adaptation in the Federal Capital Territory Abuja as if it were one of the states of the Federation as per Section 299 of the 1999 Constitution as amended. This is to say, when the High Court of the Federal Capital Territory Abuja is seized with a cause or matter that involves ownership of Land in the Federal Capital Territory Abuja the Court shall be exercising its jurisdiction as if it were one of the High Court of the states of the Federation, hence the provisions of the Constitution pertaining to the matters, subject of ownership of Land or statutory right of occupancy situate in the Federal Capital Territory Abuja, it is the High Court of the Federal Capital Territory Abuja that has or can exercise original jurisdiction. See DWEYE V IYOMAHAN, (1983) 2 SCNL 135 at 138, TRANSPROJECT NIGERIA LIMITED V HON. MINISTER OF F.C.T. & ANOR, (2014) LPELR 23815(CA).
Then by Section 39(1) of the Land Use Act it states:-
(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings:-
(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act, and for the purposes of this paragraph, proceedings includes proceedings for a declaration or title to a statutory right of occupancy;
(b) Proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Act.”
S.257 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) states to the effect that subject to the provisions of Section 251 and any other provisions of the Constitution, and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory Abuja shall have jurisdiction to hear and determine any civil proceedings in matters specified therein in subsections 1 & 2 of the Constitution. Thus by a combine reading of Section 257 (1) & (2) and Section 39 (1) (a) and (b) of the Land Use Act, by the use of the word “shall”, it is only the High Courts of the states and the High Court of the Federal Capital Territory, Abuja have original jurisdiction in respect of any land the subject of a statutory right of occupancy granted by the Governor or the Minister FCT as the case may be. See OSHO V PHILIPS, (1972) I ALL NLR (pt 1) 276 at 285; ODUTOLA HOLDINGS LTD V LADEJOBI, (2006)12 NWLR (pt 9)994. Thus, the express mention of the “High Court” of the State or Federal Capital Territory Abuja excludes other Courts. See UDOH V ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1993) 7 SCNJ (pt 2)436 at 447 and MILITARY GOVERNOR OF ONDO STATE V ADEWUMI, (1988)3 NWLR (pt 82)280.

Thus, having looked at the jurisdiction of the High Court of the Federal Capital Territory Abuja pertaining to ownership of Land, the subject of statutory Right of Occupancy granted by the Minister, F.C.T Abuja, I am of the view that the decision of High Court of the Federal Capital Territory in suit No. FCT/HC/CV/21/2009 delivered on 23/10/2014 was correct and is hereby affirmed.
No order as to costs.