KAMBA v. NDAGI & ORS (2020)

KAMBA v. NDAGI & ORS

(2020)LCN/14275(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, June 29, 2020

CA/A/423/2012

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ALHAJI KAMBA APPELANT(S)

And

MABEL NDAGI 2. ALH. HUSSAINI Z. AKWANGA 3. ALH. SULEIMAN GISE 4. MINISTER OF THE FEDERAL CAPITAL TERRITORY 5. FEDERAL CAPITAL TERRITORY DEVELOPMENT AUTHORITY 6. DEPARTMENT OF DEVELOPMENT CONTROL 7. ABUJA GEOGRAPHICAL INFORMATION SYSTEM RESPONDENT(S)

RATIO

DUTY OF THE COURT TO DETERMINE WHETHER AN ABUSE OF JUDICIAL PROCESS HAS OCCURED

However, before I determine or answer the question, I want to state here that my duty in the present application is not to determine the interplay of words my duty is to determine whether an abuse of Court process or abuse of judicial process had occurred by filing the present application. An answer can be found in the case of ASHLEY AGWASIM and 1 OR V DAVID OJICHIE and 1 OR (2004) 10 NWLR (pt. 882) page 613 at page 616 where the SCN held:-
“In the determination of whether an abuse of the judicial process has occurred, the Court will consider the content of the first process vis-à-vis, the second one to see whether they are aimed at achieving the same purpose.” PER AGIM, J.C.A.

THE RULE OF INTERPRETING THE LAW

It is trite law that the Court in interpreting or applying the law, in the instant case, the Land Use Act, the FCT Act and the Constitution, the Court must be mindful and to interpret it as a whole and not in isolation. In other words, I have considered the provisions of Sections 5(1) 28 (5) (a) and (b), (6) and (7), 51 (2) and indeed Section 44 of the Land Use Act, Section 1 of the FCT Act and Section 297 and 302 of 1999 Constitution (as amended). PER AGIM, J.C.A.

WHETHER OR NOT FOR A COURTS DISCRETION TO BE JUDICIAL AND JUDICIOUS, IT MUST BE SUPPORTED BY CORRECT AND CONVINCING REASONS

Generally, for a Court’s exercise of discretion to be judicial and judicious, it must be supported by correct, valid and convincing reasons. It is arbitrary or wrongful if it is not supported by an reasons or is supported by wrong or insufficient reasons. See EKWUNIFE vs Wayne (WA) Ltd (supra) and Yussuf vs Ilori (supra), a judicial discretion must be exercised on certain principle, according to rules of reason and justice in the context of the peculiar facts of the case. See UBA vs GMBH (1989) NWLR (pt. 110) 374, Haco Ltd vs Brown (supra), Onabanjo vs Ewetuga (supra) and Gabari vs Llori (supra). The decision resulting from the exercise of discretion must show or reflect a consideration of the said principles and circumstances relied on in reading it. There is no other way of knowing what principle was used, what facts and reasons were relied on, in fixing an amount of cost, if there is nothing in the decision showing the principle applied and the reasons for the decision. The fixing of the amount of costs without showing the principle and reasons relied on, renders the decision perverse, arbitrary and wrongful.”
“An exercise of a Court’s discretion is judicial and judicious if it is reasonable and just in the context of the peculiar facts and circumstances of the case before the Court. It means that the exercise of discretion is not arbitrary or wrongful. See Ekwunife vs Wayne (WA) Ltd (1989) 5 NWLR (pt. 122) 422 at 488 (SC), Oduba vs Houtmangracht and Anor (1997) 6 NWLR (pt. 508) 185 (SC), Haco Ltd vs Brown (1973) 4 (SC) (reprint) 103, R. Lauwers Import-Export vs Jozebson Industries Co., Ltd (1988) 7 SC (pt 111) 26 and Olumegbon and Other vs Kareem and Others (2002) 5 SC (pt 1) 101.”PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/423/2012 was commenced on 23-7-2012 when the appellant herein filed a notice of appeal against the judgment of the High Court of the Federal Capital Territory in Suit No. FCT/1147/2008 delivered on 20-7-2012 by D.Z. Senchi J. The notice of appeal contains 5 grounds for the appeal. With leave of Court, the said notice was amended and further amended. The further amended notice of appeal contains 10 grounds for this appeal.

The parties herein filed, exchanged and adopted their respective briefs as follows – appellant’s brief, 1st respondent’s brief, 4th to 7th respondent’s brief.

The notice of preliminary objection filed and argued by the 1st respondent was withdrawn by him and struck out during the hearing of this appeal.

The appellant’s brief raised the following issues for determination-
1. Whether in view of the unchallenged oral evidence of the DW2 on the reinstatement of the title of the 2nd Respondent by the 4th Respondent, the Suit of the Plaintiff/1st Respondent has not become academic and thus affected the jurisdiction of

the trial Court to continue to entertain same. (Distilled from additional Ground 10)
2. Whether the learned trial Judge was right to have ignored the Appellant’s Motion for stay of proceedings pending the determination of the interlocutory appeal before the Court of Appeal and thus went ahead to deliver judgment. (Distilled from Ground one).
3. Whether the learned trial Judge was right in law when he rejected the Notice of Reinstatement issued by the 4th Respondent in favour of the 2nd Respondent on the ground that it was made during the pendency of the suit and by an interested party. (Distilled from Grounds 2 and 6)
4. Whether the learned trial Judge was right to have awarded the sum of Thirty Million Naira (N30,000,000.00) as general damages for trespass and the sum of One Hundred Thousand Naira as cost against the Appellant. (Distilled from Grounds 3 and 5)
5. Whether the learned trial Judge was right to have invoked the principle of Quid quid plantatur solo solo cedit to hand over the property of the Appellant to the 1st Respondent when the 1st Respondent had not established title or exclusive ownership over the property.

(Distilled from Grounds 4)
6. Whether the learned trial Judge was right in law when he held that there was a valid revocation of the 2nd Respondent’s title when from the evidence before the Court, it was clearly established that there was no valid service of the Notice of revocation. (Distilled from Grounds 7 and 8)
7. Whether the learned trial Judge was right in law when he relied on the weaknesses of the Appellant’s case and that of the 2nd and 3rd Respondents thus making a case for the 1st Respondent. (Distilled from Ground 9).

The 1st respondent in her brief adopted and argued the issues for determination raised in the appellant’s brief. The 4th to 7th respondents in their brief equally adopted and relied on the issues raised for determination in the appellant’s brief.

I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.
Let me determine issues Nos. 1, 3, 6 and 7 together.

I have carefully read and considered the arguments of all parties herein on these issues.

The facts established by the pleadings and evidence of the 1st Respondent as

plaintiff are as follows; Upon the application of the 1st respondent for the grant of statutory right of occupancy of land, the 4th respondent granted the 1st respondent the statutory right of occupancy of Plot No. 172 in Cadastral Zone A06 in Maitama by a letter dated 23-1-2007 (Exhibit 2). She wrote a letter (Exhibit 2(a) accepting the said grant or offer. Upon the grant of Plot 172 Cadastral Zone A06, Maitama Abuja, vide Exhibit 2, she undertook a physical visit to the plot of land and confirmed same was bare and devoid of any sort of development on it. According to the Plaintiff, her solicitors also conducted a search at the Abuja Land Registry of the 6th defendant and also confirmed that the said land was in no way encumbered before making payments as evidenced in Exhibit 3, 3(a), 4 and 4(a) respectively. During the search conducted by the Plaintiff solicitors, it was confirmed that the 1st Defendant, Alhaji Hussaini Z. Akwanga was the previous allocatee of the said plot 172, having been granted the right of occupancy to it on 6-11-1996, but the right was revoked by the 3rd defendant by a Notice of Revocation dated the 8th August, 2005 due to

contravention of the terms of grant by failing to erect or complete development on the plot of land within two (2) years.

The Plaintiff, after obtaining her building plan approval, Exhibit 5, and payment of initial bills and settlement of building plan fees through Exhibits 3(a) and 4(a) respectively, commenced development of the plot of land thereon sometimes or about May 2007, but was interrupted by the 1st Defendant who trespassed into the plot of land and chased away all the workers of the Plaintiff and lodged a complaint of criminal trespass against the Plaintiff at the office of the Assistance Inspector General of Police, Zone 7 Headquarters, Abuja. The office of the Assistant Inspector General of Police wrote the 3rd to 6th Defendants on the complaint of the 1st Defendant and the 3rd to 6th Defendants responded vide Exhibit 6, confirming that the title over the said plot now resides in the Plaintiff. The 1st Defendant, being dissatisfied with the result of the investigation filed civil suit No. FCT/HC/CV/838/07 on the 14th June, 2007 against the Plaintiff, the 3rd and the 4th Defendants. The certified true copies of the writ of summons, 1st and 2nd

Defendants statement of defence, Witnesses statements on oath and other processes were received in evidence as Exhibits 7(a), 7(b), and 7(c) respectively.

In the course of proceedings in Suit number FCT/HC/CV/838/07, Counsel to the 3rd defendant in that suit (1st respondent herein) severally complained to the Court of the unlawful entry and developments being carried out by the 2nd respondent herein on the plot. The plaintiff in suit No. FCT/HC/CV/838/07 (2nd respondent herein), sought injunctive orders against the 1st respondent herein but the application was refused and the case adjourned for hearing. See Exhibit 7(d). Due to the persistent absence of Plaintiff’s Counsel in Suit No. FCT/HC/CV/838/07, on the 27th May 2008, the case was struck out. The Certified True Copy of the Court’s Ruling was received in evidence as Exhibit 7. While proceedings in suit No. FCT/HC/CV/838/07 was on going, unknown to the 1st respondent herein, the appellant, 2nd and 3rd respondents surreptitiously trespassed in Plot 172 and commenced the erection of structures and buildings on it. They have since completed the development and erection of buildings on the

Plot without a building plan approved by the 4th to the 7th respondents herein and without the knowledge or consent of the 1st respondent herein. Three (3) copies of photographs of the buildings erected on the said plot of land by the appellant herein were admitted in evidence as Exhibits 17, 17(a) and 17(b) respectively. The 1st respondent also testified that after revocation of the title of the 2nd respondent over Plot 172 Cadastral Zone A06, Maitama, Abuja, the 2nd respondent with full knowledge of the revocation proceeded and sold the disputed plot of land to the 3rd respondent who in turn sold the plot of land to the appellant. Both 3rd respondent and appellant purchased the plot with knowledge that the 2nd respondent was challenging the revocation of his right of occupancy to the plot.

The pleading and evidence of the 2nd respondent herein as 1st defendant establish that the 1st Defendant’s case is that he was the original owner/allottee of the then vacant Plot of land number 172 Cadastral Zone A06 Maitama, Abuja by virtue of a letter of allocation dated 2nd November, 1996 with reference number MFCT/LA/94/PL1682, that he sold the vacant land

(Plot 172 Cadastral Zone A06 Maitama, Abuja) to the 2nd Defendant, that he denied the fact that he sold the plot of land in dispute after the revocation, that the purported revocation of the land in dispute was illegal, null and void and of no legal effect for being arbitrary, lawlessness, recklessness nepotic and oppressive and a product of the man-know-man negative attitude that characterise the administration of the then Minister of the Federal Capital Territory, Mallam Nasiru El-Rufie. Due to the purported revocation of the plot of land in dispute he visited the office of 7th respondent, where he discovered that unknown persons have tampered with the contents of his file in respect of the land in dispute, he discovered that some documents were missing from his file, while forged documents not emanating from him were introduced into his file purporting to be his own e.g. his letter of allocation that was forged twice. In the course of his investigation, the 3rd respondent and his close friend, one Alhaji Kamba (appellant) offered to buy off the said property from him, and being afraid that he could completely loss the property since most of his documents

were either missing from the file or falsified, he was forced to accede to the request of the 3rd respondent to sell the land. The 2nd respondent maintained that he was not aware of the revocation of his right to the plot until the 3rd respondent drew his attention to the said letter of revocation after he has sold the land to the 3rd respondent. He testified that later the 3rd respondent approached him requesting him as a former Minister of the Federal Republic of Nigeria to assist him to see the then Minister of the Federal Capital Territory on his behalf since the 3rd respondent was yet to register his transaction with him with the Lands Department, that he wrote three (3) separate letters to the Honourable Minister of Federal Capital Territory appealing to him to rescind the revocation, that he met the then Minister physically who admitted his error in revoking his right occupancy and promised to re-allocate the same plot of land back to him, that he wrote a letter dated 31st October, 2006 to the 3rd respondent explaining the Minister’s response to the letters and visit to him and then returning the documents which the 3rd respondent gave him to see

the former Minister Federal Capital Territory, that the 3rd respondent later visited him and informed him that the offer of Statutory Right of Occupancy granted to the 1st respondent had been revoked and a photocopy of a letter dated 12th September, 2008 was shown to him by the 3rd respondent, that he did not at any time write a letter to complain of criminal trespass to the police and did not institute civil action in suit number FCT/HC/CV/838/07.

The case of the 3rd to the 6th Defendants (4th 7th respondents herein) as contained in their pleading and evidence is that the Plaintiff (1st respondent herein) was offered a Right of Occupancy over a vacant plot of land situate at Plot 172 Cadastral Zone A06 Maitama, Abuja by the 3rd Defendant. The certified true copy of the letter of grant dated the 23rd January, 2007 was received in evidence as Exhibit 13. That same plot was allocated to the 1st Defendant (2nd respondent) in 1996. Due to the 2nd respondent’s failure to develop the land for 9 years in breach of the term of the grant that it should be developed within 2 years of grant, the 4th respondent herein revoked the said grant to him. The Notice of

Revocation dated the 8th August, 2005 was sent to him at No. 1st Avenue, 12th Crescent, Plot 7 Gwarimpa Estate, Abuja, his last known address. The 2nd respondent’s revoked grant was reinstated by a letter of re-instatement dated 12th September, 2008 (Exhibit 12). The same 4th to 7th respondents that issued the letter maintained that they were deceived by 2nd respondent into issuing it and that it was deceptively procured in bad faith, that he misinformed the committee set up by the 4th respondent to review cases of revoked titles in the Federal Capital Territory that he had obtained building plan approval to develop the plot before the revocation and that he commenced and completed development of the said plot before the revocation of the title from him. It is also their case that at the time the purported re-instatement letter of 12th September, 2008 was procured, the 1st Defendant failed to disclose to the 4th respondent or the committee set up to review cases of revoked titles in Federal Capital Territory that Plot 172, Cadastral Zone A06, Maitama, Abuja was already a subject matter of litigation in Court, as well as a subject of police investigation.

The letter of the police and that of the 3rd to the 6th Defendants were received in evidence as Exhibits 14 and 14(a) respectively.

The case of the 3rd respondent and appellant herein as 2nd and 7th defendants is that the 2nd respondent was the original allottee of Plot No. 172 Cadastral Zone A06 Maitama, Abuja and same was allotted to him in 1996 by the 4th respondent vide file number MFCT/LA/94/PL/1682, that he then re-sold the plot of land in dispute to the appellant, that upon purchasing the said plot of land and the appurtenances there to from the 3rd respondent, the appellant applied and revalidated the approved building plan for the development of the plot and to the knowledge and with consent of the 4th to 7th respondents, mobilized on site and developed the plot.

The sales agreement between the 3rd respondent and the appellant was received in evidence as Exhibit 15. The letter of re-instatement was tendered and rejected in evidence and accordingly marked as R16. The Sale agreement between the 2nd respondent and the 3rd respondent in respect of Plot 172 Cadastral Zone A06 Maitama, Abuja is Exhibit 10. The Original copy of an acknowledgment

receipt by the 1st Defendant dated 8th December, 2005 was received is Exhibit 10(a). Re-certification and re-issuance of certificate of occupancy dated 14th May, 2005 is Exhibit 10(b). Letter of authority to register power of occupancy on Plot 172 situate at Maitama District A06 donated in favour of the 2nd Defendant by the 1st Defendant is Exhibit 10(c). Letter of consent by the 1st Defendant to the 2nd Defendant dated 14th December, 2005 is exhibit 10(d).

The trial Court considered the pleadings and evidence of all the parties. It is clear from the expressed terms of the judgment that the trial Court considered the pleadings and evidence of the plaintiff (1st respondent herein) and found that it proved the 1st respondent’s title to the disputed plot. The exact text of the part of the judgment containing this finding reads thusly- “Thus from the facts of this case and the evidence presented before me, it is only the Plaintiff that has lawfully produced title documents over plot 172 A06 Maitama. Indeed, the 1st Defendant’s title over the same plot of land had already been revoked and his interest extinguished. Thus the above facts are

supported by the admissions of the 3rd to 6th Defendants in paragraphs 1, 2, 3 and 6th of their joint statement of defence. The facts having been admitted by the 3rd – 6th Defendants that the Plaintiff is the rightful and indeed the holder of the Statutory Right of Occupancy, I wonder then who else is in the position to make such assertions. And the law is trite that facts admitted need no further proof. See Z.P. IND LTD v. SAMOTECH LTD (2007) 16 NWLR (Pt 1060) page 315 at 339, U.B.A V JARGABA (2007) 11 NWLR (Pt 1045) page 247 at 269 – 270.
Hence, therefore, the Plaintiff been in possession and the holder of the Statutory Right of Occupancy over plot 172 A06, Maitama, Abuja the Right of Occupancy automatically extinguishes all existing rights or interest over the same parcel of land, i.e. Plot 172 (A06) Maitama, Abuja. See the case of GANKON V. UGOCHUKWU CHEMICAL LTD. (1993) 6 NWLR (pt. 297) page 62, TITILOYE V OLUPO (1991) 7 NWLR (pt. 205) page 521.
It is also curious to note that the 1st Defendant, 2nd and 7th Defendants, as I said earlier, did not tender in evidence their title documents. In fact, I have to conduct a search in the case file

when I stumbled on the revoked offer of statutory right of occupancy of the 1st Defendant. The 1st Defendant alleged that he sold the land to the 2nd Defendant who in turn sold same to the 7th Defendant. In the amended statement of defence of the 1st Defendant, the 1st Defendant at paragraph 2 pleaded the latter of allocation but such letter of allocation was never tendered in evidence. I am therefore in total agreement with the Plaintiff’s Counsel when he submitted that the omission to tender in evidence the title documents of the 1st Defendant and that of the 2nd and 7th Defendants defeats the entire claims of the 1st, 2nd and 7th Defendants to title to the land in dispute. See NWOKOROBIA V. NWOGU (2009) ALL FWLR (pt. 476) page 1868, ATAMAH V. EBOSELE (2009) ALL FWLR (pt. 473) page 1385.
Thus, from the avalanche of evidence adduced before this Court by the Plaintiff particularly the title documents granted to the Plaintiff by the 3rd to 6th Defendants, it is crystal clear that the Plaintiff has sufficiently and effectually proved her title to Plot 172 Cadastral Zone A06, Maitama, Abuja by production of documents of title duly authenticated and executed.”

The argument of Learned Counsel for the appellant that the trial Court’s judgment was based on the purported weakness of the defence of 1st, 2nd and 7th defendants is wrong. The trial Court did not decide the case on the basis of the weakness of the case of the 1st, 2nd and 7th defendants.

It is glaring that the trial Court also considered the defence of the defendants in their pleadings and evidence. It found that the 1st, 2nd and 7th defendants failed to rebut the case established by the pleading and evidence of the plaintiff. It held that; “on the preponderance of evidence adduced by the plaintiff to establish her title to plot 172 A06 Maitama Abuja, the evidence being cogent and probable, I believe the evidence of the plaintiff that she is the title holder over plot 172 A06 Maitama, Abuja. I disbelieve the evidence of the 1st, 2nd and 7th defendants. Accordingly, the plaintiff is entitled to the declaration and I declare as follows:
(1) A declaration that the Plaintiff is the beneficial owner and rightful holder of the Statutory Right of Occupancy with File No. 21331 over all the Plot of land known and situate at

Plot 172 Cadastral Zone A06, Maitama, Abuja.
(2) A declaration that by virtue of the subsistence of the right of occupancy issued in favour of the Plaintiff on the 23rd January, 2007, she remains the beneficial owner and is entitled to the possession, quiet use and occupation of all plot of land thereon situate and lying at Plot 172, Cadastral Zone A06 Maitama, Abuja.
(3) A declaration that the 1st Defendant whose title to the said plot of land had since been validly revoked, has no right, legal or equitable, to enter into and carry out any development whatsoever on the said plot of land without the acquiescence, authority or consent of the Plaintiff first had and obtained.”

There is no ground of this appeal challenging or complaining against the trial Court’s belief of the evidence and disbelief of the evidence of the appellant, 2nd and 3rd respondents. By not appealing against this decision of the trial Court, the appellant accepted it as correct, conclusive and binding upon him.

Having accepted as correct the trial Court’s belief of the plaintiff’s evidence and disbelief of the evidence of the 1st, 2nd and 7th

defendants, grounds 2, 4, 6, 7, 8, 9 and 10 of this appeal, issues Nos. 1, 3, 5, 6 and 7 raised for determination from those grounds and the arguments of these issues are invalid.

Inspite of the foregoing, to satisfy the requirement that this Court as a penultimate Court, must consider all issues raised by all parties before it, let me consider the argument of Learned Counsel for the appellant that the trial Court was wrong to have held that there was a valid revocation of the 2nd respondents right of occupancy of plot 172 as the evidence before it established that there was no valid service to notice of revocation. The part of the judgment of the trial Court that held that the revocation of the 2nd respondent’s right of occupancy is valid reads thusly- “In the instant case, DW2, Laminu Shehu a staff of the 3rd – 6th Defendants testified as follows:-
“That the said Exhibit B which validly revoked the 1st Defendant’s title over Plot 172 Cadastral Zone A06, Maitama, Abuja was accordingly and immediately sent to the 1st Defendant at 1st Avenue, 12th Crescent, Plot 7 Gwarimpa Estate, Abuja being the last known address of the

1st Defendant”. Although the 1st Defendant denied receiving or knowledge of the notice of revocation, it is interesting to refer to Exhibit 9, the letter of the 1st Defendant to the 3rd Defendant, the Minister FCT. Exhibit 9 was tendered in evidence through DW1 that is the 1st Defendant, in the letter dated 13 June, 2006 it reads:-
1st Avenue, 12th Crescent,
House No. 7,
Gwarinpa Estate,
13th June, 2006.
The Honourable Minister,
Federal Capital Territory,
Abuja.
Dear Sir,
RE: NOTICE OF REVOCATION OF UNDEVELOPED PLOTS WITHIN FEDERAL CAPITAL CITY
Honourable Minister Sir, please refer your letter reference PL1682, New No. PL10433 dated 8th August, 2005 on the above.
The Notice of Revocation was received not long ago. Plot No. 172 A06 Maitama was allocated to me on 6th November, 1996. The award document was presented for re-certification on the 14th May, 2005.”
From the contents of Exhibit 9, the 1st Defendant clearly and unequivocally admitted the receipt of the Notice of Revocation, Exhibit 11. It is also important to note that the address of the 1st Defendant on Exhibit 9 was the same

address DW2 averred as having sent to the 1st Defendant the Notice of Revocation Exhibit 11. Also under cross-examination by the Plaintiff’s Counsel, the 1st Defendant as DW1, in answer to a question put to him said:-
“The land Department of the 3rd Defendant normally send correspondence to me by DHL.”
On the other hand, during cross examination of DW1, by the Learned Counsel for the 3rd – 6th Defendants, DW1 stated as follows:-
“I can see Exhibit 7 (a). The Plaintiff on Exhibit 7(a) is Alhaji Hussaini Z Akwanga. I can read the 1st claim of the Plaintiff (and it reads). The plot in question in Exhibit 7(a) is the subject matter of the present suit. I can read paragraph 8 of the statement of claim (and it reads). Exhibit 11 is the Revocation Notice served on me as per paragraph 8 of my statement of claim. DW1 continued with the following answer during cross-examination by the 3rd – 6th Defendants Counsel:-
“I can read paragraph 5 of the same witness statement on oath. The letter of revocation I averred in paragraph 5 of my witness statement on oath is the same as Exhibit 11 admitted in evidence

before the Court.”
From the above and indeed by Exhibit 9, the 1st Defendant had admitted, as I said earlier, receipt of Notice of Revocation, Exhibit 11. I am therefore in total agreement with the Plaintiff’s Counsel that documentary evidence is the best form of evidence. I further agree with Counsel that a document tendered in Court is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof. See OLUBODUN V LAWAL (supra). Furthermore, by paragraph 8 of Exhibit 7(a) and paragraphs 1 and 2 of Exhibit 9, that the 1st Defendant was served with a notice of revocation dated 8th August, 2005 Exhibit 11 by the 3rd – 6th Defendants, I also agree with the Learned Counsel for the Plaintiff that the 1st Defendant is estopped to give oral evidence to say otherwise.
Thus therefore, pursuant to the admission of the 1st Defendant at paragraph 2 of Exhibit 9 and answers elicited during cross-examination of DW1, the only conclusion I will arrive at is that the notice of revocation, Exhibit 11 was duly served on the 1st Defendant at his address, 1st Avenue 12th Crescent,

House No. 7 Gwarimpa Estate, Abuja by the 3rd – 6th Defendants. And the 1st Defendant by the evidence adduced and his admissions had received the Notice of Revocation I therefore hold the view that the 3rd – 6th Defendants. And the 1st Defendant by the evidence adduced and his admissions had received the Notice of Revocation, I therefore hold the view that the 3rd – 6th Defendants had complied with the provisions of Section 28 (6) and (7) and Section 44 of the Land Use Act in service of the Notice of Revocation on the 1st Defendant over Plot 172 A06, Maitama and I so hold. I further reiterate and hold that based on the evidence before me, the 3rd Defendant validly and lawfully revoked the Statutory Right of Occupancy of the 1st Defendant in accordance with Section 28 (5) (b) of the Land Use Act and I so hold.
Another admission of the 1st Defendant to established that the cunning man received the notice of revocation was in his letter to Minister FCT, El-Rufai, at paragraph 2 of Exhibit 9 he states:-
The notice of revocation was received not long ago. Plot No.172 (A06) Maitama was allocated to me on 6th November, 1996. The award

document was presented for re-certification on the 14th May, 2005.”
In another letter dated the 4th July, 2006 by the 1st Defendant to the Minister FCT, it is titled and reads thus:-
“RE: NOTICE OF REVOCATION OF UNDEVELOPED PLOT WITHIN FEDERAL CITY.
Please, Honourable Minster, refer to my letter dated 13th June, 2006 on the above subject matter and my subsequent discussion with you on same. You informed me that my Plot No. 172 (A06) Maitama had been re-allocated and you most kindly agreed to make a replacement for me with either residential or commercial plot.
2. The purpose of this letter is to submit the photocopy documents with your land office in file No. MISC13983 with the company’s name of AKWANGA BROTHERS COMPANY submitted on 17th September, 1996.
3. I will also be grateful if you approve that the fees paid in respect of re-certification and re-issuance of Certificate of Occupancy amounting to N110,000.00 and N1,073,000.00 respectively be carried over to the fees to be paid on the new plot to be allocated to me. Please Sir, be compassionate as plot No. 172 (A06) Maitama was revoked when the process of

re-certification was still going on.
4. I count on your understanding and good will. May Allah be with you, Sir.
Signed
Hussaini Z. Akwanga.“

Learned Counsel for the appellant has argued that the above holding of the trial Court is wrong because no evidence of receipt of the notice of revocation by the 2nd respondent was elicited by the plaintiff (1st respondent herein), that the 2nd respondent has continued to insist that he was not served with the said notice, that he became aware of the notice, 9 months after he had sold his right of occupancy of the land to the 3rd respondent, that it was 3rd respondent who brought it to his attention when 3rd respondent became aware of it while trying to perfect his title to the disputed land he had purchased from the 2nd respondent, that the 1st, 4th to 7th respondents herein could not produce evidence of any proof of service of the notice on the 2nd respondent, that this failure is fatal to the 1st respondent’s case as plaintiff and that therefore, the findings of the trial Court on the service of the notice by the 4th to 7th respondents on the 2nd respondent is not supported by evidence

and is wrong in law, that evidence of service of notice of revocation of a right of occupancy on the holder of the right can only be documentary and not oral, that oral testimonies or depositions on oath that the notice was served are not sufficient proof of such service in the absence of documentary evidence of such service, that there cannot be a valid revocation of a right of occupancy where the holder has not been served with the notice of revocation of that right, that the 2nd respondent denied receiving any notice of revocation at his residence on 1st Avenue, 12 Crescent plot 7 Gwarimpa Estate, Abuja, that 2nd respondent usually receives correspondences served on him at that address and usually acknowledges receipt of same, that the trial Court was wrong to have held that the notice was served on 2nd respondent on the mere allegations of the 4th to 7th respondents without more, that the service has to be personal and that it is not enough to simply assert without more that it was delivered at the last known address of the holder of the right of occupancy sought to be revoked, that the trial Court was wrong to have relied on the 2nd respondent’s

admission of being served with the notice of revocation in Exhibit 9 without more to grant the declaratory reliefs claimed for, that the admission is ambiguous and not specific on the date of the service of the revocation notice, that the 1st respondent’s testimony of how he became aware of the notice of revocation was not controverted by the 1st respondent, that the notice of revocation should be set aside.

Learned Counsel for the 1st respondent argued in reply that DW2 testified on behalf of the 3rd – 7th defendants (now 4th to 7th respondents) that they sent the notice of revocation to the 2nd respondent at 1st Avenue, 12th Crescent, Plot 7, Gwarimpa Estate, Abuja, his last known address, that the 2nd respondent whose right of occupancy was revoked by the notice admitted receiving the notice in Exhibits 7(a) and 9, that the claim of the 2nd respondent that it was the 3rd respondent and appellant that made him become aware of the revocation was denied by the appellant herein, that the notice of revocation was served on the 2nd respondent and that the trial Court was right when it held that the revocation of the 2nd respondent’s right of occupancy was valid.

Learned Counsel for the 4th to the 7th respondents argued that it is the 2nd respondent who was served the notice of revocation that should complain against the decision of the trial Court that he was served the notice of revocation and not the appellant, the 2nd respondent did not complain against the said decision, that if he was not satisfied with the judgment, he would have appealed against it, that the 2nd respondent admitted receiving the notice of revocation, that what is admitted need no proof, that the appellant is a busy body and only the 2nd respondent can complain about the decision that he was served notice of revocation and that the trial Court was right when it held that there was a valid revocation of the 2nd respondent’s title to the disputed plot.

Let me now determine the merits of the above arguments of all sides.

The evidence elicited by the defendants in the trial did not rebut, but rather supported, the case established by the pleading and evidence of the plaintiff that as at 22-1-2007, when the 4th to 7th respondents herein (3rd to 6th defendants) granted the statutory right of occupancy of plot

172 to her, the statutory right of occupancy they had granted the 2nd respondent herein on 6-11-1996 had been revoked by a notice of revocation dated 8th August, 2005.

DW2 testifying for the 3rd to 6th defendants (4th to 7th respondents herein) admitted that the notice of revocation was immediately sent to the 1st defendant (2nd respondent) at Plot 7 1st Avenue, 12th Crescent, Gwarimpa, Abuja, his last known address. The exact testimony reads thusly-
“That the said Exhibit 8 which validly revoked the 1st Defendant’s title over Plot 172, Cadastral Zone A06, Maitama, Abuja was accordingly and immediately sent to the 1st Defendant at 1st Avenue, 12th Crescent, Plot 7, Gwarinpa Estate, Abuja being the last known address of the 1st Defendant.”

The argument of Learned counsel for the appellant that the notice of revocation must be served on the person of the holder of the right of occupancy sought to be revoked is not correct. S. 44 of the Land Use Act which prescribes how a notice required by the Act to be served on any person shall be effectively served on him provide for alternative means of service. Personal service is one of

them. Another is by leaving or sending the notice to the said holder’s usual or last known abode. The exact text of the said S.44 reads thusly-
“44. Any notice required by this Act to be served on any person shall be effectively served on him –
a. By delivering it to the person on whom it is to be served; or
b. By leaving it at the usual or last known place of abode of that person; or
c. By sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode; or
d. In the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office; or
e. If it is not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served, by addressing it to him by the description of “holder” or “occupier” of the premises (naming them) to which it relates, and by delivering it to some person on the premises or, if

there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.“

The 2nd respondent as DW1 had admitted that Plot 7 at 12th Crescent, 1st Avenue, Gwarimpa Estate Abuja is his usual abode, where he usually receives correspondences. He admitted being served with the notice of revocation in paragraph 5 of his witness statement on oath in Suit No. FCT/HC/CV/838 filed on 14-6-2007 by him challenging the revocation of his right of occupancy of 172 and the grant of same to the 1st respondent by the 4th and 5th respondents herein. The suit was later struck out for want of prosecution. Paragraph 5 of the witness statement on oath of the 2nd respondent as plaintiff in that suit deposed thusly-
“That while I am waiting for new certificate of occupancy, I was served with revocation letter dated 8th August, 2005 and that altered my position physically and psychologically.”

The said witness statement on oath is tendered in evidence here as part of Exhibit A. The 2nd respondent had also admitted receiving the notice of revocation in his letter of 13th June, 2006 to the

4th respondent appealing for a rescission of the revocation (exhibit 9). He stated therein thusly-
“The Notice of Revocation was received not long ago. Plot 172 A06, Maitama, was allocated to me on 6th November, 1996. The award document was presented for re-certification on the 14th May, 2005…
Please, the Hon. Minister, I am appealing to you to kindly rescind your revocation decision to revoke the said land.”

The 2nd respondent had on 4-7-2006 written Exhibits 12 and 12(a) to the 4th respondent requesting that he be reallocated another 1 plot in place of the one revoked and that the fees he paid for the re-certification and re-issuance of a certificate of occupancy to plot 172 that has been revoked be deemed as payment for the new plot to be allocated him.

Exhibit 7(a) is part of the evidence by which the Plaintiff (now 1st respondent) established that 4th respondent had revoked the 2nd respondent’s right of occupancy of the plot long before the 4th respondent granted same to her. This was the case the defendants had the evidential burden to rebut by virtue of S.133(2) of the Evidence Act 2011.

The testimony of the 2nd respondent (1st defendant) as DW1 in open Court was not consistent on his receipt or non receipt of the notice of revocation. Under cross examination he identified Exhibit 11 as the notice of revocation that was served on him and in another breadth testified that he was not aware of the revocation of his right of occupancy of Plot 172, that it was the 3rd respondent herein to whom he had sold the plot since 14-12-2005 that drew his attention to the revocation and took a photocopy of the notice of revocation to him at Akwanga. Also the 2nd respondent’s testimony as DW1 that the 3rd respondent drew his attention to the revocation and that the photocopy of the notice of revocation was taken to him at Akwanga was contradicted and defeated by the appellant while testifying as DW3 on behalf of the 3rd respondent and himself. DW3 testified that-
“It is not correct that I and the 2nd Defendant told the 1st Defendant that the land was revoked. It is not true that I and the 2nd Defendant travelled to Akwanga and gave the 1st Defendant the letter of revocation of the land.”

The 2nd respondent (1st defendant) who earlier admitted on

13-6-2006 in Exhibit 9, on 4-7-2006 in Exhibit 12 and on 14-6-2007 in his witness statement on oath in Exhibit 7(a) that he received the notice of revocation subsequently on 22-2-2011 while testifying in open Court turned around to deny that he received the notice of revocation. He had in Exhibit 12 accepted the revocation and asked for a replacement of the revoked plot. His said denial in open Court was clearly an afterthought.

What is obvious from the terms of Exhibits 7(a), 9 and 12 is that after the 2nd respondent was served the notice of revocation, he wrote Exhibit 9 to the 4th respondent acknowledging receipt of the notice of revocation and pleading that the 4th respondent rescind the revocation, that the 2nd respondent wrote Exhibit 12 on 4-7-2006 requesting that he be allocated another plot to replace the one revoked and already allocated, that the 2nd respondent that had thereby accepted the revocation by the letter of 4-7-2006 in Exhibit 12, still proceeded to file suit No. FCT/HC/CV/838/2007 in the High Court of the Federal Capital Territory challenging the said revocation and the subsequent grant of the same plot to the 1st respondent, that

the 2nd respondent in his said suit admitted on oath that he received the notice of revocation.

The terms of Exhibit 7(a) show that as at 14-6-2007, the 2nd respondent filed suit No. FCT/HC/CV/838/2007 on the basis of his claim of being the owner of the right of occupancy to Plot 172, his claim that he was in possession of same and that the 1st respondent had entered thereon and is carrying on construction works thereon. In the said suit, he challenged the revocation on the ground that it was not in the overriding public interest and that it was done in bad faith. He did not challenge it on the ground that he was not served the notice of revocation. He admitted that he was served the notice. He did not state or suggest that he had sold his right of occupancy of the plot to the 3rd respondent or anybody before he received the notice of revocation and before the 4th respondent reallocated the plot to the 1st respondent. He did not join the 3rd respondent and appellant as parties in that suit.

The statement of claim in that suit states the case he presented as follows-
1. The Plaintiff is a former Minister of the Federal Republic of Nigeria and

now ordinarily residence of Akwanga Local Government Area of Nasarawa State out of the Jurisdiction of this Hon. Court.
2. The 1st & 2nd Defendant are Government Agent responsible for the allocation, Management and control of Land in the entire Federal Capital Territory Abuja.
3. That the 3rd Defendant is a business lady ordinarily residence at No. 2 IBB Close, Uphill Minna Niger State outside the Territorial Jurisdiction of this Hon. Court.
4. The Plaintiff avers he has been in possession of Plot No. 172 Maitama District Abuja covered by the Right of Occupancy with Re: No. MFCT/LA/PL.1682 dated 6th November, 1996. The said Right of Occupancy is hereby pleaded and shall be rely upon at the trial.
5. The Plaintiff avers that he has exercise Right of Possession on the said plot over a number of years without interruption from any person or authority until recently in February/March, 2007 when he noticed the activities of the 3rd Defendant on the plot and demanded that she stops her acts of trespass but refuses.
6. Plaintiff avers that when the regularization/certification exercise commenced he paid to AGIS the sum of N1,073,100.00

for the purpose of Regularization and issuance of Certificate of Occupancy as demanded in their letter with Ref: No. MFCT/LA/PL.1682A dated 6th July, 2005. The said letter and the receipt of payment are hereby pleaded and shall be founded upon at the trial.
7. Plaintiff avers that he also pay the sum of N10,000.00 for Re-certification of the said plot through the account of AGIS on the 30th day of April, 2005 and acknowledgment of receipt with file No. PL. 1682 dated 14th May, 2005 was issued to him. The acknowledgment of receipt and evidence of payment are hereby pleaded and shall be rely upon at the trial.
8. Plaintiff avers that while he was waiting for new certificate of occupancy he was served with revocation letter dated 8th August, 2005 and that alter his position physically and psychologically.
9. Plaintiff avers that the said plot No. 172 is purported to be allocated to the 3rd Defendant herein via an offer of Statutory Right of Occupancy with file No. NG. 21331 dated 23rd January, 2007. The 3rd Defendant is hereby giving notice to produce the original at the trial or the plaintiff shall tender the photocopy of same.

The plaintiff avers that the revocation of his plot is not in the overriding public interest because the 3rd Defendant is an individual like himself and that his allocation was first in time.
11. Plaintiff avers that the 3rd Defendant is now busy developing the said plot day and night without regard to his request that she should stop so that they will sort out their differences.
12. Plaintiff avers that the 1st and 2nd Defendant’s action on the revocation was done in bad faith because the action is not in conformity with the spirit of fairness and the Land use Act relied on by them. The letter of revocation addressed to the Plaintiff dated 8/8/05 is hereby pleaded.
13. Plaintiff avers that the 3rd Defendant’s allocation was granted in January, 2007 while his offer date back to November, 1996 and hence he has exercise reasonable number of years in possession.
14. Plaintiff avers that he construction work going on at the instance of the 3rd Defendant amount to trespass and violation of the right of Privacy of the Plaintiff.
WHEREOF THE PLAINTIFF CLAIMS AS FOLLOWS:
1. Declaration that the Plaintiff is the owner of the Plot

No. 172 Maitama – Abuja, by virtue of the Right of Occupancy No. MFCT/LA/PL 1682 dated 6th November, 1996 and having perfected and complied with all regularisation exercise laid down by the 1st and 2nd defendant.
2. Declaration that the Purported revocation of the Plaintiff’s right of occupancy and the allocation of same to the 3rd defendant by the 1st and 2nd defendant is illegal, null and void, unconstitutional and against the spirit of the Land Use Act, 1978.
3. Declaration that construction works being carried out by the 3rd defendants in cohorts with the 1st and 2nd defendant amounts to an acts of trespass, threat and intimidation to the title of the Plaintiff’s Right of Occupancy and possession of the said Plot No. 172 Maitama Abuja.
4. AN ORDER directing the 1st and 2nd defendants to allow the Plaintiff to use the Plot No. 172 Maitama – Abuja having paid the prescribed fees thereto without interference any longer.
5. AN ORDER of perpetual Injunction restraining all the Defendants from tempering with the Plot NO. 172 covered by the Right of Occupancy NO. MFCT/LA/PL.1682 dated 6th July, 2005 in any manner

whatsoever.
6. The sum of N10 Million as general damages for the actions of the 1st and 2nd Defendant and the trespass of the 3rd Defendant jointly and severally.
7. The cost of this action.”

In his witness statement on oath that accompanied the writ of summons and statement of claim, he deposed that-
“I, ALH. HUSSAINI Z. AWAKANGA, Male, Adult, Muslim and Nigeria Citizen do make Oath and state as follows:-
1. That I am the Plaintiff and owner of Plot No. 172 within Maitama Abuja covered by the Right of Occupancy NO. MFCT/LA/PL.1682 dated 6th November, 1996.
2. That I have been in possession of the said plot of land since 1996 until the purported revocation of the said land in August, 2005.
3. That when the regularization/certification exercise commenced I paid to AGIS the sum of N1,073,100.00 for the purpose of Regularization and Issuance of Certificate of Occupancy as demanded in their letter with REF. NO.MFCT/LA/PL.1682 dated 6th July, 2005.
4. That I also pay the Sum of N10,000.00 for Re-certification of the said plot through the account of AGIS on the 30th day of April, 2005 and acknowledgment of receipt

with file NO.MFCT/LA/PL.1682 dated 6th July, 2005.
5. That while I am waiting for new certificate of occupancy, I was served with revocation letter dated 8th August, 2005 and that allor my position physically and psychologically.
6. That the said Plot No. 172 is purported to be allocated to the 3rd Defendant here an offer of Statutory Right of Occupancy with file No. NG. 21331 dated 23rd January, 2007.
7. That the revocation of my plot is not in the overriding public interest because the 3rd Defendant is an individual like myself.
8. That the 3rd Defendant is now busy developing the said plot day and night without regard to my request that she should stop so that we sort out our differences.
9. That he 1st and 2nd Defendant action on the revocation was done in bad faith because the action is not in conformity with the spirit of fairness and the Land Use Act relied on by then.
10. That the 3rd Defendant’s allocation was granted in January, 2007 while my offer date back to November, 1996.
11. That I want this Hon. Court to do the following for me:-
1. Declaration that the revocation of the Plot No. 172 covered by the

Right of Occupancy No. MFCT/LA/PL.1682 dated 6th July, 2005 is illegal, unconstitutional null and void and of no effect whatsoever.
2. Declaration that the allocation of Plot NO. 172 covered by the Right of Occupancy NO. MFCT/LA/PL.1682 dated 6th July, 2005 to the 3rd Defendant is illegal and void abinitio and amount to trespass on the part of the 3rd Defendant.
3. An Order directing the 1st and 2nd Defendant to forthwith revert back the Plot NO. 172 covered by the Right of Occupancy NO. MFCT/LA/PL.1682 dated 6th July, 2005 to me.
4. An Order of perpetual Injunction restraining all the Defendants from tempering with the Plot NO. 172 covered by the Right of Occupancy No. MFCT/LA/PL.1682 dated 6th July, 2005 in any manner whatsoever.
5. The sum of N10 Million as general damages for the actions of the 1st and 2nd Defendant and the trespass of the 3rd Defendant.
6. The cost of this action.“

It is obvious from the terms of his statement of claim and witness statement on oath in Suit No. FCT/HC/CV/838/2007, which suit was dismissed for want of prosecution, that his later statements in his pleading and evidence in this case that he

sold plot 172 to 3rd respondent on 14-12-2005 and for that purpose executed a sale agreement, power of attorney and letter of consent on the same day in favour of the 3rd respondent as well as exhibit 8 (acknowledgment of receipt of the purchase price), Exhibit 10 (The sale agreement dated 14-12-2005), 10(a) (acknowledgment receipt), Exhibit 10(c) (letter of authority to register power of attorney dated 14-12-2005) and Exhibit 10(d) (letter of consent dated 14-12-2005) were after thoughts.

This is further buttressed by the fact that the testimonies of the 2nd respondent and those of the appellant and 3rd respondent irreconcilably contradict each other on the sale of the plot 172 by the 2nd respondent to the 3rd respondent or any other person. The case of the 2nd respondent in his pleading and evidence is that he sold the plot on 14-12-2005 to 3rd respondent. The case of the 3rd respondent and the appellant in their pleading is that the 3rd respondent sold the plot to the appellant who then built on it.

But the testimony of DW3 (appellant) on behalf of 3rd respondent and himself contradicts the above position. He testified under cross-examination that-

“Xxx Rotimi:-I know the 1st Defendant, I know him as a former Minister and also we had a land transaction with him in which he sold to me and I have paid him. What happened is it was his son that sold land to me and I paid him in 2006. I am the person that bargained and transacted to purchase the land from the 1st Defendant. I am the person that bargained for the land with the 1st Defendant directly and I paid the 1st Defendant in the presence of my friend whom I asked the 1st Defendant to put his name as the purchaser. It is correct that I gave my friend the money to buy the land from the 1st Defendant for me. I cannot remember when I bought the land from the 1st Defendant. I can see Exhibit 10(a) I am aware of Exhibit 10(a) but there is a receipt issued to us in 1996 for the purchase of the land in dispute. I am the one that signed my witness statement on oath. I can see Exhibit 10, the sales agreement. I am the person that signed Exhibit 10. Exhibit 10 is dated 14th December, 2005. I don’t know about my statement of defence. Paragraphs 7.8 of the 2nd – 7th Defendants statement of defence is correct and I stand also by paragraph

6.15 of my witness statement on oath. It is correct from my statement of claim and statement on oath that it was the 2nd Defendant that bought the land directly from the 1st Defendant and not me. I am not lying to the Court. What happened is I gave the 2nd Defendant the money to purchase the land from the 1st Defendant on my behalf. I did not say that the 2nd Defendant bought the land from the 1st Defendant and I then bought the land on 8th December, 2005, the land was fenced had a boys quarters and a security house. I built it myself on the land. I did not develop the land before the purchase. I purchased the land since 1996. When I bought the land in 1996 from the son of the 1st Defendant, I was given title documents. The 1st Defendant’s son only gave me the offer letter in respect of the land. I don’t know the date in the offer letter…It is correct that the 2nd Defendant bought the land from the 1st Defendant on 14th December, 2005. It is true that it is the same 2nd Defendant that I gave money to buy the land for me. I still maintain my position that the land was not revoked. The evidence of the 1st Defendant that at the time he sold the

land on 14th December, 2005 that the land was vacant is not true.
Xxx Chime – On 23rd of June, 2005, I conducted a search on the land. And there was no problem. I did not register the title documents at the land Registry. I have problems with the Plaintiff concerning the land in dispute. After the sale on 14th December, 2005, I have paid ground rent to the authorities. I took the Plaintiff to Court in the name of the 1st Defendant because I did not register the Power of Attorney. I did not petition to the AIG against the Plaintiff in the name of the 1st Defendant but in my own name as at the time I was building on the land, the 1st Defendant came to the site more than 20 times. I live on the property now.
Xxx Okoli: It is correct I bargained directly with the 1st Defendant for the sale of the land in dispute. I also paid the money myself for the land. It is true that Exhibit 10 was issued to me through the 2nd Defendant. I did not sign as the buyer because in the 1st transaction with the 1st Defendant, the 1st defendant denied the purchase and that is why I now used my friend as the buyer and I signed as a witness. It was in 1996 that I bought the land

from the 1st Defendant and he denied. I bought the land from his son and to the knowledge of the 1st Defendant. The son to the 1st Defendant sold the land to me as the owner of the land in 1996. The 1st Defendant’s son is Ibrahim Ashiru Akwanga. When the 1st Defendant denied, we then gave him more money for the land. It is correct that because I bought the land from the son that is why the 1st Defendant denied the transaction. On the 14th December, 2005, the 1st Defendant sold the land on 14th December, 2005 to me. It is correct that as at 14th December, 2005, I have fenced the land, built a boys quarter and a security house. It is not true to say that as at 14th December, 2005 when I erected the fence, boys quarters and security gate the land was not sold to me. I can see exhibit 10. I signed Exhibit 10 as a witness. I have just one signature. I signed my witness statement on oath. The signature on my statement on oath and on Exhibit 10 are the same. It is correct that I sued in the name of the 1st Defendant. The 1st Defendant is aware of the suit at Maitama. The Right of Occupancy given to me is dated 6th November, 1996. Ashiru Akwanga gave me the

offer letter to the land. The offer letter given to me by Ashiru is not a fake one. At the time I was given the offer letter I was told that the offer letter belonged to the 1st Defendant. Ashiru Akwanga told me that the offer letter belongs to his father. I believed that the offer letter given to me by Ashiru is a genuine one. It is correct that we conducted a search report on the offer letter dated 6th November, 1996. It is not true that the offer letter dated 6th November, 1996 is a fake one. A search report was issued to me. This is the search report I seek to tender the search report in evidence.”

It is noteworthy that the testimony of DW3 that as at 14-12-2005, the disputed plot was fenced and had a boys quarters and a security house erected thereon by him is contradicted by the testimony of the 2nd respondent(DW1) that the plot was undeveloped as at 14-12-2005 when he sold it to the 3rd respondent. The above testimony of DW3 contradicts itself on who he purchased the plot from, when he purchased the land and when he developed it.

In the light of the foregoing, I uphold the decision of the trial Court that the 2nd respondent herein was

validly served the notice of revocation of his right of occupancy to the disputed plot 172 and that the revocation of his said right of occupancy by the 4th respondent is valid and lawful.

Let me now consider the issues concerning whether the 2nd respondent’s revoked right of occupancy to the disputed plot 172 was reinstated.

The judgment of the trial Court on this issue reads thusly- “Thus, issue No. 1 of the Plaintiff, issue 1 of the 1st Defendant and issue No. 2 of the 3rd – 6th Defendants are all resolved in favour of the Plaintiff. It appears also that due to the inter connectivity of the issues formulated by the parties, I will deal with the 2nd issue for determination as set out by the 1st Defendant’s Counsel, i.e whether the 1st Defendant’s title purportedly revoked, was reinstated by the 3rd – 6th Defendants, thus re-validating the title of the 2nd and 7th Defendants.
I have substantially dealt with this issue in the consideration of the earlier issues already set down for determination. However, I will want to add and refer to the cross-examination of DW2 by the learned Counsel for the 1st Defendant

and that of the 2nd and 7th defendants. The 3rd to 6th Defendants witness, DW2 in answer to a question put to him by Counsel to the 1st Defendant states:-
“It is to my knowledge also that the plot was re-instated back to the 1st Defendant.”
S.A Ameh SAN, also during cross-examination of DW2, DW2 answered as follows:-
“I am aware that the 3rd to 6th Defendants are Defendants in this case. As at 2008, the Defendants are aware of this case in Court. What we do in AGIS is to discharge our statutory responsibilities bestowed on the 3rd – 6th Defendants. I don’t have any personal or pecuniary interest in this case but I am only discharging my functions. I am not a member of review Committee on revoked plots. I did not participate in the review exercise. I am aware that the reinstatement of the 1st Defendant title was published on pages of National Dailies. I don’t have any document to show that the reinstatement has been rescinded.”
It is on the basis of the above that counsel to the 1st Defendant submitted that evidence or answers elicited during cross-examination of DW2 being unchallenged and

uncontroverted, this Court cannot discountenanced them but the Court has a legal duty to act on them.
It is a fact the letter of re-instatement have been rejected in evidence and reasons on record were stated. However, it is not in all cases that documentary evidence becomes a sine quo non. Even at that the evidence of DW2 before the Court and the answers elicited during cross-examination, in my humble view doses not assist the 1st, 2nd and 7th Defendants that their title to plot 172 A06 have been instated. The 3rd – 6th Defendants at paragraphs 8 and 9 of its joint statement of defence averred as follows:-
(8) “The 3rd, 4th, 5th, and 6th Defendants aver that the purported re-instatement of revoked title No. PL 1682/PL/10433 over Plot 172 within Maitama A06 District Abuja letter dated 12th September, 2008 and pleaded by the 1st Defendant was deceptively procured in bad faith.”
(8) The 3rd, 4th, 5th and 6th Defendants further aver that the committee set up by the 3rd Defendant to review cases of revoked titles in Federal Capital Territory was wrongly informed as follows:-
(a) That the 1st Defendant had obtained building plan

approval before the revocation of Plot 172, Cadastral Zone A06 Maitama Abuja from him.
(b) That the 1st Defendant commenced and completed development of the said plot before revocation of the title from him.
The averments stated above are supported by the evidence of DW2 at paragraphs 10 and 11 of his sworn testimony. In other words, the answers elicited during cross-examination is to the effect that “yes it is correct there was a purported letter of reinstatement but it was deceptively procured in bad faith. The 1st, 2nd and 7th Defendants did not cross examined DW2 on that piece of evidence that it was deceptively procured in bad faith.
In fact, the above piece of evidence lends credence to the fact that the only building plan approval tendered in evidence, Exhibit 5 is that of the Plaintiff. The 2nd and 7th Defendants had deposed at paragraph 7.10 of the joint statement of defence as follows:-
“The 7th Defendant upon purchasing the said plot and the appurtenance thereto from the 2nd Defendant applied and revalidated the approved building plan and to the knowledge and with consent of the 3rd – 6th Defendants, mobilized

on site and developed the plot.”
The evidence of DW3, the 7th Defendant supports the above averment at paragraph 6.17 of DW3’s witness statement on oath. However, the revalidated approved building plan was not produced or tendered in evidence. The 1st Defendant as DW1 testified under cross-examination by the learned counsel for the 3rd – 6th Defendants as follows:-
“I did not submit building plan approval.”
The above testimony of DW1 and DW3 appears to be in conflict as well as paragraphs 3 of Exhibit 9. DW1 had clearly submitted that he did not submit building plan approval to the 3rd – 6th Defendants. And that is why DW2 testified on the deception and procurement of documents by the 1st, 2nd and 7th Defendants. Then whose building plan was submitted to the 3rd – 6th Defendants for revalidation?
It is interesting to also note that the 1st Defendant as DW1 under cross-examination by the learned counsel for the 3rd – 6th Defendants disassociated himself from Exhibit 10(b), the acknowledgment slip issued to him by the 3rd – to the 6th Defendants as not his own. Exhibit 10(b) was tendered

and admitted through the same witness, DW1 by learned counsel for the 2nd and 7th Defendants. How did the 2nd and 7th Defendants get this document, Exhibit 10(b)? And how about the admission of DW1 in paragraph 3 of Exhibit 9 to make corrections on the submitted building plan to the Department of Development Control? It appears to me that the 1st, 2nd and 7th Defendants are bunch of liars with serious credibility problem. In fact, from the evidence before me and the facts of this case, the trio of the 1st, 2nd and 7th Defendants were in concert to abate and temper with the records of the 3rd – 6th Defendants in the subject matter in dispute. It is strange and disgusting for a person of the 1st Defendant, a former Minister of the Federal Republic of Nigeria can state in paragraph 6 of Exhibit 9 as follows:-
“Honourable Minister, you have brought sanity all over the Federal Capital Territory and I pray Allah will protect you in your reform effects. Please do me one more favour to withdraw the revocation notice in the said plot.”
The same 1st Defendant, in his amended statement of defence stated in respect of the former Minister of

FCT, Nasir El-Rufai as follows:-
“The 1st Defendant denies the averments contained in paragraph 8 of the statement of claim and states that any such allocation of the said property now in dispute to the Plaintiff was wrongful, illegal, null and void and of no legal effect, being one of such arbitrary and executive lawlessness, recklessness, nepotism, oppression and man-know man negatives attitudes which characterized the administration of the Minister of Federal Capital Territory, Mallam Nasir El-Rufai.”
If the reforms referred to by the 1st Defendant in his letter to the former Minister, Exhibit 9 of paragraph 6 includes enforcement of Rules and Regulation as in Exhibit 2(i), in order to develop the Capital City, why is the 1st Defendant now making uncomplimentary remarks on the same person he earlier praised? The answer is not farfetched. The former Minister refused to rescind the Revocation Notice on Plot 172 A06 Maitama.
I have watched closely the demeanour of the 1st and 7th defendants as DW1 and DW3 while testifying before me. Even though I cannot acclaim them as medically insane in their activities but it appears the lucid

intervals or the madness in which they temper with the records of the 3rd – 6th Defendants in relation to this Plot of land the answer again will not be far-fetched if they are acclaimed as such. The 1st Defendant in his amended statement of defence and witness statement on oath thought he can be clever by crying foul that his land documents with the 3rd – 6th Defendants are being tempered by unknown persons. It is in evidence that those tempering with the documents and indeed with full knowledge of the 1st Defendant are the 2nd and 7th Defendants. It is in evidence that the notice of Revocation was brought to the knowledge of the 1st Defendant by the 2nd and 7th Defendants. It is also in evidence that the purported reinstatement letter was brought to the knowledge of the 1st Defendant by the 2nd and 7th Defendants. It is also in evidence that the 1st Defendant in order not to lose out in the subject matter of dispute was forced to sale the land to the 2nd and 7th Defendants. And it appears from the facts of this case and evidence of DW3, the 1st, 2nd and 7th Defendants work in concert to commit fraud of falsification of documents in relation to

Plot 172 Cadastral Zone A06. The evidence of DW2 in which the reinstatement letter was deceptively procured clearly established the fact that DW1 and DW3 are fraudulent and indeed doing everything humanely and even inhumanly to revalidate 1st Defendant’s title to Plot 172 Cadastral Zone A06.
As I said, in the process of procuring the reinstatement letter, because the 1st and 7th Defendants are so blind folded, and in a hurry to manufacture evidence, instead of correctly spelling out the name of the 1st Defendant and his address known to the 3rd – 6th Defendants, the name of the 1st Defendant was spelt out as “HUSSAINA Z. AKWANGA”. Thus, I have closely watched the demeanour of DW1 and DW3 while testifying before me. They are not witnesses of truth and they are tainted with credibility problem.
In any case, be it as it may, the evidence of DW2 during cross-examination by the 1st, 2nd and 7th Defendants Counsel is not helpful t them because the evidence is in consonance with the unshaken evidence of DW2 at paragraphs 10 and 11 of his deposition on oath.
Thus therefore, based on the reasons rejecting the reinstatement letter

marked R16 and the evidence and facts presented by the parties for determination on issue No.2 of the 1st Defendant, the issue is resolved in favour of the Plaintiff.
Accordingly, I hold the view that the revocation of the 1st Defendant’s title by the 3rd Defendant was valid and in accordance with the law and the 3rd – 6th Defendants never re-validated the title of the 1st Defendant over plot 172 A06 Maitama, Abuja and I so hold.”

There is no ground of this appeal complaining against the above findings and holdings of the trial Court that the 2nd and 3rd respondents “are bunch of liars with serious credibility problem, that the three of them “were in concert to abate and temper with the records of the 3rd to 6th defendants on the subject matter in dispute”, that the three “work in concert to commit the fraud of falsification of documents in relation to plot 172 Cadastral Zone A06”, that “the evidence of DW2 in which the reinstatement letter was deceptively procured clearly establish the fact that DW1 and DW3 are fraudulent and indeed doing everything humanely and even inhumanly to revalidate the

1st defendant’s title to plot 172 Cadastral Zone A06”, that “in the process of procuring the reinstatement letter, because the 1st and 7th defendants are so blind folded and in a hurry to manufacture evidence, instead of correctly spelling out the name of the 1st Defendant and his address known to the 3rd – 6th defendants, the name of the 1st Defendant was spelt out as “HUSSAINA Z. AKWANGA”, that they are not witnesses of truth and they are fainted with credibility problem.”
By not appealing against these findings and holdings, the appellant accepted them as correct, conclusive and binding. See Iyoho v. Effiong (2007) 4 SC (Pt.iii) 90 and Dabup v. Kolo (1993) 12 SCNJ 1. His acceptance of these findings and holdings as correct defeats grounds 6, 9 and 10 of the further amended notice of this appeal, issues Nos. 1, 3 and 7 raised for determination in the appellant’s brief and all arguments of those issues.

It is obvious from those unchallenged findings that the trial Court believed the testimony of DW2 that the reinstatement was procured mala fide by deception, refused to give effect to the reinstatement

because of its view that the appellant, 2nd and 3rd respondents worked in concert to falsify documents of Plot 172 and the reinstatement letter was a product of that process. It is also obvious from the said unchallenged findings that the trial Court did not believe the testimonies of DW1 and DW3 on the point as it found them to be a bunch of liars and not witnesses of truth.

It was the 3rd to 6th defendants that issued the letter of reinstatement that contended that it was obtained by deception and false information. The paragraphs 8 and 9 of their joint statement of defence in which they raised this issue is reproduced in the above quoted portion of the judgment of the trial Court.

The 3rd respondent and appellant as 2nd and 7th defendants averred in paragraph 9 of their joint statement thusly-
“The 2nd and 7th defendants will further state that the 3rd to 6th Defendants having rescinded the said revocation of the 1st Defendant’s title to Plot 172 Cadastral Zone A06, Maitama, Abuja and their act of reinstatement of the 1st Defendant’s title, they are estopped from contending otherwise.”

It is clear that the

parties in their pleadings joined issues on whether the appellant, 2nd and 3rd respondent obtained the issuance of the letter of reinstatement of the 2nd respondent’s right to plot 172 by deception or false pretence. The trial Court tried the issue and found that the reinstatement was indeed procured by deception.

It is curious that the reinstatement was made on 12-9-2008, two years after 2nd respondent had in his letter of 4-7-2006 in Exhibit 12 accepted the reallocation of plot 172 to the 1st respondent herein and requested that a replacement be made for him with either a residential or commercial plot and that the fees he paid for the recertification and re-issuance of certificate of occupancy to plot 172 before his right therein was revoked be deemed payment for the replacement plot.

In any case, the 4th respondent herein having granted the 1st respondent the statutory right of occupancy to the said plot 172 on 21-1-2007 and not having revoked that right, had no right or interest in the same plot to grant or reinstate to the 2nd respondent on 12-9-2008. The right of occupancy the 2nd respondent had in plot 172 had become extinguished since

he received the notice from the 4th respondent revoking his right of occupancy. The said plot was reallocated to the 1st respondent on 21-1-2007. The 2nd respondent acknowledged and accepted this fact and applied for a replacement. So as at 12-9-2008, the 4th respondent had no right or interest in plot 172 to reinstate or by another means give to the 2nd respondent. So the purported reinstatement of 12-9-2008 did not affect the validity of the 8th August, 2005 revocation of the then existing 2nd respondent’s right of occupancy to plot 172 and the validity of the grant of the right of occupancy of same to the 1st respondent on 21-1-2007.

In the light of the foregoing, I resolve issues Nos. 1, 3, 6 and 7 in the appellant’s brief in favour of the 1st respondent.

Let me now determine issue No. 2 which asks “Whether the learned trial Judge was right to have ignored the Appellant’s Motion for stay of proceedings pending the determination of the interlocutory appeal before the Court of Appeal and thus went ahead to deliver judgment. “

I have carefully read and consider the arguments of all sides on this issue.

It is clear from the record of this appeal that after the ruling of the trial Court on 31-3-2011 rejecting the admission of the letter of reinstatement of the 2nd respondent’s title to plot 172 dated 12-9-2008 as evidence during the testimony of DW3 (appellant herein), the trial continued, the DW3 concluded his testimony on 4-4-2011, the defence closed heir evidence and the case was adjourned for final addresses. Following conclusion of final addresses on 30-5-2012, the case was adjourned for judgment to 14-7-2012.

On 2-7-2012, the 7th defendant (appellant herein) filed a motion on notice praying for –
“1. An order of stay of further proceedings and or the delivering of the judgment in this suit i.e. Suit No. FCT/HC/CV/1147/08 which has been set down for judgment on the 14th day of July, 2012 pending the hearing and final determination of the 7th defendant/applicants motion for stay of proceedings of this suit filed at the Court of Appeal on the 14th day of May, 2012 to stay proceedings of this Honourable Court arising from the Appeal filed by the 7th Defendant/Applicant from the ruling of this Court delivered on the 31st day of March, 2011

rejecting the letter of re-instatement of revoked title number PL1682/PL10433 over plot 172 Maitama (A06) District Abuja the subject matter of this suit as being the fulcrum of the case of the 7th Defendant/Applicant.
2. For such further order(s) as may be deem fit by this Honourable Court to make in the circumstance.”
The motion states that –
“The Grounds upon which this application is bought are:-
1. That this Honourable Court on the 31st March, 2011 delivered a ruling wherein a document which forms fulcrum of this case was rejected.
2. That upon the ruling of the Court, the Applicant herein filed an appeal to the Court of Appeal against the said Ruling of 31st March, 2011.
3. That the said appeal has been duly entered at the Court of Appeal Abuja division on 2nd May, 2012.
4. That a motion to stay these proceedings have been filed in the Court of Appeal and hearing of same have been fixed.
5. That the ultimate interest of justice demands the grant of this application.”

Issue No. 2 in the appellant’s brief proceeds on the assumption that the trial Court ignored this motion and went ahead to

deliver the judgment in the suit. It is clear from the express terms of the judgment that this is a false assumption. The trial Court did not ignore the application as it first determined the application before deciding the merit of the suit. It considered all the affidavits and written processes filed by the parties in respect of the application and rendered its decision on the application. The exact text of that decision reads thusly- “It is premised on the above that I want to look at this case and the circumstances of the present application. Firstly, this suit was filed on the 27th June, 2008 and the suit was assigned to then Court 23 of my learned brother Honourable Justice Agbaza delivered a ruling refusing to strike out the name of the 1st Defendant from this suit. The 1st Defendant appealed against that interlocutory decision and a motion for stay of proceedings was filed by the 1st Defendant. The motion on notice for stay of proceedings was refused. However, some busybody or middle some interlopes were at their best in this case and they got the case transferred from my learned brother C.O. Agbaza J., to this Court. The order of transfer by the

Honourable Chief Judge of the FCT High Court was made on the 29th April, 2009. Thus by the order of this Court granted on the 10th March, 2010, the 7th Defendant/Applicant was joined as a party in this suit.
Furthermore, by the order of this Court granted on the 14th July, 2010, the 2nd and 7th Defendants entered appearance in this suit out of time, and the Court ordered the 2nd and 7th Defendants to file their statements of defence within three (3) weeks with effect from 14th April, 2010. The 2nd and 7th Defendant did not file their defence as ordered by the Court until after 5 months pursuant to the Order of this Court granted on the 10th December, 2010. He statement of defence of the 2nd and 7th Defendants was filed after Plaintiff had concluded its evidence.
In any case, the 7th Defendant/Applicant opened its case for defence on the 31st March, 2011. The Court on the same date delivered an interlocutory Ruling rejecting a letter of re-instatement of plot 172 Cadastral Zone A06, Maitama, Abuja. The 7th Defendant/Applicant filed several applications to the Court of Appeal and before this Court. The 7th Defendant/Applicant having failed in securing

orders for stay of further proceedings, in the same concert or as middle some interlopers as they did when the matter was pending before my learned brother in Court 23, got the Honourable Judge to transfer the case from this Court to Court 32. The 7th Defendant/Applicant waited until when all the parties in this case have closed their respective cases and the matter adjourned for address when the Applicant sought for such transfer. Subsequently, the Honourable Chief Judge in his wisdom rescinded his decision of transfer of this case.
In view of the above facts and circumstances, it is the law that grant or refusal of the present application is discretionary. And it is also the law that in the exercise of my discretion, it must be exercised judiciously and judicially. It is also the law that the remedies sought in this type of application are equitable in nature. In the instant case, the 7th Defendant/Applicant filed in the present motion on notice seeking a stay of further proceedings with the attitude and antecedents of the Applicant on record, does the Applicant deserve equity or equitable remedies?
To answer the above question, it will also entail

me determining the 1st issue formulated by the Plaintiff/Respondent. Firstly, the 7th Defendant/Applicant filed earlier the following motions on notice:-
1. Motion on notice dated the 13th April, 2011 and filed on 14th April, 2011. The prayer sought in that motion on notice is as follows:-
“An order of this Honourable Court staying further proceedings in suit number FCT/HC/CV/1147/08 pending the hearing and determination of the appeal against the Ruling of the Court delivered on the 31st March, 2011.
2. The second motion on notice dated and filed on 25th May, 2012 by the 7th Defendant/Applicant prays the Court for the following:-
“An order of this Honourable Court staying further proceedings in suit number FCT/CV/1147/08 pending the hearing and determination of the appeal against the Ruling of the Court delivered on the 31st March, 2011.”
The present motion on notice under consideration prays as follows:-
“An order stay further proceedings and or delivery of the judgment in this suit i.e. suit number FCT/HC/1147/08 which has been set down for judgment on the 14th July, 2012 pending the hearing and the final

determination of the 7th Defendant/Applicant’s motion for say of proceedings of this suit filed at the Court of Appeal on the 14th of May, 2012 to stay proceedings of this Honourable Court arising from the appeal filed by the 7th Defendant/Applicant from the Ruling of this Court delivered on the 31st day of March, 2011 rejecting the letter of re-instatement of revoked title number PL1682/PL10433 over Plot 172 Maitama, (A06) District, Abuja the subject matter of this suit as being the fulcrum of the case of the 7th Defendant/Applicant.”
The above are the prayers sought in the respective motion on notice by the 7th Defendant/Applicant. The issue to determine now is whether the present application and the reliefs sought are the same with the reliefs sought in the earlier motions on notice. However, before I determine or answer the question, I want to state here that my duty in the present application is not to determine the interplay of words my duty is to determine whether an abuse of Court process or abuse of judicial process had occurred by filing the present application. An answer can be found in the case of ASHLEY AGWASIM and 1 OR V DAVID OJICHIE and 1 OR

(2004) 10 NWLR (pt. 882) page 613 at page 616 where the SCN held:-
“In the determination of whether an abuse of the judicial process has occurred, the Court will consider the content of the first process vis-à-vis, the second one to see whether they are aimed at achieving the same purpose.”
In the present application and the applications filed on 14th April, 2011 and 25th May, 2012 they are all aimed at postponement of proceedings in suit number FCT/HC/CV/1147/08 whether in this Court or in the Court of Appeal. The submissions of learned Senior Advocate, Hassan Liman at page 5-11 of his reply on points of law is completely irrelevant and misconceived. I therefore hold the view that the present application filed on 2nd July, 2012 is an abuse of judicial process and I so hold.
As I said earlier, the attitude of the 7th Defendant/Applicant in bringing this application at this stage was in bad faith. The 7th Defendant/Applicant has done everything within his unproductive energy to frustrate the hearing and determination of this case but unsuccessfully. In fact he changes Counsel at will and at every stage. The three

applications for stay of further proceedings were filed by different Counsel with the sole aim of frustrating this case. No matter how long the journey, it must one day come to an end. The attitude of the Applicant has only succeeded in delaying this matter and it is on that ground that I will want to comment on the interlocutory decision of this Court delivered on the 31st March, 2011. The decision as averred at paragraph 3 of the affidavit in support of the application is in respect of a document rejected in evidence.
The Applicant and his Counsel at the end of this case whichever way it goes will have the opportunity of appealing to the Court of Appeal in all aspects of the decision of the Court not satisfied rather than the piece-meal approach. To stay further proceedings in a matter that had already spent about five (5) years in Court it is my considered view that it is unjust, unfair and it will amount to denial of justice to the other parties particularly the Plaintiff. the adage “justice delayed is justice denied” will find its way in this instant case.
In the case of AMADI V NNPC (2000) 10 NWLR (pt. 674) page 76 of 100, UWAIS CJN

(as he then was) said in this type of application as follows:-
Finally, this appeal succeeds and it must be allowed. The chequered history of this case once more brings to light the dilatory effect of interlocutory appeal in the substantive suit between the parties. The action in this case was brought on the 29th day of April, 1987. The motion on notice to strike out the case for want of jurisdiction is dated 15th April, 1988 that is about a year after the suit was filed. The Ruling of the High Court was delivered on the 20th June, 1988. The appeal against the Ruling was delivered by the Court of Appeal on the 6th of February, 1989. The final judgment on the interlocutory appeal is delivered today by this Court. It has thus taken thirteen (13) years for the case to reach this stage. With the success of the plaintiff’s appeal before us, the case is to be sent back to be determined back to the High Court to be determined, hopefully on its merits after a delay of 13 years.
Surely this could have been avoided had it been that the point was taken in the course of proceedings in the substantive claim to enable any aggrieved party to appeal on both

the issue of jurisdiction and the judgment on merit in the proceedings as the case might be. I believe that counsel own it as a duty, to the Court to help reduce the period in determining cases in our Courts by avoiding unnecessary preliminary objections as the one here, so that the adage “justice delayed is justice denied may cease to apply to the proceedings of our Court”.
In the instant case, I resolve all the issues for determination in this matter in favour of the Plaintiff/Respondent. Accordingly, the Motion on Notice dated 29th June, 2012 and filed on 2nd July, 2012, being an abuse of judicial process, is hereby dismissed with N100,000 cost against the Applicant in favour of the Plaintiff/Respondent.
Having disposed of the motion on notice of the 7th Defendant/Applicant, I will now proceed to consider the final written addresses of the parties in this case.”

After it disposed of the application, it then proceeded to decide the merit of the suit. So it is glaring that the trial Court did not ignore or fail to consider the said application.

Issue No. 2 in the appellant’s brief derives from ground one of the

further amended notice of this appeal which reads thusly- “The Learned trial Judge erred in law when he ignored the Motion for stay of proceedings pending at the Court of Appeal before proceeding to deliver judgment in the substantive suit contrary to the decision of the Supreme Court in Mohammed Vs Olawunmi (1993) 4 NWLR (PT 287), PG 254 @ 277 – 278 which was followed by the Court of Appeal in the case of Orizu Vs Ofomata (2007) 13 NWLR (PT 1052) PG 407 @ 505 – 506, thereby occasioned a substantial miscarriage of justice.
PARTICULARS OF ERRORS
i. The Appellant filed an appeal against the interlocutory ruling of the trial Court which was delivered on the 31st March, 2001.
ii. The Appellant filed a Motion for stay of Proceedings at the Court of Appeal on the 14th day of May, 2012 after same application was heard and refused by the trial Judge.
iii. The Appellant filed a further Motion for stay of proceedings before the trial Court pending the hearing and determination of the Motion for Stay of Proceedings filed at the Court of Appeal which was adjourned to 12th of February, 2013.
iv. That the information of the

pendency of the Motion for stay of proceedings at the Court of Appeal was brought to the attention of the trial Judge.
v. That the trial Judge ignored/failed to consider the pendency of the Motion for stay of proceedings at the Court of Appeal before delivering his judgment.“

Since it is glaring that the trial Court in its judgment did not ignore or fail to consider the application of 2-7-2012 for stay of proceedings, there is no factual basis for the complain in ground 1 of the further amended notice of appeal, issue No. 1 derived therefrom and all the arguments based thereon.

In any case there is no ground of this appeal complaining against the above reproduced decision of the trial Court holding that the said application is an abuse of judicial process and dismissing same. By not appealing against this decision, the appellant accepted it as correct, conclusive and binding on it.

The argument of Learned Counsel for the appellant under issue No. 1 that the above decision of the trial Court is wrong is incompetent as it does not flow from issue No. 1 as couched and there is no ground of this appeal complaining that it is wrong. The said

argument is inconsistent with issue No. 1 that asserts or alleges that the trial Court ignored and failed to consider the application for stay of proceedings. It is settled law that in an appeal, arguments in a brief, must be consistent with the issue for determination on which the argument is based. It is also settled law, that arguments in a brief must address a complain in a ground of the appeal. An argument of an issue not raised in any of the grounds of an appeal and issue deriving from it is incompetent and not valid for consideration.

In the light of the foregoing, ground one of this appeal, issue No. 2 derived from it and the arguments based on the issue are hereby dismissed.

Let me now determine issue No. 5 which asks “Whether the learned trial Judge was right to have invoked the principle of Quid quid plantatur solo solo cedit to hand over the property of the Appellant to the 1st Respondent when the 1st Respondent had not established title or exclusive ownership over the property.“

I have carefully read and considered the arguments in the respective briefs on this issue.

Learned Counsel for the appellant argued that

the learned trial Judge erred in law when His Lordship invoked the principle of quic quid plantatur solo, solo cedit in favour of the 1st Respondent when from the evidence led, the Plaintiff/1st Respondent has failed to prove that the title of the 1st Defendant/2nd Respondent was validly revoked in accordance with the applicable provisions of the Land Use Act, Cap L5, Laws of the Federation of Nigeria, 2004, that the maximum “Quic quid plantatur solo solo cedit” is still good law and will be invoked where it is found that a person trespassed into another’s land and erected structures thereto knowingly, but it must be noted that this general rule of law is subject to some exceptions and is not applicable in the case at hand as 2nd Respondent’s title had not been validly terminated in law as there was no proper service on him of the Notice of Revocation, that therefore, the title of the original Allotee was still subsisting as at the time that the Appellant acquired the property from the 2nd Respondent, that the title of the original Allotee (now the 2nd Respondent) could only be said to be extinguished upon receipt of a Notice of

Revocation and there was no evidence before the trial Court to show that any Notice of Revocation was personally served on the 2nd Respondent and same is received thus invalidating the purported revocation, and rendering the subsequent grant of a right of occupancy to the 1st respondent an exercise in futility as the principle of “nemo dat quod non habet” automatically comes into play therein.

Learned Counsel for the 1st respondent argued that the learned trial judge was right in invoking the principle of quic quid plantator solo solo cedit as the 2nd respondent no longer had any right or interest on the said Plot 172, Cadastral Zone A06, Gwarinpa, Abuja that he can transfer to a third party and any development on the said land belongs to the landowner, the 1st Respondent herein.

Learned Counsel for the 4th to 7th respondents argued that whoever trespasses and builds on a land belonging to another person ought to know that whatever is in the land belongs to the owner of the land, that the trial Court was therefore right to have invoked the principle in favour of the 1st Respondent and we urge Your Lordships to so hold and dismiss this

appeal in its entirety.

Let me now determine the merits of the above arguments.

The corollary of the argument of Learned Counsel for the appellant that the trial Court was wrong to have invoked the principle of quic quid plantatur solo solo cedit to vest in the 1st respondent ownership of the buildings erected on the land by the appellant because there was no valid revocation of the 2nd respondent’s right of occupancy to plot 172 and that therefore his right of occupancy to the land subsisted and was validly sold by him to the 3rd respondent who then validly resold same to the appellant is that if the 2nd respondent’s right of occupancy to plot 172 was validly revoked, then the invocation of the principle of quic quid plantatur solo solo cedit to vest in the 1st respondent ownership of the buildings erected on plot 172 by the appellant would be right.

I have already upheld herein the decision of the trial Court that the notice of revocation was validly served on the 2nd respondent and that his right of occupancy in Plot 172 was validly revoked.

The 2nd respondent testified as DW1 that when he sold Plot 172 on 14-12-2005 to the

3rd respondent, the plot was undeveloped and vacant. In Exhibit 7(a) one of the reasons he gave for suit No. FCT/HC/CV/838/2007 filed on 14-6-2007 is that the 1st respondent had entered the said Plot 172 and was busy developing it day and night. The appellant testified as DW3 that he was aware of the pendence of the said suit No. in Exhibit 7(a) and he also deposed to a witness statement on oath in that suit. Inspite of his knowledge of the revocation of DW1’s right of occupancy to the plot and that therefore the root of his title to the plot had been revoked and inspite of his knowledge that the 2nd respondent (DW1) filed a suit to challenge the revocation, DW3 proceeded to develop plot 172 and has completed building on it and is living there now without waiting for the final resolution of the dispute concerning the revocation of the 2nd respondent’s right of occupancy to the land.

The trial Court determined that Plot 172 was vacant and undeveloped when it was allocated to the 1st respondent by the 4th respondent on 23-1-2007 and applied the principle of quic quid plantatur solo solo cedit in favour of the 1st respondent, the owner of the

right of occupancy to the plot. The exact text of the judgment of the trial Court reads thusly- “The next issue is whether the Plot No. 172 Cadastral Zone A06 Maitama was developed before the Statutory Right of Occupancy was granted to the Plaintiff. Learned Counsel for the Plaintiff had submitted that the disputed Plot 172 Cadastral Zone A06, Maitama Abuja was vacant and not developed as at 23rd January, 2007 when same was re-allocated to the Plaintiff vide Exhibits 2 and 13. The position of learned Counsel for the Plaintiff may not be farfetched in view of the following:-
(1) The 1st Defendant corroborated this fact when in paragraphs 11 and 14 of Exhibit 7(a) states:
“(11) Plaintiff avers that the 3rd Defendant is now busy developing the said plot day and night without regards to his request that she should stop so that they will sort out their differences.”
(14) Plaintiff avers that the construction work going on at the instance of the 3rd Defendant amount to trespass and violation of the right of privacy of the Plaintiff.”
It should be noted that Exhibit 7(a) is the writ of summons and statement of claim

commenced in the High Court of FCT by the 1st defendant as Plaintiff then and the present Plaintiff as third Defendant. The claim No. 3 of the 1st Defendant as Plaintiff then in Exhibit 7(a) is also instructive and it says:-
“Declaration that the construction works being carried out by the 3rd Defendant in cohorts with the 1st and 2nd Defendants amounts to an acts of trespass, threat and intimidation to the title of the Plaintiff’s Right of Occupancy and possession of the said Plot No. 172 Maitama, Abuja.”
It is also imperative to refer to paragraph 26 of the amended statement of defence of the 1st Defendant in the present case. He averred as follows:-
“The 1st Defendant categorically denies paragraphs 20-21 and 22 of the statement of claim and further denies erecting any structure whatsoever on the property and states he sold the property as a vacant undeveloped land to the 2nd Defendant. The 1st Defendant however states that from his investigation that one Alhaji Ibrahim Kamba a close associate of the 2nd Defendant lives in the storey building erected on the property.”
The 1st Defendant as DW1 gave evidence at

paragraph 29 of his witness statement on oath to the effect that as the time he sold the plot of land in dispute it was vacant and it was undeveloped. Further, the 1st Defendant averred at paragraph 9 of his amended statement of claim as follow:-
“The 1st Defendant further avers that in the said letter referred to in paragraph 8 above, it was stated that I applied for a building plan approval in respect of the said property while he made no such application.”
The above averment of the 1st Defendant is supported by his evidence at paragraph 11 of his witness statement on oath. The 1st Defendant had categorically denied and testified that he never submitted application for building plan approval to the 3rd – 6th Defendants.
A look at Exhibit 7(d), the Ruling of the High Court of FCT duly certified, the 1st Defendant as Plaintiff in Exhibit 7(d) applied for interlocutory injunction pursuant to a motion dated 1st May, 2007 and filed on 21st May, 2007 against the present plaintiff as 3rd Defendant, the present 3rd and 4th Defendants as 1st and 2nd Defendants then. The Court, as per Exhibit 7(d) declined the interlocutory injunction

on the ground that acts to be restrained have already been carried out and completed. It is further important to refer to Exhibit 7(c) particularly the proceeding of 26th November, 2007. The Court held as per Exhibit 7(c) as follows:-
“Parties are to maintain status quo with regard to the subject matter of this suit until the hearing and determination of the motion in question.”
The 3rd – 6th Defendants admitted the fact that the Statutory Right of Occupancy the 3rd Defendant granted to the Plaintiff over Plot 172 A06, Maitama, the said plot of land was a vacant plot. See paragraph 2 of the joint statement of defence of the 3rd – 6th Defendants.
Having considered the facts and evidence of 1st Defendant, 3rd – 6th Defendants and indeed paragraphs 20-23 of the Plaintiff’s further amended statement of claim and paragraphs 20-22, 26-28 of PW1’s witness statement on oath, I quite agree with learned Counsel for the Plaintiff that as at 8th August, 2005 when the land was validly and effectually revoked and the 23rd January, 2007 when the plot was re-allocated to the Plaintiff herein, the land was vacant bare

and undeveloped by either the 1st Defendant and or the 2nd and 7th Defendants. However, the 2nd and 7th Defendants at paragraph 7.10 of their joint statement of defence averred as follows:-
“The 7th Defendant upon purchasing the said plot and the appurtenance thereto from the 2nd Defendant applied and revalidated the approved building plan and to the knowledge and with consent of the 3rd – 6th Defendants mobilized on site and developed the plot.”
The above averment of the 1st and 2nd Defendants is supported by the evidence of DW3 at paragraph 6.17 of his witness statement on oath.
However the only approved building plan duly issued by the 3rd – 6th Defendants is Exhibit 5 granted to the Plaintiff. Exhibit 5, the building plan approval was granted to the Plaintiff pursuant to Exhibit 3, 3(a) and 4(a), that is Statutory Right of Occupancy initial bill and the payments made thereto by the Plaintiff to the 3rd – 6th Defendants.
By Exhibit 5, the Plaintiff lawfully, moved and commenced development on Plot 172 A06 Cadastral Zone, Maitama, Abuja. The averment of the 7th Defendant at paragraph 7.10 and his evidence at

6.10, the 2nd and 7th Defendants failed to produce or tender the revalidated building plan approval in evidence. In fact under cross-examination by the learned Counsel for the 3rd – 6th Defendants, the 7th Defendant as DW3 answered as follows:-
“I am the person that applied and submitted for re-validation of my building plan. The 1st building plan was submitted in the name of the 1st Defendant. It is true the application for building plan approval was made in the name of the 1st Defendant before the 14th of December, 2005. I got the consent of the 1st Defendant before submitting the application for building plan in his name. It is not true that I am among the people tampering with file of the 1st Defendant at AGIS. Paragraph 6.17, the re-validation is in respect of the earlier one submitted in the name of the 1st Defendant.”
From the evidence of DW1, that is the 1st Defendant the 1st Defendant did not submitted any application for building plan approval before he sold the plot of land or even after he had purportedly sold same. The 1st Defendant was very categorical in his evidence that he did not applied for building plan approval

but rather some people are tampering with his records of the land at AGIS. It is also very clear and indeed crystal clear that from the evidence adduced before the Court and the processes and proceedings in Exhibits 7(a), 7(b), 7(c) and 7(d), the 2nd and 7th Defendants in concert with the 1st Defendant developed the Plot after Revocation and in fact during the pendency of suit No. FCT/HC/CV/838/07 before my learned brother, M.A. Aneinih J., of the FCT High Court. The 7th Defendant under cross-examination by learned counsel for the plaintiff on the 4th April, 2011 admitted that he build the house on the plot in dispute in 2007/2008. The pictures of the House were tendered through the 7th Defendant as DW3 and admitted as Exhibits 17, 17(a) and 17(b).
Thus taking into account paragraphs 5, 11 and 15 of the further amended statement of claim and supported by the evidence of PW1, it is not in doubt that as at the time suit No. FCT/HC/CV/838/07 was filed, the Plaintiff herein was in actual, legal and executive possession of the plot and had commenced development pursuant to Exhibit 5 issued to her by the 3rd – 6th Defendants.
As I said earlier, the

1st, 2nd and 7th Defendants are bunch of liars. The demeanour of the 1st and 7th Defendants when they appeared before me testifying, were always contradicting each other. The first was when DW1 gave evidence that the 2nd and 7th Defendants met him at his village, Akwanga while DW3 denied meeting DW1 in his village at Akwanga. Also DW1 testified that he did not applied for building plan approval, the 7th Defendant stated he did before he sold the plot of land in dispute. The 7th Defendant also contradicted himself. When he stated that he built the house in 1996 on the other hand he said he built the house in 2007/2008.
The 7th Defendant testified also that he applied for building plan in his name for re-validation. The latter contradiction by the 1st and 2nd Defendants, in my humble understanding are material to the fact of commencing development on the plot of land in dispute. It is trite law that for a contradiction to be fatal to a case, is not only must it relate to material facts, it must lead to miscarriage of justice. See KANU V STATE (1993) 9 NWLR (pt 317) page 304 at 322, ADMIN GEN, DELTA STATE V. OGOGO, (2006) 2 NWLR (pt 964) page 366 at 389.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the instant case, the contradiction between the evidence of DW1 and DW2 as to the submission or application for building plan approval, which by clause 2 (i) and (ii) of the Statutory Right of Occupancy, Exhibit 2 is essential to commencing development. In this case therefore, the contradiction on this fact convinced me that both DW1’s evidence and that of DW3 are unreliable.
Accordingly, the contradiction and inconsistencies being material to commencing development, this Court will not rely or act on such inconsistent evidence and I so hold.
The learned Counsel for the Plaintiff had urged me to evoke the maxim quic quid plantatur solo solo cedit and hold that the fixture on plot 172 Cadastral Zone A06, Maitama, Abuja is the property of the Plaintiff.
It is trite law that the Court in interpreting or applying the law, in the instant case, the Land Use Act, the FCT Act and the Constitution, the Court must be mindful and to interpret it as a whole and not in isolation. In other words, I have considered the provisions of Sections 5(1) 28 (5) (a) and (b), (6) and (7), 51 (2) and indeed Section 44 of the Land Use Act, Section 1 of the FCT Act

Act and Section 297 and 302 of 1999 Constitution (as amended). In the present case, it is crystal clear that the 3rd Defendant validly revoked the Statutory Right of Occupancy of the 1st Defendant. Our Constitution is supreme and it is the ground norm of our operation. And if a party should go contrary to our laws of the land, the Court has a herculean task to pronounce it such. The evocation of the maxim quic quid plantatur solo solo cedit which learned Counsel for the Plaintiff urged me to do in this case made me to make reference to the cases of DANTSOHO V MOHAMMED (2003) 6 NWLR (pt 817) page 457 at 490 and IBRAHIM V MOHAMMED (2003) 6 NWLR (pt817) page 615. The facts of the above two cases are in all material particular the same as the facts in the present case. What is of utmost disturbing in the present or instant case is the fact that the subject matter in dispute was been litigated upon in suit No. FCT/HC/CV/839/07 before my learned brother, M.A. Anenih J. More disturbing again is the fact that a Court of competent jurisdiction made an order that parties should maintain status quo as but the 7th Defendant, in concert with the 1st and 2nd Defendants,

proudly and with some degree of pomposity, entered the plot of land in dispute, without any building plan approval, arrogantly chased out the workers of the Plaintiff and commenced development day and night. The Supreme Court of Nigeria, in the cases of DANTSOHO V MOHAMMED AND IBRAHIM V MOHAMMED (supra) never hesitated or minced words in applying the maxim quic quid plantatur solo solo cedit. In fact, in the case of DANTSOHO, the Supreme Court reprimanded the trial chief Judge for allowing the trespasser 3 months to remove his development and the trial Chief Judge was cautioned that he ought to have protected the Plaintiff with an injunction against the Defendants at pages 490 – 491.
Hence, the principles of stare decisis is a principle of law entrenched in our legal system. I have therefore no hesitation to state that from the avalanche of evidence before me and the exhibits also admitted, the Plaintiff is entitled to the fixture on Plot 172, Cadastral Zone, A06, Maitama, and Abuja. Accordingly, I hold the view that, that fixture and development thereon on plot 172 A06, Cadastral Zone, Maitama, Abuja is the property of the Plaintiff and I so hold.”

The trial Court correctly invoked the principle of quic quid plantatur solo, solo cedit in favour of the 1st respondent as the holder of the right of occupancy to Plot 172 on which the buildings were erected by the appellant without the knowledge and permission of the 1st respondent. Since the buildings are affixed to the land of plot 172, they form part of the land of the plot and therefore belong to the owner of Plot 172. S.3 of the Interpretation Act Cap 192 LFN defines land as including “land and everything attached to the earth or permanently fastened to anything which is attached to the earth and all chattels real” and Ibrahim v Mohammed (2003) (pt 817) 615.
The trial Court correctly relied on the Supreme Court decision in Dantsoho v Mohammed (2003) 6 NWLR (pt 817) 457 at 490 that “since title to the land is in the respondent, everything that accedes to the land belongs to the respondent on the principle of quic quid plantatur solo, solo cedit. I think that principle is consequent on a declaration of title. It need not be claimed nor does it need an order of Court for it to operate in favour of a person who has

succeeded in the title claimed. Any argument that the Court is wrong to pronounce on it because it was not sought as a relief is an utter misconception.” See also Unilife Dev. Co. Ltd v. Adeshigbin & Ors (2001) LPELR – 3382 (SC).

In the light of the foregoing, I resolve issue No. 5 in favour of the 1st respondent and 4th to 7th respondents.

Let me now consider issue No. 4 which asks “Whether the learned trial Judge was right to have awarded the sum of Thirty Million Naira (N30,000,000.00) as general damages for trespass and the sum of One Hundred Thousand Naira as cost against the Appellant.“

Learned Counsel for the appellant has argued that the trial Court erred in law when he awarded the sum of Thirty Million Naira (N30,000,000.00) as general damages for trespass and the sum of One Hundred Thousand Naira as cost against the Appellant after invoking the principle of quic quid plantatur solo, solo cedit after handing over the property built by the 7th Defendant (the Appellant herein) to the Plaintiff as this shows that the trial Court failed to award the damages judicially and judiciously, that the award of damages

is made based on some measure of quantification and a careful exercise of judicial discretion, that it is calculated based on what would be the opinion and judgment of a reasonable man in the circumstance of the case and in doing so, the motive and conduct of the Defendant is taken into consideration, that the purpose of award of damages is to compensate the Plaintiff for damage, injury or loss suffered, that the guiding principle is restitution in interregnum, that having invoked the principle of quic quid plantatur solo solo cedit by ordering the handing over of the property single handedly built by the Appellant on the land in dispute to the 1st Respondent as Plaintiff at the trial Court, the 1st Respondent could be said to have been fully restored to the position she was before the alleged act complained of occurred and thus was no longer entitled to further compensation, that the going ahead to still award the sum of Thirty Million Naira (N30,000,000.00) as general damages for trespass and the sum of One Hundred Thousand Naira as cost against the Appellant amounts to double compensation and contrary to the well laid down position of the law.

Learned Counsel for the 1st and 4th to 7th respondents simply argued in reply that the award of 30 Million Naira general damages for the trespass on plot 172 by the 2nd and 3rd respondents and appellant is correct. They did not respond to the argument of Learned Counsel for the appellant that the award amounted to double compensation of the 1st respondent because the trial Court had restored to her plot 172 together with the building thereon erected by the appellant in trespass. Be that as it is, let me determine the merit of this argument.

The determination that the 1st respondent is the valid holder of the right of occupancy to the said plot and her restoration to the peaceful and exclusive possession and occupation of the land is not a compensation because the right of occupancy belongs to her and the decision of the trial Court has merely declared and enforced it. The decision did not give or award her the said right of occupancy. To regard the decision as a compensation suggests that she is being awarded the right as a relief for some wrong she suffered. The decision merely declared and enforced an existing regime of legal right. Since the building on the

land is part of the land, it is wrong to argue that the building erected by a trespasser on a land without the knowledge and permission of the land owner, is compensation to the land owner for the trespass into his land. The building being a part and parcel of the land cannot be compensation to the landowner. See Dantsoho V Mohammed (supra).

It is noteworthy that there is no ground of this appeal complaining against the finding of the trial Court that “the 7th defendant in concert with the 1st and 2nd defendants, proudly and with some degree of pomposity, entered the plot of land in dispute without any building plan approval arrogantly chased out the workers of the plaintiff and commenced development day and night”. By not appealing against it, the appellant accepted it as correct, conclusive and binding. See Iyoho V Effiong (supra).

It is obvious that a building erected on a plot of land in a development controlled area such as Maitama District in Federal Capital Territory, Abuja without a building plan approved by the 4th to 7th respondents is an illegal structure and is liable to demolition. It is absurd to argue that such an illegal

structure erected by a trespasser on the land be deemed as compensation to the lawful owner of the land and that therefore an award to the lawful land owner of general damages for the said act of trespass amounts to double compensation. An illegal structure erected on a land by a trespasser cannot be treated as compensation or donation to the land owner. In any case, even if it was built by the trespasser with an approved plan, it cannot be a donation or compensation to the landowner as it is part and parcel of the land on the principle of quic quid plantatur sols, solo cedit.

I agree with Learned Counsel for the appellant that the judgment of the trial Court did not show that the award of 30 Million Naira as general damages for trespass and the sum of N100,000.00 as costs was the result of a judicial and judicious exercise of discretion. While, the trial Court was right in holding that the plaintiff was entitled to general damages for the trespass on her plot by appellant, 2nd and 3rd respondents, it had a legal duty to state the reasons or basis for the amount it decides is the general damages. The trial Court, after holding that the plaintiff is

entitled to damages for trespass and injunctive orders, then held thusly- “the sum of N30,000,000.00 against the 1st, 2nd and 7th Defendants, being general damages suffered by the Plaintiff as a result of their acts of trespass and unlawful activities on the said land.“
The judgment did not state how the sum of 30 Million Naira was arrived at as the quantum of general damages that should be awarded. Such an award of general damages without reason or any rational basis for the quantum of the award is obviously not the result of a proper exercise of discretion or is not judicial and judicious. As this Court held per Agim JCA in Keystone Bank Ltd V New Arrival Motors Ltd (CA/E/623/2013 of 15-9-2015) Generally, for a Court’s exercise of discretion to be judicial and judicious, it must be supported by correct, valid and convincing reasons. It is arbitrary or wrongful if it is not supported by an reasons or is supported by wrong or insufficient reasons. See EKWUNIFE vs Wayne (WA) Ltd (supra) and Yussuf vs Ilori (supra), a judicial discretion must be exercised on certain principle, according to rules of reason and justice in the context of the

peculiar facts of the case. See UBA vs GMBH (1989) NWLR (pt. 110) 374, Haco Ltd vs Brown (supra), Onabanjo vs Ewetuga (supra) and Gabari vs Llori (supra). The decision resulting from the exercise of discretion must show or reflect a consideration of the said principles and circumstances relied on in reading it. There is no other way of knowing what principle was used, what facts and reasons were relied on, in fixing an amount of cost, if there is nothing in the decision showing the principle applied and the reasons for the decision. The fixing of the amount of costs without showing the principle and reasons relied on, renders the decision perverse, arbitrary and wrongful.”
“An exercise of a Court’s discretion is judicial and judicious if it is reasonable and just in the context of the peculiar facts and circumstances of the case before the Court. It means that the exercise of discretion is not arbitrary or wrongful. See Ekwunife vs Wayne (WA) Ltd (1989) 5 NWLR (pt. 122) 422 at 488 (SC), Oduba vs Houtmangracht and Anor (1997) 6 NWLR (pt. 508) 185 (SC), Haco Ltd vs Brown (1973) 4 (SC) (reprint) 103, R. Lauwers Import-Export vs Jozebson Industries Co., Ltd

(1988) 7 SC (pt 111) 26 and Olumegbon and Other vs Kareem and Others (2002) 5 SC (pt 1) 101.”
This Court as an Appellate Court can interfere with this award for being arbitrary or perverse. See Ighreriniovo v. S.C.C. Nig. Ltd & Ors (2013) LPELR – 20336 (SC).
Since the trial Court did not give any reason for fixing the general damages at 30 Million Naira, I will review the award to find out if the award can be justified by the facts of this case.

It is obvious from the pleadings and evidence, particularly Exhibit 7(a) that the 2nd, 3rd respondents and appellant prevented the 1st respondent from developing plot 172 in May, 2007 by chasing away the workers of the 1st respondent from the plot, that the 2nd respondent filed suit No FCT/HC/CV/838/2007 to challenge and stop the 1st respondent from building on the plot and that during the pendence of the suit, the appellant entered the land and erected a building thereon. The 1st respondent testified in paragraphs 13 to 23 of her witness statement on oath that-
“13. In compliance with the requirement contained in the Right of Occupancy that the said Plot be

developed within 2 years from the date of its grant, subject to the approval of the Building Plan by the Office of the 6th Defendant, I promptly paid the sum of N96,947.94 to the 6th Defendant on or about 10th April, 2007 after which my Building plan was approved.
14. The 6th Defendant approved my Building Plans vide its letter of 10th April, 2007.
15. Upon the completion of all formalities that will make me the beneficial owner of the said plot of land, I commenced development thereon sometime on or about the beginning of May 2007 but was interrupted by the 1st Defendant who trespassed into the said land and chased away all the workers I commissioned to develop the plot for me.
16. Further to paragraph 13 above, the 1st Defendant lodged a complaint of Criminal trespass against me at the Office of the Assistant Inspector General of Police, Zone 7 Headquarters, Abuja and the 3rd – 5th Defendants responded confirming that the title over the said plot now resides in me.
17. Not satisfied with the outcome of his Complaint to the Police and the response by the 3rd – 5th Defendants, the 1st Defendant proceeded to file a Civil Suit

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titled FCT/HC/CV/838/07 on 14th June, 2007 against me and the 3rd and 4th Defendants herein, which suit was directed to His Lordship, Hon. Justice Maryann E. Anenih of High Court 17, Maitama, Abuja for hearing and determination.
18. In the course of the Proceedings in Suit No: FCT/HC/CV/838/07, my Counsel severally complained to the Presiding Judge of the unlawful entry and developments being carried out by the 1st Defendant on the said land.
19. On the 26th November, 2007, the Court in Suit No. FCT/HC/CV/838/07 refused the application for injunctive orders sought by the 1st Defendant (as Plaintiff/Applicant) but parties were enjoined to maintain the status quo pending the final determination of the case and the matter was adjourned to 22nd January, 2008 for hearing and the 1st Defendant and his counsel thereafter stopped coming to Court.
20. Due to the persistent absence of the 1st Defendant (then as plaintiff) from the Court to present his claims in respect of his alleged ownership of the same Plot 172 Cadastral Zone A06, Maitama, Abuja, the matter was on the 27th May, 2008 struck out by that Court for want of diligent prosecution.

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Before and after the Court enjoined parties to maintain status quo and unknown to me and my Counsel, the 1st, 2nd and 7th Defendants had surreptitiously trespassed into the land while the suit of the 1st Defendant over the same land was still pending in Court, and commenced the erection of structures and buildings thereon utter contempt of the Court and the rule of law thereby taking the laws into their hands unlawfully.
22. The 1st, 2nd and 7th Defendants have since completed the development on my plot of land without seeking the authority or approval of the 3rd – 6th Defendants and without my knowledge, consent or authority.
The 1st, 2nd and 7th Defendants act of invasion or entry into my said plot of land and erecting buildings thereon is an act of trespass.“In suit No. FCT/HC/CV/838/2007 filed by the 2nd respondent to challenge the 1st respondent’s development of the plot, (Exhibit 7a), one of the reliefs claimed for reads thusly –
“3. Declaration that the construction works being carried out by the 3rd Defendants in cohorts with the 1st and 2nd defendant amounts to an acts of trespass, threat and intimidation to

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the title of the Plaintiff’s Right of Occupancy and possession of the said Plot No. 172, Maitama, Abuja.“

It is obvious that the cost of erecting the building in the 1st respondent’s approved building plan would be far more today than it would have been in May, 2007 (13 years ago) because the naira has undergone massive devaluation between May, 2007 and today and the persisting inflation. This fact which is common knowledge in Nigeria and is not reasonably open to question does not require proof by virtue of S.124 (1) and (2) of the Evidence Act 2011 which provides that-
“1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is;
a) Common knowledge in the locality in which the proceeding is being held, or generally; or
b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned.
2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection (1) of this Section refers, and shall take such knowledge into account.”

So by preventing the 1st respondent from erecting the

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building on his plot since May, 2007 the appellant, 2nd and 3rd respondent have put upon her the burden of now erecting the building at higher costs.

After preventing the 1st respondent from building thereon, the appellant erected a building thereon without an approved plan and is living thereon and has thereby put the 1st respondent to the difficulty of having to deal with the illegal building on the land and if she chooses to demolish it, bear the cost of the demolition.

In view of the continually diminishing intrinsic and numerical value of the national monetary currency (naira and kobo) and the persisting inflation in Nigeria and the expense of dealing with the illegal building erected by the appellant in plot 172, I think that the sum of 30 Million Naira awarded by the trial Court as general damages for the trespassory acts of the appellant, 2nd and 3rd respondents is reasonable.

The Trial Court disregarded the principle to be observed in fixing costs prescribed by Order 56 Rule 1 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018 (Order 52 Rule 7 of the 2004 Rules) as follows-
“(1) Where any party

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defaults in filing any Court process other than a memorandum of appearance within the time prescribed under the provisions of these rules, such party shall pay the sum of N200 Naira Only for each day of default.
(2) Every application for enlargement of time shall be accompanied by proof of compliance with Rule 1 of this order.
(3) In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put in the proceedings, as well as compensated for his time and effort in coming to Court. The Court may take into account all the circumstances of the case.
(4) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Court at the time of delivering the judgment or making the order.
(5) When the Court finds it impracticable to determine summarily the amount of any costs which he has adjudged or ordered to be paid, all questions relating to it shall be referred by the Court to a taxing officer for taxation.”

Considering that this suit was commenced on 27-6-2008 and the trial

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continued till judgment on 20-7-2012, the fees paid for filing the numerous process, the cost of transporting the 1st respondent, her counsel and witnesses to and from Court during the many sittings of the Court in the case, and the fact that she must have paid her lawyer professional fees, I think that the costs of N100,000.00 awarded by the trial Court in favour of the 1st respondent is not excessive.

In the light of the foregoing, I resolve issue No. 4 in favour of the 1st respondent.

On the whole, this appeal fails as it lacks merit. It is accordingly dismissed. The appellant shall pay costs of N400,000.00 to the 1st respondent.

PETER OLABISI IGE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading before now the Judgment just delivered by my learned brother EMMANUAL AKOMAYE AGIM, JCA and I agree with the extensive resolution of the issues distilled for determination.

Just a word on the old maxim of quid quid plantatur solo solo cedit is still good law and applicable to our land law, the meaning and application was clearly stated in the case of NEPA V. AMUSA & ANOR (1976) LPELR-1956(SC) thusly:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“With respect, we think that the maxim quid quid plantator solo solo cedit is still good law. It is a general rule of great antiquity and it means that whatever is affixed to the soil becomes, in contemplation of law, a part of it, and is subjected to the same rights of property as the soil itself. Thus, if a man builds on his own land with the materials of another, the owner of the soil becomes in law, the owner also of the building. Similarly, if trees were planted or seeds sown in the land of another, the owner of the soil became the owner also of the trees, plants or the seeds as soon as they had taken root (see Broom’s Legal Maxims 9th Edition, pp. 264-265). Of course, this general rule of law is subject to any contract entered into by the parties and also to the doctrine and rules of equity. Apart from these exceptions which are not relevant to the case in hand, we are not aware of any general rule of law, and the learned trial Judge did not refer to any, which says that the reverse, except as defined in specified statutes, is possible and that a building could therefore, for all purposes, include land on which it is built.” Per FATAYI-WILLIAMS, J.S.C.

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I also join my learned brother to affirm the trial Courts holding that whatever is on Plot 172, the buildings erected by the Appellant without the knowledge of the title holder, the 1st Respondent, forms part of the land. The maxim quid quid plantatur solo solo cedit like others have a few exceptions which are not applicable in this case.
I also dismiss the Appeal for lacking in merit and I abide by the other Orders made in the leading Judgment.

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Appearances:

Dr Hassan M. Liman SAN, with him, Y.D. Dangana, Esq., Amanzi F. Amanzi, Esq., Idris Musatalle, Esq. and A. Dauda Sani, Esq. – for Appellant For Appellant(s)

Rotimi Olujide, Esq. – for 1st Respondent
Frank Molokwu, Esq. – for 2nd Respondent
Ayotunde Ogunleye, Esq. – for 3rd Respondent
Mohammed Ilyasu, Esq., with him, Baba Dala Fika, Esq. – for 4th to 7th Respondents For Respondent(s)

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