MOHAMMED & ANOR v. SUCCESS & ORS
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, March 23, 2020
Before Our Lordships:
Abdu Aboki Justice of the Court of Appeal
Emmanuel Akomaye Agim Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
1. HAJIA ZAINAB WAZIRI K. MOHAMMED 2. AMINU WAZIRI K. MOHAMMED (FOR THEMSELVES AND AS THE ADMINISTRATORS OF THE ESTATE OF ALHAJI WAZIRI MOHAMMED) APPELANT(S)
1. CHIEF A.O SUCCESS 2. HON. MINISTER, FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): By way of an Originating Summons filed on the 30th of May, 2011, the 1st Respondent as Applicant at the High Court of the Federal Capital Territory, holden at Abuja; claimed against the 2nd and 3rd Respondents (as Respondents), the following reliefs:
1. A DECLARATION that the Respondents cannot take possession of the title documents collected from the Applicant compulsorily after the Applicant was not indicted in the report of committee on Land Records and Allocation set up by the Respondents in 2002 contrary to applicable laws or Order of Court.
2. A DECLARATION that the seizure of the title documents collected from the Applicant by the Respondent, even after the Applicant was not indicted in any war by the committee on Land Reports and Allocations set up by the Respondents in 2002, wrongful, unlawful, unconstitutional, null and void.
3. AN ORDER directing the Respondents to release forthwith the title documents contained in the list of plots collected from the Applicant on the 10th April, 2002, which document is attached as Exhibit “B” before this Honourable Court.
- AN ORDER OF INJUNCTION retraining the Respondents not to revoke the titles of any of the 92 Plots, subject matter of this suit, or punish or penalize the Plaintiff and his clients in any way or impose any fine whatsoever on them for the delay or recertification or development of any of the 92 Plots concerned.
5. AN ORDER directing the Respondents jointly and severally to pay the sum of Ten Million Naira as damages in favour of the Applicant for the undeserved embarrassment, inconveniences and damage that has been done to the professional images and/or reputation of the Applicant as an established real property developer since the unlawful seizure by the Respondents and the infringement of the Applicant’s constitutionally guaranteed rights against the unlawful seizure of the property.
6. Cost of this action.
AND FOR SUCH FURTHER or other orders as this Honourable Court may consider just and appropriate to make in the circumstances of this case.
In support of the application, the 1st Respondent deposed to a sixteen paragraph affidavit to which was annexed Exhibits A & B. He also filed his written address in support. As can be gleaned
from paragraphs 2 to 13 of the affidavit in support, the 1st Respondent is a real property developer, who at the time of the action, was in one way or another, managing 92 various plots of land within the FCT for and on behalf of his clients. According to the 1st Respondent, he received an invitation from the 2nd and 3rd Respondents to attend an interview with the FCT Committee on Land Records and Allocations to clarify some land related matters in the FCT. Consequent upon the invitation, he requested for and received the original title documents from his clients and submitted same to the aforesaid Committee, as directed. After the investigation, neither the 1st Respondent, nor any of the owners of the properties handled by the 1st Respondent were indicted for forgery; and in spite of the aforesaid, the 2nd and 3rd Respondents refused to return the original title documents to the 1st Respondent, hence the suit at the Trial Court.
In opposition to the application, the 2nd and 3rd Respondents filed a counter affidavit of thirteen paragraphs, deposed to by one Ogah Agnes, an Assistant Chief Lands Officer, in the Lands Department, F.C.D.A. A written address
was also filed, in support. Their story is that sometime in 1999, the FCTA observed various falsifications, forgeries, alterations and faking of land title documents in the FCT, which led the FCTA to set up a Committee on land records and allocations in 2002 with a mandate to cause an inquiry into the authenticity or otherwise and origin of certain land title documents. According to them, it was found in the course of the interview that the 1st Respondent among other things, sold and dealt on certain land title documents not allocated by the 2nd Respondent.
At the hearing of the suit, the processes were adopted and relied on and in its judgment delivered on the 31st of March, 2012, the Trial Court entered judgment for the 1st Respondent, in the following terms:
1. The Respondents cannot take possession of the title documents collected from the Applicant compulsorily, after the Applicant was not indicted in the Report of the Committee on Land Records and Allocations set up by the Respondents in 2002, contrary to applicable laws.
2. The seizure of the title documents collected from the Applicant by the Respondent even after the Applicant was not
indicted in any way by the Committee on Land Records and Allocations set up by the Respondents in 2002, is wrongful, unlawful, unconstitutional, null and void
3. The Respondents are hereby ordered to release forthwith, the title documents contained in the List of Plots collected from the Applicant on the 10th April, 2002 as Exhibit B before this Court.
4. The sum of N500, 000.00 (Five Hundred Thousand Naira), only, is awarded in favour of the Applicant against the Respondents jointly and severally as damages.
By an order of this Court made on the 9th of April 2014, the Appellants herein, were granted leave to sock leave to appeal as a party interested, against this judgment of the Trial Court and were given 3 days from 9th April, 2014 to file their notice of appeal consequent upon which a Notice of Appeal was filed on the 9th of April 2014, upon Four Grounds (See pages 118-122 of the Record of Appeal).
In line with the Rules and practice of this Court, parties filed and exchanged briefs of arguments, which they adopted and relied on, in support of their respective positions, when the appeal came up for hearing on the 28th of January, 2020.
The Appellants’ brief was dated and filed on the 7th of July 2014, but deemed properly filed on the 26th of January 2017. In the brief, settled by Tairu Adebayo Esq., the following issues were distilled for determination.
1. Whether the Applicant’s case at the lower Court was properly constituted in terms of necessary parties and whether failure to join necessary parties will not rob the Court of jurisdiction especially the denial of fair hearing to the Appellants, whose interest was being determined without their presence?
2. Considering the nature of the Applicant’s claim and the totality of evidence presented before the trial Court, whether the learned trial Judge was right in granting the claim of the Applicant as constituted in its entirety, especially the mode of commencement?
For the 1st Respondent, a brief of argument dated the 15th of April, 2016, was filed on the same date. B.J. Akomolafe Esq., who settled the briefs, posed three questions, for this Court’s determination, to wit:
1. Whether or not the necessary parties were before the trial Court, considering the nature of the 1st Respondent’s claim thereto?
- Whether or not the facts of this case are cognizable under the Fundamental Enforcement Procedure Rules, 2009 to justify the trial Court assuming jurisdiction?
3. Whether or not the 1st Respondent obtained the judgment in this appeal at the lower Court through deceit and misrepresentation?
No brief of argument was filed on behalf of the 2nd and 3rd Respondents.
The 1st Respondent filed a Notice of Preliminary Objection to the hearing of this appeal on the 15th of June, 2016 which he argued at pages 11 – 14 of the 1st Respondent’s brief. The grounds of the Preliminary Objection are as follows:
1. That the Appellants lack the requisite locus standi to appeal against the judgment of the High Court of the Federal Capital Territory, delivered by Hon. Justice Salisu Garb on the 31st of May 2012, in Suit No: FCT/HC/CV/M/6069/11.
2. That the Ground 3 of the Appellants’ Notice of Appeal is inconsistent with the particulars of error;
3. That the Ground 4 of the Notice of Appeal did not emanate from the ratio decidendi of the judgment of the Trial Court;
4. That the Appellants’ Notice of Appeal as a whole is incompetent.
Let me determine this preliminary objection before I delved into the merit of this appeal.
In arguing the first ground of the objection, it is submitted for the 1st Respondent that the Appellants lack the locus standi to appeal this appeal.
According to learned counsel for the 1st Respondent, Plot 2491, Asokoro District, Abuja, which is the Appellants’ basis for this appeal, is not covered or mentioned in the Letters of Administration relied upon by the Appellants. Placing reliance on ORDER 48 RULES 11 & 29(2) OF THE HIGH COURT OF THE FCT (CIVIL PROCEDURE) RULES, 2004, learned counsel for the 1st Respondent stated that it is when the property claimed by the Appellants is captured on the Letters of Administration, that the Appellants would have the requisite locus standi to canvass their interest in Plot 2491, Asokoro District, Abuja, as Administrators.
He further contended for the 1st Respondent that the Appellants are mere Administrators of the Estate of Alhaji Waziri Mohammed, and not the parties to the suit for the simple reason that the Estate of Alhaji Waziri Mohammed is a juristic personality. According to him, the
proper Appellants in the appeal should be the Estate of Alhaji Waziri Mohammed, while the Appellants herein could describe their status as suing through the name of the Estate of Alhaji Waziri Mohammed, if they so wish. He called in aid, the case of SOFOLAHAN v. FOWLER (2002) 14 NWLR (PT 788) 664.
This urged this Court to dismiss this appeal on this head of objection.
On the second head of objection, it is contended for the 1st Respondent that there is nothing in the particulars of ground 3 of the Notice of Appeal, to indicate that the said ground is challenging the jurisdiction of the Trial Court, or this Court. Learned counsel for the 1st Respondent commended this Court to the case of C.R.B.R.D.A. v. SULE (2001) 6 NWLR (PT 708) 194, and submitted that where particulars of a ground of appeal were unrelated to the ground, such particulars are incompetent and ought to be struck out.
This Court is urged to strike out the said particulars of ground 3 and hold that ground 3 is incompetent.
On third ground of objection, it is the view of learned counsel for the 1st Respondent that the issues of deceit and misrepresentation never arose at any
time in the judgment of the trial Court, and are therefore fresh issues for which leave ought to have been sought and obtained, and where such is not obtained, any issue arising therefrom will be regarded as incompetent and struck out. The case of AJA v. OKORO (1991) 7 NWLR (PT 203) 260, was relied on.
Learned counsel for the 1st Respondent further posited that the ground 4 of the notice of appeal having not related to the decision appeal against, is incompetent. Reliance was placed on:
M.B.N. PLC v. NWOBODO (2005) 14 NWLR (PT 945) 379;
L.A.C v. A.A.N LTD (2006) 2 NWLR (PT 963) 49.
This Court is urged to hold that ground 4 of the notice of appeal is incompetent.
Flowing from the above, it is the view of learned counsel for the 1st Respondent that the entire Notice of Appeal is incompetent, and should be struck out and/or dismissed. The case of EKWULUGO v. A.C.B. NIG LTD (2006) 6 NWLR (PT 975) 30, was relied on.
In response, it is submitted for the Appellants that the Appellants possess the requisite locus standi to initiate this appeal. First, it is contended for the Appellants that the property referred to as Plot 2491 does not
bear specifically the name of the Deceased., Alhaji Waziri Mohammed, because at the time of the application for the issuance of the Letters of Administration, the process of change of the name of the Original Allottee, Mohammed Ali, to that of the deceased, Alhaji Waziri Mohammed, was ongoing and as at the time of the grant of the Letters of Administration, the errors had not yet been rectified. This Court’s attention was invited to page 130 of the Record.
Secondly, it is argued for the Appellants that the case of SOFOLAHAN v. FOWLER, supra, relied upon by the 1st Respondent, is distinguishable from the instant case and does not aid the case of the 1st Respondent. According to learned counsel for the Appellants, in the SOFOLAHAN case, it was held that the name of the infant should appear as the Plaintiff, with an indication that he sued by his best friend. He argued that the facts in the case of SOFOLAHAN supra, are different from the instant appeal, wherein the Appellants have sued as empowered by Order 10 Rule 15(1) of the FCT High Court Rules, in their representative capacity.
This Court is therefore urged to discountenance this head of objection,
and hold that the Appellants had the requisite locus standi to initiate the appeal.
It is the further submission of the Appellants that the particulars of ground 3 of the notice of appeal are consistent with the said ground. Reliance was placed on:
IWUOHA & ORS v. NIGERIAN POSTAL SERVICES LTD (2003) 14 NSCQR 253; MBA v. AGU (1999) 12 NWLR (PT 629) 1.
This Court is urged to hold that the particulars of ground 3 of the notice of appeal explain and support the said ground and naturally flow from them.
In response to the third ground of the preliminary objection, it is argued for the Appellants that ground 4 of the notice of appeal emanates from the judgment of the Trial Court. This Court was referred to page 114 of the Record, as well as these cases:
AKPAN v. BOB (2010) 17 NWLR (PT 1223) 421; BANK OF THE NORTH LTD v. BELLO (2000) 7 NWLR (PT 664) 244; YAKEEN A. ODONIGI v. OYELEKE (2001) 6 NWLR (PT 708) 12.
This Court is urged to so hold, and overrule the preliminary objection, as lacking in merit.
The law is settled that the purpose of preliminary objection is to challenge the competence of the Court to hear and determine an
appeal and not to challenge particular grounds of appeal or issues. In ASIKPO & ANOR vs. GEORGE & ANOR (2013) LPELR-22031 (CA) pg.13-14, this Court held as follows:
“An objection which does not challenge the competence of an appeal but only challenge one or some of the grounds or issue raised in the appeal, does not challenge the hearing of the appeal as provided by the provisions but only attacks or complaints about some grounds or issues which even if successful, does not terminate the proceedings or hearing the appeal. Such an objection does not fall within the provisions of Order 10 Rule 1 above and so are not applicable to it. It is an objection a party (Respondent) is entitled to raise at the hearing in his brief of argument as a point of law to be considered in the determination of the appeal… ”
Locus Standi is a condition precedent to instituting an action before a Court of law. It is a legal voice with which the Plaintiff amplifies his legal rights over and above those of ordinary men. The issue of locus standi constitutes a condition precedent to the institution of any action before a Court of Law. For an action to be
maintainable, the person instituting it must have legal capacity, otherwise the Court is robbed of necessary jurisdiction to entertain it.
Whenever the issue of locus standi is raised, the Court before whom the action is pending is under a duty to determine it first before going into the merit of the action itself. See also the case of A.G FEDERATION VS ABUBAKAR (2007) 10 NWLR (Pt.1041) 1 at 75; ADEWUNMI VS OGEBELLE (1983) 4 WCLR (Vol. 4) 662 at 677.
Judicial parameters of locus standi had been set in the case of ABACHA & ANOR VS AG FEDERATION & ORS. (2013) LPELR-21479 where the Court pronounced on the Nature of locus standi citing the case of NYAME VS FEDERAL REPUBLIC OF NIGERIA (2010) 42 NSCQR 54 and held that:
“The term locus standi entails the legal capacity of instituting, initiating or Commencement of an action in a competent Court of Law or Tribunal without any inhibition, obstruction or hindrance from anybody or person whatsoever including the provision of any existing law. The fundamental aspect of locus standi is that it focuses on the party seeking to get its complaint heard before the Court. It is settled law that the
Plaintiff Will have locus standi in a matter only if he has a special right or alternatively if he can show that he has sufficient or special interest in the performance of the duty sought to be enforced or where the interest is adversely affected… ”
The position of the law is that a person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his rights and obligations have been or are in danger of being infringed. In other words, the plaintiffs’ statement of claim must disclose sufficient legal interest and the plaintiff must show how such interest arose in the subject matter. SeeFAWEHINMI V. AKILU (1987) 4 NWLR (PT.67) 797. This is sine qua non to the exercise of jurisdiction by the trial Court to hear the matter on the merit. See AROWOLO VS. AKAIYEJO (2012) 4 NWLR (PT. 268); PAM V. MOHAMMED (2008) VOL. 40 WRN P. 69.
In the instant appeal, the appellant has a duty not only to show that he has sufficient interest in the action but more importantly to show that his legal rights or obligations have been or are in danger of being infringed.
The story of the Appellants is that they were not made
parties nor served with the originating processes as well as other processes which led to the judgment of the Trial Court herein appealed against. According to them, they had no notice of the pendency of the suit at the Trial Court and were not heard at the trial before the judgment was delivered. They posited that they had a subsisting interest in Plot 2491, which was listed as No 85 in the list of plots referred to in Exhibit B before the Trial Court and that they had at all material times during the commencement, continuation and conclusion of the suit at the Trial Court, been and have remained in occupation and exercising possessory rights over the said Plot 2491, since 1998. Also I have earlier stated in this judgment that by an order of this Court made on the 9th of April 2014, the Appellants herein, were granted leave to seek leave to appeal as a party interested, against the judgment of the Trial Court.
In determining the issue of locus standi of the Appellants raised in this Preliminary Objection, within the above parameters set out in all the cases cited, the depositions of the Appellants as put forward in the affidavit in support of their
appeal as a party interested, as well as all the annexures thereto; would be the primary concern and relevant materials. It is therefore good law which I accept that the depositions of the Appellants would be the determinant of the issues and the legal duty is on the Appellants to show and satisfy this Court that the depositions disclose a reasonable cause of action and that the Appellants have the requisite capacity or standing to institute the action in this appeal. For this purpose, it is expedient to set out in details the relevant part or paragraphs of the affidavit in support of the motion for enlargement of time to appeal as a party interested. They are Paragraphs 5 – 16, at pages 129 – 130 of the Record:
5. My late husband, Alhaji Waziri Kyari Mohammed bought the said Plot now known as Plot No. 2491 Asokoro extension, Abuja from one Mohammed Ali of Alo. 7A Sultan Close, Kaduna to whom the plot was originally allocated vide a letter of avocation dated 24th July, 1998. Attached and marked “Exhibit ZWM-3” is a copy of the said letter of allocation.
6. In evidence of the transaction between my late husband and the said Mohammed Ali, an
agreement dated 16th December, 1998 was executed between them. Attached and marked “Exhibit ZWM-4” is a copy of the said agreement.
7. Consequent upon the above, my late husband was put in possession of the said property and exercised proprietary right until his demise on 22nd October, 2005, while his estate has remained in possession till the date thereof.
8. In the year 2002, a new offer letter dated 30th August, 2002 was issued in the name of my late husband’s predecessor-in-title, this time around describing the plot as Plot No.2491 Asokoro (A4) District. The new offer letter has the same File No., with the earlier offer, backdated the new date of issue to the date of the initial offer. Attached and marked “Exhibit ZWM-5” is a copy of the said letter.
9. Upon enquiry, I was informed by the officers of the 1st and 2nd Respondents that the plot number changed due to re-numbering exercise that were carried out with regards to Asokoro extension plots.
10. I know as a fact that whether with the old No. 54 or new No.2491, the plot has always remained the same physically on ground, since we took over possession.
11. I also know as a fact that
during the re-certification exercise carried out by the 1st and 2nd Respondents, my late husband applied to regularize his title by completing the prescribed form, paid the requisite fees and his image was captured in the database of the 1st and 2nd Respondents,
12. My late husband died on 22nd October, 2005 in the Bellview Airline that crashed somewhere in Ogun State. As one of the Administrators of his estate, I took over the processing of the title documents to the plot, and on the 4th September, 2008, I received a bill for the payment of statutory fees due on the plot. Attached and marked “Exhibit ZWM-5 and 54” is a copy each of the said bill and payment receipt.
13. Upon collection of the Certificate of Occupancy No. 1524w-173eO-52d5r-109fa-10, dated 26th May 2006 and registered as No, 16726 at page 16726 in Volume 83, I discovered that it was only the picture of my late husband, Alhaji Waziri Kyari Mohammed that was on the certificate, while all other information are still that of his predecessor-in-title, Mohammed Ali. I immediately complained to the 2nd and 3rd Respondents and verily believe same is being rectified. The predecessor-in-title
however executed a Deed of Assignment in respect of the subject property. Attached and marked “Exhibit ZWM-6” is a copy of the certificate.
14. That the Applicant has interest in Plot No.2491 over which a Certificate of Occupancy No. 1524w-173eO-52d5r-109fa-10, dated 26th May, 2005 and registered as No. 16726 at page 16726 in Volume 83 has been issued in the name of the predecessor in-title.
15. That I know as a fact that throughout the period of the proceedings before the lower Court lasted, the Applicant was not sewed with the originating processes or given any notice of hearing over the subject property.
16. That contrary to the averment in Paragraph 3 of the 3rd Respondent’s deposition contained on page 3 of the Record of Appeal in Appeal No. CA/A/561/2012 before this Honourable Court to the effect that the 3rd Respondent manages the properties listed in Exhibit B before the lower Court, (including the Applicants’ plot), I know as a fact that the Applicants did not appoint the 3rd Respondent nor any other person as a manager to deal with the property known as Pot 2491 Asokoro Cadastral Zone A04, listed as No 85 in Exhibit B before the
Court below. Attached and marked “Exhibit ZWM-7” is a copy of the deposition.
The record did not show that the 1st respondent filed any counter affidavit in opposition to the appellants’ motion filed on 17/3/2014.
A calm and dispassionate reading of the paragraphs of the affidavit in support of the motion for enlargement of time to appeal as a patty interested as a whole would reveal that the claim of the Appellants was based on the fact that they have an interest in Plot No.2491 Asokoro District, over which a Certificate of Occupancy No. 1524w-173e0-52d5r-109fa-10, dated 26th May, 2006 and registered as No. 16726 at page 16726 in Volume 83 has been issued in the name of the predecessor-in-title, listed as No 85 in Exhibit B, before the Trial Court, and for which the 1st Respondent purports to be in charge of.
I have meticulously perused the documents relied upon by the Appellants for which the Letters of Administration were issued to them, at pages 134 – 151 of the Record. At page 138 is a sale agreement between Mallam Mohammed Ali, and the Alhaji Waziri K. Mohammed over Plot 54 Asokoro Extension Abuja, measuring 1.65m2. (Exhibit ZWM -4)
Attached to the Sale Agreement is a statutory right of occupancy in respect of the same Plot 54 Asokoro Extension, Abuja, measuring 1.650m2. (Exhibit ZWM – 3), made out to Mallam Mohammed Ali, of 7A Sultan Close, Kaduna. The contention of the Appellants herein is that the said Plot 54 Asokoro Extension is the same as Plot 2491, Asokoro District A04, Abuja. What is more, the Appellants as Administrators of the Estate of Alhaji Waziri Mohammed exhibited Letters of Administration, issued by the Probate Division of the High Court of Justice of the Federal Capital Territory dated 25th May, 2006. There is no doubt, as borne out of the Record before this Court, that nothing of Plot 2491 Asokoro District Abuja was mentioned in the Letter of Administration. (See pages 134 through to 136 of the Record).
The Appellants in answer to this fact, deposed at paragraph 13 thus:
“Upon collection of the Certificate of Occupancy No. 1524w-173eO-52d5r-109fa-10, dated 26th May, 2005 and registered as No. 16726 at page 16726 in Volume 83, 1 discovered that it was only the picture of my late husband, Alhaji Waziri Kyari Mohammed that was on the certificate, while
all other information are still that of his predecessor-in-title, Mohammed Ali. I immediately complained to the 2nd and 3rd Respondents and verily believe same is being rectified, The predecessor-in-title however executed a Deed of Assignment in respect of the subject property. Attached and marked “Exhibit ZWM-6″ is a copy of the certificate.”
This fact has not been denied by the 1st Respondent, by way of a counter affidavit. I am thus constrained to believe as deposed to by the Appellants, that this is an administrative error on the part of the 2nd and 3rd Respondents, for which the Appellants cannot be held responsible.
It is my view that, the Appellant has shown to the satisfaction of this Court, sufficient interest in this matter and how the decision of the trial, infringe on their rights. As afore stated, locus standi of a plaintiff to institute an action is a condition precedent to the Court’s jurisdiction. It is inextricably linked to the exercise of jurisdiction by a Court. In other words, where the party initiating an action lacks locus standi, the Court is robbed of jurisdiction to hear that matter.
The 1st respondent’s contention that
Plot 2491, Asokoro District, Abuja, which is the Appellants’ basis for this appeal, is not covered or mentioned in the Letters of Administration relied upon by the Appellants in my view is an afterthought, as I have earlier stated the 1st respondent has filed any counter affidavit to oppose the facts deposed to in applicants’ application to appeal as interested parties.
On the 1st respondent’s contention that that there is nothing in the particulars of ground 3 of the Notice of Appeal, to indicate that the said ground is challenging the jurisdiction of the Trial Court, or this Court. It is clear that a ground of appeal alleging an error in law or misdirection must contain particulars. This is to enable the Respondent meet the case of the Appellant and the Court to properly consider and determine the error or misdirection, which is the subject of the complaint.
However, more recent authorities tend to whittle down that requirement by qualifying it that if such a ground of appeal is clear and succinct then lack of particulars can be overlooked, see BEST (NIG.) LTD. VS. BLACKWOOD HODGE (NIG.) LTD. (2011) 5 NWLR (PT. 1239) 95, where the Supreme Court
“Where the complaint on a ground of law in a ground of appeal is clear and succinct, particulars of error in law are unnecessary.”
The question that arises here is whether ground three is that clear and succinct so as to dispense with the need for particulars.
“The learned trial judge erred in law by assuming jurisdiction over the suit when it was not properly instituted.”
My candid opinion is that ground 3 above is not vague, ambiguous, cloudy and without clear direction as to the complaint. This in my view is one case when particulars of error are not necessary.
On the 1st respondent’s third ground of objection, the appellants alleged in ground four of the notice of appeal thus;
“The judgment of the trial Court in suit FCT/M/6069/2011 dated and given on 31st day of May, 2012 in favour of Chief A.O. Success (1st respondent herein), could only have been obtained by deceit and misrepresentation and therefore ought, in the interest of justice to be set aside in so far as it effects plot 2491 (listed as number 85 in Exhibit B before the lower Court) and covered by a certificate of occupancy
No. 1524w-173eO-52d5r109fa-10 dated 26th May, 2005 and registered as No. 16726 at page 16726 at page 16726 in Volume 83 at Lands Registry of the 1st and 2nd appellants.
The 1st respondent contended that the issues of deceit and misrepresentation never arose at any time in the judgment of the trial Court, and are therefore fresh issues for which leave ought to have been sought and obtained, and where such is not obtained. This contention in my view is misconceived, there is nowhere the appellants alleged or argued that issues of deceit and misrepresentation arose in the judgment of the trial Court. The appellants’ ground 4 contrary to the 1st respondent’s contention is related to the decision appealed against.
In view of all the above, there is no merit in the 1st respondent preliminary objection, and it is hereby dismissed.
For the main appeal, the two issues formulated by the Appellant are adopted by me, and I am so guided. I will consider issue two first.
Considering the nature of the applicant’s claim, and the totality of evidence presented before the trial Court, whether the learned trial judge was right in granting the claim
of the applicant as constituted in its entirety especially the mode of commencement.
It is submitted for the Appellants that considering the claims of the 1st Respondent before the Trial Court, the mode of commencement cannot validly determine the case and relief of the Appellant especially given the facts produced by the Respondent before the Trial Court. The case of ODOEMELAM v. AMADIUME (2008) ALL FWLR (PT 405) 1760 was relied on.
Learned counsel for the Appellants argued that the claim of the 1st Respondent herein, before the Trial Court cannot be validly determined by affidavit evidence alone, and the Trial Court was wrong in determining the suit on affidavit evidence alone, under the fundamental Right Enforcement Rules. He maintained that declaratory orders are not granted as of course, unless the applicant has successfully adduced cogent and compelling evidence, to show that he is entitled to such a right, even when the adverse party does not object to the granting of same. It is his view that the 1st Respondent failed to produce such evidence and the Trial Court was wrong to have granted same to the 1st Respondent. Reliance was placed on the
case of ADEBIYI v. OKEBIORUN (2009) 15 NWLR (PT. 1165) 576.
This Court is urged to resolve this issue in favour of the Appellants.
In response to the above, it is submitted for the 1st Respondent that the facts of this case are cognizable under the Fundamental Rights Enforcement Procedure Rules. Learned counsel for the 1st Respondent postulated that it is an established practice that where any right of a citizen is infringed upon, as in the case of the 1st Respondent at the Trial Court, the party ought to seek redress in the Court of law. Reliance was placed on these authorities:
SECTION 44(1) OF THE 1999 CONSTITUTION; ARTICLE 14 OF THE ACHPR;
ORDER 1 RULE 2(3) OF THE HIGH COURT OF THE F.C.T. (CIVIL PROCEDURE) RULES 2004;
ORDER II RULE 2 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009;
ABDULHAMID v. AKAR (2006) 12 NWLR (PT. 996) 127; PDP v. INEC (1999) 11 NWLR (PT 626) 200.
He contended that there was no deceit or misrepresentation whatsoever, in the case of the 1st Respondent at the Trial Court.
According to learned counsel for the 1st Respondent, there was no relief claiming ownership of the plots of land.
Calling in aid, Order 23 Rule 5(1) of the High Court of the F.C.T. (Civil Procedure) Rules 2004, he contended that a party who relies on pleading a misrepresentation, fraud, breach of trust, willful default, or undue influence particulars (with dates and items, if necessary), shall give and supply particulars of those serious allegations to the Court and the Appellants herein have failed to do this.
This Court is therefore urged to resolve this issue in favour of the 1st Respondent.
In conclusion, this Court is urged to resolve the issues raised in this appeal against the Appellants, dismiss the appeal and affirm the decision of the Trial Court.
It is contended for the Appellants in reply to the above, that the law is settled that where there are substantial disputes facts, the best mode of commencement should be by way of writ of summons, and not affidavit evidence. Learned counsel for the Appellants argued that in the case leading to this appeal, the facts as to the seizure and non-seizure of the documents from the 1st Respondent by the 2nd and 3rd Respondent was in dispute and the Trial Court couldn’t have decided that dispute on mere
affidavit evidence without subjecting those facts through the rigors of cross examination.
In conclusion, this Court is urged to resolve the two issues in favour of the Appellants, allow the appeal and set aside the judgment of the Trial Court.
The crux of this issue is the mode of commencement of this suit at the Trial Court. In considering whether this suit was properly commenced, I shall have recourse to the provisions of Order 1 Rule 2(1) Of the High Court of the FCT (Civil Procedure) Rules, 2004, which provides as follows:
“Proceedings to commence by writ.
2. (1) Proceedings shall commence by writ, where a claim is –
(a) Made by a plaintiff or any relief for any tort or other civil wrong;
(b) Made by a plaintiff based on allegation of fraud;
(c) made by a plaintiff for damages for breach of duty whether the duty exists by virtue of a contract or a provision of law or independently of a contract or provision or death of a person or in respect of personal injuries to a person or damage to propeny;
(d) Made by an interested person, for a declaration.”
The reliefs sought by the 1st Respondent herein have been
reproduced earlier above. It is evident that the claims rests mainly on torts, damages, declarations and injunctions.
It is very rudimentary that a party seeking such orders must succeed on the strength of his own case, and not rely on the weakness of the case of his adversary, and where he fails to discharge the onus, judgment must be for the other party. Declaratory reliefs cannot be granted even on admissions by the other party. These firmly established principles of law were very recently restated by this Court in DIKE VS ATTORNEY GENERAL, ANAMBRA STATE (2019) LPELR 46497(CA) the Court held thus;
“Further, most of the reliefs sought are declaratory in nature. Even though the argument is that the 1st and 2nd Respondents did not file counter affidavits and must be deemed to have admitted the averments in the Applicants affidavits, it is trite that declaratory reliefs cannot be granted merely on admissions or default of defence. Evidence must be led to establish the claim.”
See also KUMO v. BARAMBU & ORS (2019) LPELR 40769 (CA).
In BELLO V. EWEKA (1981) 1 SC 101 AT 102, the apex Court held as follows:
“The law is that a declaration
of title or right cannot legally be based on admission in the pleading of a defendant. This Court, while appreciating the general principle of law that what is admitted needs no proof, stated that the general principle does not apply in a claim for declaration of title or righ., It is true as was contended before us by the appellant’s Counsel, that the rules of Court and evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the defendant, that he is entitled. The necessity for this arises from the fact that the Court has discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence.”
From the totality of the authorities referred to above, it would follow that in a claim for declaration of title or right, as in the instant case, the proper mode of commencement of such an action would be vide a writ of summons, and not
originating summons, as the 1st Respondent herein has done.
On whether the action falls under the Fundamental Rights Enforcement Rules 2009, the dictum of the apex Court in the case of TUKUR v. THE GOVERNMENT OF TARABA STATE & ORS (1997) NWLR (PT. 510) 549 @574, is most instructive. The apex Court held inter alia, as follows:
“When an application is brought under the Fundamental Rights (Enforcement Procedure) Rules, a condition precedent to the exercise of the Courts jurisdiction is that the enforcement of fundamental right or securing of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of Fundamental right or securing the enforcement thereof should from the applicants claim as presented be the principal or fundamental claim and not an accessory claim. Where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly exercised as it will be incompetent.”
The primary complaint of the 1st Respondent at the Trial Court is the alleged seizure of the title documents collected from him by the 2nd and 3rd Respondents.
This in my view, does not constitute fundamental right breaches, and therefore the proceedings by way of the Fundamental Rights (Enforcement Procedure) Rules are inappropriate in the circumstance. The 1st Respondent herein ought to have come by way of a writ of summons, not only in respect of Reliefs 1 and 2 but also in respect of the other Reliefs as well.
This matter was taken to the trial Court on a wrong vehicle. It cannot be questioned that the alleged seizure of the title documents by the 2nd and 3rd Respondents, is not an issue cognizable under the Fundamental Rights pursuant to the provisions of Chapter 4 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
Flowing from the above, I hold the view that the Trial Court wrongly assumed jurisdiction to entertain the 1st Respondent’s claims. I therefore resolve this issue in favour of the Appellants.
Having held that the Trial Court had no jurisdiction to entertain the suit of the 1st Respondent, it will become an academic exercise for me to consider the other issue in this appeal.
In the final analysis, this appeal succeeds and it is hereby allowed.
The decision of the trial Court is hereby set aside and in its place, the 1st respondent’s Suit No: FCT/HC/CV/6069/2011 is hereby struck out.
There shall be shall be no order
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Abdu Aboki, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
EMMANUEL AKOMAYE AGIM, J.C.A. (DISSENTING): I had a preview of the judgment delivered by my Learned brother Lord Justice Abdu Aboki, PJCA, with the greatest respect to his Lordship, I view this matter differently.
The appellants in their brief framed two issues for determination as follows-
i. Whether Applicant’s case at the lower Court was properly constituted in terms of necessary parties, and whether failure to join necessary parties will not rob the Court of jurisdiction especially the denial of fair hearing to the appellants whose interest was being determined without their presence? (Grounds 1
& 2 of the Notice of Appeal)
ii. Considering the nature of the Applicant’s claim and the totality of evidence presented before the trial Court, whether the learned trial judge was right in granting the claim of the Applicant as constituted in its entirety especially the mode of commencement? (Grounds 3 and 4 of the Notice of Appeal)
The 1st respondent framed three issues for determination as follows –
a. Whether or not the necessary parties were before the trial Court considering the nature of the 1st Respondent’s claim thereto. (Grounds 1 & 2 of the Notice of Appeal)
b. Whether or not the facts of this case are cognizable under Fundamental Rights Enforcement Procedure Rules, 2009 to justify the trial Court assuming jurisdiction (Ground 3)
c. Whether or not the 1st Respondent obtained the judgment in this appeal at the lower Court through deceit and misrepresentation.
I prefer to determine this appeal on the basis of the issues raised for determination in the appellant’s brief.
Let me start with issue No. 1 which asks “Whether Applicant’s case at the lower Court was properly constituted in terms of necessary parties,
and whether failure to join necessary parties will not rob the Court of jurisdiction especially the denial of fair hearing to the appellants whose interest was being determined without their presence?”
I have considered the arguments in the respective briefs in this appeal on this issue.
The issue of joinder of the appellants herein or any other person as a party to the suit was never raised at the trial Court and so was not pronounced upon by the trial Court. This issue is now being raised for the first time in this appeal. There is nothing in the record of this appeal that show that the leave of Court was first sought for and obtained to raise this issue as a fresh issue in this appeal. Without such leave having been first obtained to raise the issue of non joinder of the appellants or any other person as a party to the suit, as a fresh issue in this appeal, it cannot be validly and competently raised and argued. See Gabriel v State (1989) All NLR (Pt. 122) 457(SC) and Oseni V Bajulu & Ors (2009) LPELR-2796 (SC).
Although the terms in which issue No. 1 is couched, gives the impression that it is one of jurisdiction, it is not. It is a
procedural issue that cannot defeat the jurisdiction of the Court to hear and determine the case and give judgment in respect of the named parties according to their respective rights and liabilities. The non joinder and misjoinder of parties and their legal effect is provided for in Order 10 of the High Court of FCT (Civil Procedure) Rules 2004 (The then extant Rules, now replaced by Order 13 of the High Court of FCT (Civil Procedure Rules 2018 which commenced from 15-2-2018). It is clear from the express wordings of Order 10 Rules 2, 4, 5(1) and (5) and (9) of the 2004 Rules that issues of nonjoinder or misjoinder should be raised during trial proceedings and cannot vitiate the proceedings or affect the jurisdiction of the trial Court to entertain or continue with the proceedings. The exact text of Order 10 Rules 2, 4, 5(1) and (5) and 10(1) and (2) read thusly-
“2. Where an action commences in the name of a wrong person as plaintiff, or where is doubtful that it commenced in the name of the right plaintiff, a Court or Judge in chambers, if satisfied that it commenced through a bona fide mistake, and that it is necessary for the determination of the
real matter in dispute so to do, may order any other person to be substituted or added as plaintiff upon such terms as may be just.
4. Where a person has been improperly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counter-claim or set-off, the defendant may establish his set-off or counterclaim against the other parties other than the co-plaintiff so joined, despite the mis-joinder.
5(1) Where it appear to a Court, at or before hearing, that all the persons possibly interested in the suit have not been made parties, the Court may adjourn, and direct that those persons be made either plaintiffs or defendants in, the suit.
5. A Court may, at any stage of the proceedings and on such just terms Order that the name of any party improperly joined, be struck out, whether as plaintiffs or defendants.
10(1) Any two or more persons likely to benefit or be liable, as partners, may sue or be sued in the name of the partnership when the cause of action arose.
10(2) A party to an action may apply to the Court for a statement of the names and addresses of the persons who were partners when a action arose, to be furnished
in a manner directed by the Court, and verified on oath.”
The Supreme Court in Okoye v. Nigerian Cost & Furniture Co. Ltd & Ors (1991) 7 SC (Pt. 111) 33 held that “in my view failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness which may result in setting aside the judgment on appeal. Setting aside a judgment or making an order striking out the action or remitting the action for a retrial in such circumstance will not be for lack of jurisdiction or on the basis of the judgment being a nullity. The trial Court itself is incompetent to review the judgment; more so another Court of co-ordinate jurisdiction…that failure to join as a party a person who ought to have been joined will not render the proceedings a nullity on ground of lack or jurisdiction.”
Being a procedural issue, that was not raised at the trial Court, it cannot be competently raised in this appeal as fresh issue without the leave of Court first obtained to do so.
As it is grounds 1, 2 and 4 of this appeal that raised it
and this issue No. 1 that is derived from grounds 1 and 2 and the arguments thereunder are incompetent.
Having determined that issue No. 1 and the arguments thereunder are incompetent, no further need really exists for the consideration of the arguments thereunder. For completeness and whatever it is worth, let me still consider those arguments without prejudice to my earlier holding.
It must be borne in mind that a party who brings appeals against a subsisting judgment as a person interested, must argue the appeal on the basis of what is contained in the record of the trial proceedings and on the basis of the issues tried and determined at the trial Court and cannot on appeal open up new battle fronts by raising and arguing fresh issues without first obtaining the leave of Court to raise them as fresh issues in the appeal.
The case of the 1st respondent at the trial Court is that as an estate developer and manager of about 92 plots of land in the Federal Capital Territory belonging to several of his clients, he was custodying the respective plot title documents, that the 2nd and 3rd respondents herein by a letter of 8-4-2002 (Exhibit A) invited
him to attend an interview for verification of documents of title to the said plots, that when he attended the interview, the 2nd and 3rd respondents took the documents of title to the said plots for verification to ascertain the authenticity and regularity of the allocations, that the 2nd and 3rd respondents acknowledged the receipt of those title documents in writing by Exhibit B, the Committee that carried out the verification completed the verification and submitted a report of their findings in Exhibit C, that there was no adverse findings against any of the plots in Exhibit B, whose title documents were collected from the 1st respondent, that after the verification exercise and having found nothing wrong with the allocation and title to those plots, the 2nd and 3rd respondents failed and neglected to refund the documents of title they collected from the 1st respondent and have continued to detain them inspite of repeated demands from the 1st respondent that his clients have continued to mount pressure on him to return their title documents to them. So it is the refusal of the 2nd and 3rd respondent to return the documents they collected from him for
verification after no adverse findings were made against any of the titles that is the cause of action. The 1st respondent did not claim for a declaration of title to any of the plots whether for himself or on behalf of any person. He merely claimed for the return of the documents collected by the 2nd and 3rd respondents from him, which documents he was custodying on behalf of the owners of the title therein.
The nature of the case of the 1st respondent is clear from the reliefs he claimed for in the originating summons. The reliefs are as follows:-
1. A DECLARATION that the Respondents cannot take possession of the title documents collected from the Applicant compulsorily after the applicant was not indicated in the repott of the Committee on Land Records and Allocations set up by the Respondents in 2002 contrary to applicable laws or order of Court.
2. A DECLARATION that the seizure of the title documents collected from the Applicant by the Respondents even after the Applicant was not indicated in anyway by Committee on Land Records and Allocations set up by the Respondents in 2002 is wrongful, unlawful, unconstitutional, null and void.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
- AN ORDER directing the Respondents to release forthwith the title documents contained in the list of plots collected from the Applicant on the 10th April, 2002 which document is attached as Exhibit “B” before this Honourable Court.
4. AN ORDER OF INJUCTION restraining the Respondents not to revoke the titles of any of the 92 plots, the subject of this suit, or punish or penalise the Plaintiff and his clients in any way or impose any fine whatsoever on them for the delay of recertification or development of any of the 92 Plots concerned.
5. AN ORDER directing the Respondents jointly and severally to pay the sum of Ten Million Naira (N10, 000,000.00) as damages in favour of the Applicant for the underserved embarrassment inconvenience and damage that has been done to the professional image and or reputation of the Appellant as an established real property developer since the unlawful seizure by the Respondents and for the infringement of the Applicant’s constitutionally guaranteed rights against unlawful seizure of property.
It is glaring that the merit of the case brought by the 1st respondent can be effectually and completely determined as
constituted by the named parties, to wit, the 1st respondent who had lawful possession of the title documents and willingly delivered same to the 2nd and 3rd respondents for verification of their genuineness and the 2nd and 3rd respondents who having not found the documents to be forged or irregular and having found nothing adverse against the allocation of the plots therein, were legally bound to return the documents to the 1st respondent. For the purpose of determining this issue of the propriety of the 2nd and 3rd respondent’s refusal to return the documents of title they collected from the 1st respondents, it is the respondents herein that are the necessary parties. There is no doubt that his said clients also have a right to the reliefs claimed as the owners of the documents of title who gave him the documents to custody for them and therefore can be joined as plaintiffs in the suit. But the failure to join them as plaintiff is of no moment as the issues in the suit can effectually and completely be determined without them.
As held by the Supreme Court in Bello v. INEC & Anor (2010) LPELR – 767 (SC) “The law is settled that no cause or
matter shall be defeated by reason of mis-joinder or non-joinder of parties and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
In Green V. Green (1987) LPELR – 1338 (SC) the Supreme Court had restated that- “Now to the final and most relevant question – What happens where parties who should have been joined under Order IV Rule 5(1) above were not joined, and the case proceeded to judgment with the parties on record as the only parties? In other words what is the legal effect of non-joinder of parties? Under R.S.C. (England, 1979) Order 15 r 6:- 1 No cause or matter shall be defeated by reason of the mis-joinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. In other words, where there has been a non-joinder either by failure of the parties or an intervener to apply for such joinder or failure of the Court to join suo motu; this non-joinder will not be taken as a ground for defeating the
action. The above rule is thus designed to save rather than destroy, to cure rather than to kill the action or suit. Failure to join a party will thus under this Order (R.S.C. Order 15 R. 6) not be fatal to the proceeding and the Court may determine the issues or questions so far as those issues or questions relate to and affect the rights and interests of the parties actually before the Court.”
See alsoSapo & Anor v. Sunmonu (2010) LPELR – 3015 (SC).
The appellants who claim to have title to Plot 2491 serially listed at No. 85 in Exhibit B as one of the plots whose documents of title was submitted by the 1st respondent to 2nd and 3rd respondents for verification and in respect of which no adverse finding was made in the report of the verification findings, can bring an action claiming declaration of title to the said plot and challenging the authenticity of the document of title to plot 2491 submitted by the 1st respondent to the 2nd and 3rd respondents for verification. Their non-joinder in the suit at the trial Court has not handicapped or prejudiced in any way their right to sue for declaration of title to the said plot 2491. The judgment of
the trial Court did not declare title to the plots listed in Exhibit B. It merely determined that the 2nd and 3rd respondents herein were duly bound to return the documents they collected from the 1st respondents to him since they have not found them to be forged and have not found the plots therein to be irregularly allocated.
The non joinder of the appellants did not rob the trial Court of jurisdiction to try the issue of whether the failure of the 2nd and 3rd respondents to return the documents of title the 1st respondent gave to them is wrong and did not violate the appellant’s right of fair hearing.
Issue No. 1 is therefore hereby resolved in favour of the 1st respondent.
Let me now determine issue No. 2 which asks “Considering the nature of the Applicant’s claim and the totality of evidence presented before the trial Court, whether the learned trial judge was right in granting the claim of the Applicant as constituted in its entirety especially the mode of commencement?”
I have calmly and carefully read and considered the arguments of both sides on this issue.
One of the questions thrown up by the arguments of the parties under
this issue is whether the 1st respondent adduced sufficient and credible evidence to warrant the trial Court’s grant of the reliefs he claimed for.
Learned Counsel for the appellant argued that the 1st respondent did not produce credible and sufficient evidence to warrant the trial Court’s grant of the reliefs he claimed for, that the 1st respondent relied on only Exhibit B, which was only an invitation letter to the applicant from the 2nd and 3rd respondents without more and that the respondents vehemently denied the case of the 1st respondent.
Learned Counsel for the 1st respondent simply argued that the facts of the respondent’s case were clearly stated and that the trial Court was right in granting the said reliefs.
Let me now determine the merits of the above arguments of both sides.
The submission of Learned Counsel for the appellant that Exhibit B is the letter from the 2nd and 3rd respondents inviting the 1st respondent for verification is not correct. The record of this appeal show that the said invitation letter is Exhibit A and is at page 7 of the main record of this appeal. Exhibit B is the certified true copy of a document
from the Ministry of Federal Capital Territory, FCT Committee on Land Records and Allocation. It is headed “Re-List of Plots from Chief A.O. Success”. The full particulars of the 92 plots are stated thereunder in a tabular form. It is signed by one A.O Aliogena for Secretary of the Committee. Copies of some of the documents of title to the said plots were attached to the affidavit in support of the originating summons as Exhibits D1 to D10.
The one in respect of plot 2491 at pages 28 to 29 of the record of this appeal is a Certified True Copy of the 2nd respondent’s approval of grant of right occupancy of Plot 2491 to one Engr. Solomon Olu Ajayi of Education Tax Fund, Abuja dated 16-2-96 signed by one Kassim T Ahmed, Director, Lands Planning and Survey for the 2nd Respondent. Extracts of the Report of the FCT Committee on Land Record and Allocation verification is attached as Exhibit C in support of the affidavit in support of the Originating Summons. Table 1 in the report at page 11 of the record of this appeal is headed “LIST OF PLOTS LINKED WITH FORGED LAND DOCUMENTS.” 17 Plots and their particulars were listed therein as plots with forged land
documents. Non of the 92 plots in Exhibit B is listed therein as having a forged document of title.
The 2nd and 3rd respondents did file a counter affidavit in opposition to the Originating Summons. Apart from generally and tersely denying the detailed depositions in paragraphs 2 to 15 of the affidavit in support of the originating summons, the 2nd and 3rd respondents did not challenge or contradict the authenticity or correctness of Exhibits A, B, C and D1 to D10 which ex facie were issued by them. They rather remained silent about those documents and thereby admitted them as correct and issued by them. It is settled law that where a document is not challenged or denied by a contrary document or other evidence its correctness is deemed admitted. See Araba v Elegba (1986)1 NWLR(Pt.16)333, Rivers State Housing and Development Authority & Anor V Owakah (2010) LPELR-4899(CA), Afia & Anor V Charlie & Ors (2011) LPELR-4087(CA).
The counter affidavit in opposition to the Originating summons reads thusly-
“COUNTER AFFIDAVIT OPPOSITION TO ORIGINATING MOTION
I OGAH AGNES, female, adult, Christian, Nigerian citizen, of the lands
department, FEDERAL CAPITAL TERRITORY ADMINISTRATION FCTA, Abuja do hereby make oath and state as follows:
1. That I am an assistant chief lands officer in the lands department, FCTA and ipso facto conversant with the fact of the case.
2. That I have the consent and authority of all the respondents to depose to this affidavit.
3. That paragraphs 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15 are denied as not being true.
4. That the FCTA sometimes in 1999 observed various falsifications, forgeries, alterations and faking of land title documents in FCT.
B. That the reliefs sought by the applicant are not cognizable under the fundamental rights procedure rules.
C. That the applicant lacks the requisite capacity to institute this action
D. That the reliefs sought by the applicants are not tied to any specific plot of land owned by any specific person.
E. That these proceedings are hostile and cannot be determined vide affidavit evidence.
F. That this is a matter that ought to have been instituted vide writ of summons.
G. That the applicant has not shown how his rights have been infringed on by the respondents and the
damage consequent upon
H. That this action by its nature is belated.
I. That this action as constituted is incompetent.
J. That it will be in the interest of justice to dismiss action.
K. That I make this oath in good faith conscientiously believing same to be true and in accordance with the oaths Act.”
The general and terse one sentence denial of the detailed deposition in paragraphs 2 to 15 of the affidavit in support of the Originating Summons do not qualify as denial in law. A denial of an assertion of fact in an affidavit must be direct and clearly answer the particulars of the assertions. A general denial is in law an evasive denial and amounts to no denial. See Nishizawa Ltd v Strichand Jethwani (1984)12 SC 234 and Macaulay V NAL Merchant Bank Ltd(1990) 6 SC 206. As it is, the detailed depositions in paragraphs 1 to 16 of the affidavit in support of the Originating summons were not effectively denied or contradicted and remained admitted. See Oceanic Bank International Plc V Broken Agro Allied Industries Ltd (2008) LPELR – 4671(CA). so the fact deposed to in the affidavit in opposition and the documentary exhibits attached
thereto, remained uncontested and undisputed.
There was sufficient evidence elicited in the affidavits before the Court to enable the effectual and complete determination of the issue of the refusal of the 2nd and 3rd respondents to return the documents of title the 1st respondent said they collected from him.
The affidavits on both sides were not irreconcilably in conflict on any fact or any of the documents attached as exhibit to the affidavit in support of the Originating, which documents ex facie were issued by the 2nd and 3rd respondents. So the trial Court was right to have determined the merit of the suit on the affidavit evidence alone. As this Court held inGovernor of Kogi State & Ors V Ahmed & Ors in CA/A/810/2017 on 20-5-2019, “Our law recognises the trial of a case by affidavit evidence. This occurs if the case is commenced by Originating Summons or Originating Motion. Where the affidavit evidence from both sides are not contentious or not irreconcilably in conflict, the Court can proceed to determine such suit only on the affidavit evidence before it. Ordinarily, proceedings may commence by originating summons where the main
issue is or likely to be one of construction of a written law or of an instrument made under any written law or of any deed, will, contract or other document or some other question of law or there is unlikely to be a substantial dispute of law. But in practice, its use is not limited to only where the main issue is one of construction of a written law or an instrument made under any written law or any deed, will, contract other document or some other question law. The established judicial principle is to allow its use in cases where the substantial disputes of facts can be resolved on the affidavits and the accompanying exhibits without the need to recourse to oral evidence to resolve them.
So it is wrong for the trial Court to have held that because the affidavit of the claimants has not disclosed any instrument, deed or contract principally meant for interpretation of this Court, with the view to settling the issues in dispute between the parties, it was wrong to commence the suit by originating summons.”
Our present case is commenced by originating motion. Learned Counsel for the appellant has argued that it is inappropriate to use
Originating Motion to commence a suit of this nature that is in substance not for the enforcement of fundamental human rights and is likely to be contentious.
It is settled law that the use of an inappropriate process or method in commencing a suit would not vitiate it, provided the process or method used is one of the legally recognised originating processes and provided the inappropriate method caused no injustice on the adverse party. Order 1 Rule 2 of the High Court of the FCT (Civil Procedure) Rules 2004 provide for the various forms of commencing proceedings in the trial Court thusly:
“(1) Proceedings shall commence by writ, where a claim
(a) Made by a plaintiff for any relief for any tort or other civil wrong;
(b) Made by a plaintiff based on allegation of fraud;
(c) Made by a plaintiff for damages for breach of duty whether the duty exists by virtue of a contract or a provision of law or independently of a contract or provision or death of a person or in respect of personal injuries to a person or damage to property; or
(d) Made by an interested person, for a declaration.
(2) Proceedings may commence by originating
(a) The main issue is, or likely to be one of construction –
(i) of a written law or of an instrument made under any written law; or
(ii) of any deed, Will, contract or other document or some other question of law; or
(b) There is unlikely to be a substantial dispute of law.
Proceedings commenced contrary to this provision would not be vitiated by virtue of Order 2 Rule 1 of the High Court of the FCT (Civil Procedure) Rules 2004 which provides that-
“(1) Where in commencing proceedings, or at any stage in the course of a proceedings, there appears a failure to comply with the provisions of these Rules, in respect of time, place, manner, form or content or other, the failure may be treated as an irregularity, which shall not nullify the respective proceedings, document, Judgement or Order.”
See Commissioner of Lands Mid-Western State of Nigeria vs. Edo-Osagie & ors (1973) 6 SC 155 in which the Supreme Court applied provisions similar to Order 2 Rule 1 of the High Court of the FCT (Civil Procedure) Rules 2004 and held thusly- “This rule provides that if the proceedings were begun by writ instead of petition, or by
originating summons, or by originating motion, or vice versa, they are not void because they have been commenced by one of the originating processes, and will not, therefore, be wholly set aside.”
As I had held herein, the case is not contentious as the affidavits are not irreconcilably in conflict. The trial Court rightly determined it on the affidavit evidence before it.
What should be considered at this juncture is whether the evidence adduced by the 1st respondent justify the grant of the reliefs to him by the trial Court.
It is obvious that the counter affidavit of the 2nd and 3rd respondents did not effectively deny the depositions of facts in the affidavit in support of the originating motion and did not deny or even challenge the authenticity of Exhibits A to D and the correctness of their contents. But should the 1st respondent have succeeded for this reason alone, without a consideration of whether the case as so admitted entitles the 1st respondent to succeed.
By virtue of S.133(1) and (2) of the Evidence Act 2011 the 1st respondent as the claimant has a duty to prove his case on the strength of his own evidence and not on the
weakness or absence of a defence. So that if the evidence adduced by him fails to establish his claim, the weakness of the defence or the defence admission of his evidence would no help him succeed. The exact text of S. 133(1) and 2 of the Evidence Act reads thusly-
“(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
So let me now consider the evidence adduced by the 1st respondent to determine if it justifies the trial Court’s grant of the reliefs he claimed for.
The 1st respondent deposed in paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of the affidavit in support of the
Originating Motions thusly-
“4. I proceeded with the assignment on the Plots mentioned above till the 8th April, 2002 when I received invitation from the Respondents to attend interview with the FCT Committee on Land Records and Allocation to clarify some land related matters in the FCT (The letter dated 8th April, 2002 inviting me for interview is attached herewith as Exhibit).
5. Upon the request of the Respondents that I should attend the aforesaid interview with Original Documents of all Plots of land in Federal Capital Territory in which I was involved in my professional capacity, I obeyed and then requested from my clients the aforesaid Original Title Documents and submitted same to the committee of the Respondents.
6. The acknowledgment of the list of plots of title documents collected by the Respondents from me on the 10th of April, 2002 signed by one A.O. Aliogena is attached as Exhibit” B”.
7. I had innocently as an obedient Nigerian made a request on my various clients to hand over the Originals of the Title Documents listed in the aforesaid Exhibit “B” to me for submission to the Respondents.
8. The committee on Land
Records and Allocations set up by the Respondents interviewed me among several other people involved in land transactions in Federal Capital Territory at the material time and discovered several forged landed documents and indicted many people both staff and non-staff alike whom they recommended for various disciplinary measures including demotion, dismissal, termination and prosecution in Court of law.
9. Among the title documents found to be forged by the committee aforesaid, none of the title documents of the plots contained in Exhibit B above was among. (The chapter V of the Report of the Committee on Lands Records and Allocation is attached as Exhibit C while the Respondents are hereby given Notice to produce the aforesaid report before this Honourable Court in the course of hearing of this case).
10. Among all the people both staff, non-staff, land agents and developers and land owners investigated, interviewed and indicted neither my name nor the name of any of my clients who are owners of all the plots contained in Exhibit B were mentioned.
11. Notwithstanding the fact in the preceding paragraphs, the Respondents have
unexplainably refused to return the aforesaid title documents of nay clients which I handed over to the committee of the Respondents despite several demands for same since year 2002.”
The reliefs sought for in prayers 1, 2 and 3 of the originating motion sought to secure the release of the said title documents he had given to 2nd and 3rd respondents, which documents he said they have refused to release to him inspite of his demands for their release and are therefore detaining it unlawfully.
So the 1st respondent had the legal burden to prove that the 2nd and 3rd respondents invited him to the verification meeting with a directive or request that he attends the meeting with the Original Copies of the documents of title to the 92 plots he was custodying for his clients, that he delivered the said documents to them during the meeting and that the 2nd and 3rd respondents acknowledged receipt of those documents from him.
The invitation letter, Exhibit A, which he relied on in support of his deposition in paragraph 5 of his affidavit in support of the Originating motion contains no request that the 1st respondent attend the interview with Original
documents of title to the said 92 plots.
The exact text of the invitation letter reads thusly-
“I am directed to inform you that the Honourabte Minister of the FCT, Engineer Mohammed Abba Gana has set up a Committee on Land Records and Allocations in the FCT. The Committee which has undertaken considerable work requires some clarification on land related matters in which your name has been mentioned.
2. In view of the above, you are hereby invited for an interview with the Committee at 10.00am on Wednesday, 10th April, 2002. The venue is Room 322, International Conference Centre (back entrance).
3. You are requested to attend in your own interest please.”
It is glaring that this invitation letter, Exhibit A, did not request or direct the 1st respondent to come to the interview with the said original copies of the said documents of title to the said plots.
Exhibit B which the 1st respondent described as “the acknowledgment of the list of plots of title documents collected by the respondents from me on the 10th of April, 2002 signed by one A.O. Aliogena” does not contain any acknowledgment by the 2nd and 3rd respondents that they
collected or received from the 1st respondent the documents of title to the plots listed therein.
The 1st respondent did not elicit any iota of evidence of the 2nd and 3rd respondent’s acknowledgment of receipt of the said documents of title to the 92 plots. So the 1st respondent failed to prove that he delivered the documents of title to the plots listed in Exhibit B to the 2nd and 3rd respondents and therefore failed to prove his entitlement to the said reliefs. The trial Court’s grant of the reliefs is not justified and is baseless. The award of damages of N500,000.00, has no basis.
The 1st respondents claim in his originating motion filed for lack of merit. It is accordingly dismissed.
Issue No. 2 is resolved in favour of the 2nd and 3rd respondents.
On the whole, this appeal succeeds in part. It is allowed in part. The judgment of the High Court of FCT in Suit No. FCT/HC/CV/6069/2011 delivered on 31-5-2012 by Salisu Garba J., is hereby set aside.
I make no order as to costs.
Tairu Adebanjo with him, Joshua Uba and Daphne Edughale For Appellant(s)
B.J. Akomolafe with him, Molokuru for the 1st Respondent.
2nd & 3rd Respondents absent and unrepresented. For Respondent(s)