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NAABBA v. DANTATA & ORS (2022)

NAABBA v. DANTATA & ORS

(2022)LCN/17169(CA) 

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, June 08, 2022

CA/A/40/2017

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

HON. GHALI UMAR NA’ABBA APPELANT(S)

And

1. ALH. TURADU AMADU DANTATA (Suing Through His Attorney: TRADE WHEELS NIGERIA LIMITED) 2. MINISTER OF THE FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 4. ABUJA METROPOLITAN MANAGEMENT COUNCIL 5. DEPARTMENT OF DEVELOPMENT CONTROL 6. THE DIRECTOR OF THE DEPT. OF DEVELOPMENT CONTROL RESPONDENT(S)

 

RATIO

WHETHER OR NOT AN ACTION MUST BE PROPERLY CONSTITUTED IN TERMS OF THE PLANTIFF’S CAPACITY TO SUE FOR THE COURT TO HAVE JURISDICTION ON THE MATTER

The law is trite that an action must be properly constituted in terms of Plaintiff with capacity to sue and Defendant with capacity to defend the actions so as to vest jurisdiction in the Court seised of the matter to adjudicate upon it. See:
1. ALHAJA RAFATU AYORINDE & ORS VS ALHAJI ONI & ANOR (2000) 3 NWLR (PART 649) 348 per KARIBI-WHYTE, JSC.
2. J. SUNKANMI DAIRO & ORS VS THE REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2018) 1 NWLR (PART 1599) 62 at 76 C per AKAAHS, JSC.
3. ATAGUBA & COMPANY VS GURA NIGERIA LTD (2005) 8 NWLR (PART 927) 429 at 455 per DOZIE, JSC who said:
“Undoubtedly, for an action to be properly constituted so to vest jurisdiction in the Court to adjudicate on it, there must be a competent plaintiff and a competent defendant. As a general principle, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. See Shitta v. Ligali (1941) 16 NLR 23, Agbonmagbe Bank Ltd v. General Manager G. B. Ollivant Ltd and Anor (1961) All NLR 116. The law, however, recognizes that apart from natural and juristic persons, some non-legal entities can be brought by or against any party other than a natural person or person unless such a party has been given by statute, expressly or impliedly or by the common law, either:
a. a legal person under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by Act of Parliament; or
b. a right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sue but not incorporated.”
Thus where the capacity of a Plaintiff is challenged in a suit on ground of lack of capacity of or locus standi to commence the action the Plaintiff or the Claimant is expected to establish his capacity to sue or maintain the action. See:
1. CITEC INTERNATIONAL ESTATES LTD V. EDICOMSA INTERNATIONAL INC & ASSOCIATES (2018) 3 NWLR (PART 1606) 332 AT 358C per EKO, JSC who said:
“The lower Court held, at page 173 of the record, that where the legal capacity of the plaintiff is challenged by the defendant the onus is on the former to prove his legal status or capacity and that this is done by the plaintiff leading evidence, oral or documentary to prove its legal capacity that is challenged. The lower Court is quite right on this.”
PER IGE, J.C.A.

WHETHER OR NOT AN EQUITABLE OWNER IN POSSESSION CANNOT BE OVERRIDDEN BY A SUBSEQUENT GRANTEE OF A LEGAL ESTATE

1. NAPOLEON S. ORIANZI VS THE ATTORNEY-GENERAL, RIVERS STATE & ORS (2017) 6 NWLR (PART 1561) 224 AT 273 C – H per GALINJE, JSC who said:-
“In Olukoya v. Ashiru (2006) All FWLR (Pt. 322) 1479 at 1514 paras. E-H; (2006) 11 NWLR (Pt. 990) 1, this Court held that an equitable owner in possession cannot be overridden by a subsequent grantee of a legal estate. This is what my brother, Ogbuagu, JSC, 38, paras. F-H who read the lead judgment said:
“As rightly submitted in the respondent’s brief at page 8, the Jalingo Local Government having lawfully granted the land in dispute to the respondent, in 1981, it was left with nothing to grant to the appellant subsequently in 1983 during the subsistence of the grant to the respondent… so that, if there is proof that money was paid for the land coupled with an entry into possession it is sufficient, to defeat the title of a subsequent purchaser of the legal estate, if and provided that the possession, is continuously maintained … Thus, if even it is coupled with possession, it cannot be overridden by a legal estate.”
See Ogbu & 4 Ors v. Ani & 4 Ors (1994) 78 SCNJ (Pt. 11) 363; (1994) 7 NWLR (Pt. 335) 128, Soremekun v. Shodipo (1959) LPELR 30, Orasanmi v. Idowu (1959) 4 FSC 40; (1959) SCNLR 97, Oshodi v. Balogun & Ors. (1934) 4 WACA 1.
PER IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal Capital Territory High Court Abuja delivered by HON. JUSTICE O. A. ADENIYI on 4th May 2016 in suit No: FCT/HC/CV/630/14.

The 1st Respondent as the Plaintiff at the lower Court claimed against the 2nd to 6th and the Appellant at the said Court the following reliefs:
“1. A declaration that the Plaintiff is the lawful holder of Statutory Right of Occupancy and entitled to possession of all that piece of land measuring approximately 1999.52 square metres know as Plot No.864 located at Asokoro District Cadastral Zone A4, Abuja (and now particularly known and described as No. 26, Ukpabi Asika Street, Asokoro, Abuja) and marked by property Beacons PB. 1709, PB. 1714, PB. 1713 and PB. 1710, which is covered by Certificate of Occupancy No. FCT/ABU/KN.961 dated 26th day of October, 1988 issued under the hand of the Honourable Minister of the Federal Capital Territory and which was duly registered as No. FC 74 at page 74 in Volume 13 of the Certificate of Occupancy Register in the Lands Registry Office at Abuja at Twelve O’clock in the afternoon of 1st day of November, 1988 by the Deed Registrar, Abuja.
2. A declaration that the 1st to 5th Defendants have no lawful authority or powers to remove, destroy or demolish any building or other structures on ground only that title to the property have been revoked or indeed for any other reason except in strict compliance with the provisions of the Constitution and other enabling statutes.
3. A declaration that by virtue of the provision of Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 and all other enabling statute, it is only a Court of law duly constituted and vested with jurisdiction that can order the demolition of a building on ground that the property belongs to a rival claimant or that the Plaintiff is not entitled to the property.
4. A declaration that by the state of Nigerian law, it is only the 6th Defendant who claims to be entitled to possession of the property who can lawfully take steps within the judicial system and by means of a Court action to obtain Court orders for the demolition of buildings adjudged to be in trespass and not by resort to self-help with the aid of the 1st to the 5th Defendants.
5. An order of mandatory injunction directing the Defendants, whether by themselves, their agents, privies, servants and officers howsoever known or described to vacate the piece of land and restore possession to the Plaintiff.
6. An order of injunction, thereafter restraining the Defendants, their agents, servants, privies and assigns howsoever called and described from trespassing upon, entering or in any manner whatsoever tampering with the Plaintiff’s ownership or rights over the piece of land measuring approximately 1999.52 square metres know as Plot No. 864 located at Asokoro District Cadastral Zone AO4, Abuja (and now particularly known and described as No. 26, Ukpobi Asiko Street, Asokoro, Abuja) and marked by property Beacons PB. 1709, PB. 1714, PB.1713 and PB. 1710, which is covered by Certificate of Occupancy No. FCT/ABU/KN.961 doted 26th day of October, 1988 issued under the hand of the Honourable Minister of the Federal Capital Territory and which was duly registered as No. FC 74 at page 74 in Volume 13 of the Certificate of Occupancy Register in the Lands Registry Office at Abuja at Twelve O’clock in the afternoon of 1st day of November, 1988 by the Deed Registrar, Abuja.
7. The sum of Forty Million Naira (N40,000,000.00) general damages (including aggravated damages) for trespass, unlawful destruction of the Plaintiff’s house and other structures on the property.”

Pleadings and frontloading materials and documents were duly exchanged between the parties and the matter proceeded to trial. At the end of hearing the learned trial Judge gave a considered judgment and entered judgment in favour of the 1st Respondent to this appeal as per his claims and reliefs sought from the lower Court.

The Appellant was aggrieved and he has by his Notice of Appeal dated and filed on the 6th of May, 2016 appealed to this Court on seven (7) grounds which without their Particulars are as follows:
“GROUND 1
The judgment is against the weight of evidence.
GROUND 2
The learned trial Judge erred in law which occasioned a miscarriage of justice when he held that the Plaintiff’s Suit as constituted is properly constituted because Trade Wheels Nig. Ltd had the requisite legal capacity to institute and maintain this action on behalf of and as an agent of Alh. Turadu Amadu Dantata.
GROUND 3
The learned trial Judge erred in law which occasioned a miscarriage of justice when he held as follows:
“Therefore in the present case even if the parties joined issues as to whether or not the plaintiff gave consent to the attorney to commence the action, the attorney need not produce a written consent in other to establish that fact”.
GROUND 4
The learned trial Judge erred in law which occasioned a miscarriage of justice when he relied on Exhibit P1 (i.e. a mere Certificate of Occupancy) tendered by the Plaintiff as evidence of title, to declare title in respect of Plot No. 864 Asokoro, also known as Plot No 26 Ukpabi Asika Road, the Plot of land the subject matter of this suit, in favour of the Plaintiff.
GROUND 5
The learned trial Judge erred in law and came to a wrong conclusion which occasioned a miscarriage of justice when he held as follows:
“In view of its peculiar land tenure, only one paramount way is legally recognized by which a party can prove statutory rights or title to or ownership of land within the Federal Capital Territory and this is by production of documents of title, be it certificate of occupancy or deed of assignment or however described, issued under the hand of or given with the consent of the Minister of the Federal Capital Territory”.
GROUND 6
The trial Judge erred in law and came to a wrong conclusion which occasioned a miscarriage of justice when he held as follows:
“The settled legal position, as rightly contended by Mr. Onoja of counsel for Plaintiff, is that evidence of a right of occupancy raises a presumption that the holder of the rights is the owner of the land to which the right of occupancy relates. As was held by the Supreme Court in ILONA VS IDAKWO (2003) 11 NWLR (Pt. 830) 53, a document of title such as a Certificate of Occupancy is prima facie evidence of title. It will only give way to a better title. See also Olohunde vs Adeyoju (2000) 10 NWLR (Pt. 676) 562, Edebiri vs Daniel (2009) 8 NWLR (Pt 1142) 15”.
GROUND 7
The learned trial Judge erred in law which occasioned a miscarriage of justice when he declared title in favour of the Plaintiff and awarded him the sum of N40 Million (Forty Million Naira) as general and aggravated damages jointly and severally against the Defendants for trespass and unlawful destruction of the Plaintiff’s property at plot No 864 Asokoro District, Abuja.”

The Appellant’s Brief of Argument was filed on 24th April, 2017. The said Appellant’s Brief of Argument was deemed filed on 12th April, 2018. The 1st Respondent’s Brief of Argument was filed on 5th July, 2017 and was also deemed filed on 12th April, 2018 while 2nd – 6th Respondents’ Brief of Argument filed on 11th October, 2021 was deemed filed on the same date. The Appellant filed a Reply Brief of Argument 4th August, 2017.

The appeal was heard on 17th March, 2022 when the respective learned Counsel to the parties adopted their Brief(s) of Arguments.

The Appellant distilled four issues for determination of the appeal as follows:
a) Whether having regard to the pleadings and evidence in this case, the learned trial Judge was not wrong when he held that this suit was properly constituted and that TRADE WHEELS NIGERIA LIMITED had the requisite legal capacity to institute and maintain this action in Court notwithstanding the failure of the 1st Respondent to tender in evidence the purported Power of Attorney Alhaji Tauradu Amadu Dantata allegedly donated in favour of TRADE WHEELS NIGERIA LIMITED in respect of the Plot in dispute, as proof of the power/authority or capacity of the Attorney to sue and maintain this action in Court. (Distilled from Ground Two (2) of the Appeal).
b) Whether the learned trial Judge was not wrong when he held that there was no need to produce in evidence before the Court the purported Power of Attorney allegedly donated in favour of TRADE WHEELS NIGERIA LIMITED by Alhaji Tauradu Amadu Dantata as proof of the Attorney’s authority or power to sue and maintain this action in the capacity it did, when that the lack of capacity of Traded Wheels Nig. Ltd to institute and maintain the action was raised as a live issue in the case by both the Appellant and the 2nd – 5th Respondents. (Distilled from Ground Three (3) of the Appeal).
c) Whether the learned trial Judge did not err in law when he relied on Exhibit P1 (a mere Certificate of Occupancy) without proof of root of title, i.e. offer/conveyance of a Statutory Right of Occupancy and acceptance of same thereat to declare title in favour of the 1st Respondent in respect of the plot in dispute in this case. (Distilled from Ground Four (4), (5) and (6) of the Grounds of Appeal).
d) Whether having regard to the pleadings and evidence in the case, the award of N40,000,000.00 by the Honourable Court against the Appellant and the 2nd – 5th Respondents, as general and aggravated damages for trespass and demolition of property, was not excessive, perverse and contrary to all known legal principles of law on damages. (Distilled from Ground Seven (7) of the Grounds of Appeal).”

On his part, the learned Counsel to the 1st Respondent F. R. ONOJA ESQ., nominated one issue for determination viz:
“Whether the learned trial Judge was right to have entered judgment for the 1st Respondent in the circumstances.”

A sole issue was also formulated for determination of the appeal by DR. KAYODE AJULO for the 2nd to 6th Respondents thus:
“Whether in view of the circumstances of this matter and the evidence adduced by the parties the learned trial Judge was right to have awarded the claims of the Plaintiff and dismissed the Defence of 1st to 5th Defendants.”

The appeal will be determined on the four issues raised for determination by FRIDAY ODUMA, Esq., for the Appellant. I will take issues 1 and 2 together.

ISSUES 1 AND 2
It is the submission of the learned Counsel to the Appellant that the lower Court ought to have dismissed the suit of the 1st Respondent for failure, to lead any credible evidence that it has power and authority to act as lawful Attorney Alhaji TAURADU AMADU DANTATA in this matter in that the Plaintiff did not tender the power of Attorney by which he claimed to derive be in Court in respect of the disputed plot. He stated an Attorney must sue in the name of the Donor and not in his own name. He relied on pages 1, 6, 7, 27, 32, 50, 60, 65 and 72 of the record and the answer to 1st Respondent’s pleadings as contained in paragraphs 9, 10 and 11 of the Appellant’s Statement of Defence in the lower Court. He also relied on the cases of:
1. VULCAN GASES LTD VS G. F. INDUSTRIES AG (2001) 9 NWLR (PART 719) 610.
2. MELWANI V. FIVE STAR INDUSTRIES LTD (2002) 3 NWLR (PART 753) 217 and
3. DR. B. U. V. A. G. RIVERS & ANOR (2012) LPELR – 14243 CA page 10.

That failure to produce any iota of evidence in proof of Plaintiff’s assertions that Alhaji Tauradu Amadu Dantata donated a power of Attorney to 1st Respondent (Trade wheels Nigeria Limited in respect of the disputed plot means that 1st Respondent has failed to discharge the onus of proof on him. He relied on the cases of:
1. AGOMUO V. AGUWA (1992)… NWLR (PT. 216) 250.
2. ALHAJI ABUBAKAR VS ABUBAKAR WAZIRI & ORS (2008) LPELR – 54 (SC) and
3. NWEKE VS. NWEKE (2014) 43 WRN 59 at 94.

He urged the Court to invoke Section 167 (d) of the Evidence Act 2011 against the 1st Respondent for failure to produce what learned Counsel to the Appellant called “the purported power of Attorney allegedly donated in its favour …” He relied on Section 167 (d) of Evidence Act, 2011 and ABUBAKAR V. WAZIRI & ORS (supra). He submitted that the lower Court was wrong in holding that the Appellant and 2nd Respondent did not challenge the competence of the Attorney to institute the action, notwithstanding that all the Defendants challenged the competence of the action. That the conclusion reached contradicted the earlier findings of the lower Court to the effect that both set of Defendants at the lower Court challenged the competence of the action in their pleadings. He opined that the conclusion of the lower Court would open the floodgate to all manners of litigations in matters not relating to such litigants.

That appointment of an agent should be in accordance with Sections 2 and 15 of the Land Instrument Registration Act Cap. 515 LFN. He urged the Court to resolve issues 1 and 2 in Appellant favour.

Responding to the above submissions, learned Counsel to the 1st Respondent, in respect of question of failure to tender power of Attorney submitted that all the Appellant’s submissions and authorities cited did not state that power of Attorney must be tendered in evidence for an action which was commenced in the Name of the Plaintiff by his lawful Attorney to be valid.

That since the action was commenced in Plaintiff’s name it would be strange to tender power of Attorney in respect of action commenced in his own name and as such the case of MELWANI supra does not hold in Appellant’s favour. That what the case of Melwani decided was that the validly or otherwise of a power of Attorney was irrelevant once the action was commenced in the name of the Donor of the power of Attorney.

He stated that the decision of the lower Court and analysis done to the case of Melwani by lower Court represent the trite position of the law. He quoted in extensio pages 163 to 167 of the record of appeal. Learned Counsel to the 1st Respondent also relied on the decision of Supreme Court in Melwani’s case page 236 E -D thereof to submit that the present action was properly constituted at the lower Court. That the decision in Melwani’s case was cited out of context by the Appellant. He urged the Court to resolved issues 1 and 2 against the Appellant.

On his part, Dr. Ajulo did not make any submission in respect of issues 1 and 2 argued by the Appellant, on behalf of the 2nd to 6th Respondents.

RESOLUTION OF ISSUES 1 AND 2
The contention of the Appellant in the two issues is that the action was not properly constituted in that the Plaintiff’s Attorney lacked the capacity to maintain the action.

The law is trite that an action must be properly constituted in terms of Plaintiff with capacity to sue and Defendant with capacity to defend the actions so as to vest jurisdiction in the Court seised of the matter to adjudicate upon it. See:
1. ALHAJA RAFATU AYORINDE & ORS VS ALHAJI ONI & ANOR (2000) 3 NWLR (PART 649) 348 per KARIBI-WHYTE, JSC.
2. J. SUNKANMI DAIRO & ORS VS THE REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2018) 1 NWLR (PART 1599) 62 at 76 C per AKAAHS, JSC.
3. ATAGUBA & COMPANY VS GURA NIGERIA LTD (2005) 8 NWLR (PART 927) 429 at 455 per DOZIE, JSC who said:
“Undoubtedly, for an action to be properly constituted so to vest jurisdiction in the Court to adjudicate on it, there must be a competent plaintiff and a competent defendant. As a general principle, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. See Shitta v. Ligali (1941) 16 NLR 23, Agbonmagbe Bank Ltd v. General Manager G. B. Ollivant Ltd and Anor (1961) All NLR 116. The law, however, recognizes that apart from natural and juristic persons, some non-legal entities can be brought by or against any party other than a natural person or person unless such a party has been given by statute, expressly or impliedly or by the common law, either:
a. a legal person under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by Act of Parliament; or
b. a right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sue but not incorporated.”
Thus where the capacity of a Plaintiff is challenged in a suit on ground of lack of capacity of or locus standi to commence the action the Plaintiff or the Claimant is expected to establish his capacity to sue or maintain the action. See:
1. CITEC INTERNATIONAL ESTATES LTD V. EDICOMSA INTERNATIONAL INC & ASSOCIATES (2018) 3 NWLR (PART 1606) 332 AT 358C per EKO, JSC who said:
“The lower Court held, at page 173 of the record, that where the legal capacity of the plaintiff is challenged by the defendant the onus is on the former to prove his legal status or capacity and that this is done by the plaintiff leading evidence, oral or documentary to prove its legal capacity that is challenged. The lower Court is quite right on this.”

2. GOODWILL & TRUST INVESTMENT & ANOR VS. WIT & BUSH LTD (2011) 8 NWLR (PART 1250) 500 AT 540 B- H per ADEKEYE, JSC.

The capacity of the Plaintiff was stated as follows:
“ALHAJI TURADU AMADU DANTATA (SUING THROUGH HIS LAWFUL ATTORNEY TRADE WHEELS NIGERIA LTD.”

Now the apex Court in the land had in numerous cases explained and firmly decided on the meaning and implication of Power of Attorney and the position of an Attorney suing for his principal the donor. I call in aid the following decisions of the Supreme Court:
1. AMBASSADOR ALHAJI SHEHU OTHMAN MALAMI OFR & ANOR VS IMONKHUEDE OHIKHUARE & ORS (2019) 7 NWLR (PART 1670) 132 at 156 H to 157 A – F per AKA’AHS JSC who said: “Mr. Agi, SAN has argued in the appellants brief that the issue or capacity to sue did not arise from the pleadings or issues fought in the case but in the judgment of the Court below. He is right in so submitting. The donation of an irrevocable power of attorney by the 1st appellant to the 2nd appellant merely warrants or authorizes the 2nd appellant who is the donee to do certain acts in the stead of the donor but does not confer or transfer title to the 2nd appellant. The meaning and nature of a power of attorney was explained by Nnaemeka-Agu, JSC in Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 at pages 664- 665, paras. E-8 as follows:-
“It is left for me to deal with the second respondent’s contention that by execution of the power of attorney, Exhibit “A” without their consent the plaintiff/appellant had committed a breach of the covenant not to part with the possession of the demised property, without the lessor’s consent. To begin with, it appears to me that this thrust of the argument lost sight of the time nature of a power of attorney. A power of attorney is a document, usually but not always necessarily under seal, whereby a person seised of an estate in land authorises another person (the donee) who is called his attorney to do in the stead of the donor anything which the donor can do, lawfully usually spelt out in the power of attorney. Such acts may extend from receiving and suing for rates and rents from, to giving seisin to third parties. It may be issued for valuable consideration or may be coupled with interest, in either case, it is usually made to be irrevocable either absolutely or for a limited period… A power of attorney merely warrants and authorises the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers, limits, charges or alienates any title to the donee rather it could be a vehicle whereby these acts could be clone by the donee for and in the name of the donor to a third party. So even if it authorises the donee to do any of these acts to any person including himself the mere issuance of such power is not per se an alienation or parting with possession”.
The Court below was wrong to state in Vol. 3 page 2278 of the records that the 1st respondent (1st appellant) no longer had the power to initiate the proceedings at the lower Court for himself because it is settled that an irrevocable power of attorney given for valuable consideration robs the donor of power to exercise any of the powers conferred on the donee. The Court below wrongly applied Chime v. Chime (2001) 3 NWLR (Pt. 701) 527 to the proposition because Chime v. Chime supra followed the earlier decisions in Ajuwon v. Adeoti (1990) 2 NWLR (Pt. 132) 271, Oshola v. Finnih (1991) 3 NWLR (Pt. 178) 192 which were applied in Ude v. Nwara supra.” (Underlined mine)
2. ADEKOLA MUSTAPHA VS. CORPORATE AFFAIRS COMMISSION (2019) 7 (PT 2) SCM 114 at 126 D- E per OKORO, JSC who said:
“Let me state clearly that even where a party gives power of attorney for a person or counsel to sue on his behalf the law is settled that a donee of a power of attorney has no locus standi to institute an action on behalf of the donor in his own name. He must sue in the name of the donor as he is merely an agent of the donor. In Vulcan Gases Ltd v Gesellschaft (2001) 26 WRN 1, at 26 this Court held that:-
“The donee of a power of attorney or an agent in the presentation of a Court suit or action pursuant to his powers must sue in the name of the donor or his principal and not otherwise.” (Underlined mine)

The Plaintiff in his statement of claim pleaded in paragraphs 7-10 of the Statement of claim as follows:
“7. The plaintiff avers that the property is now known and better described as No. 26 Upkabi Asika Street, Asokoro, Abuja.
8. The Plaintiff avers that on or about the 11th day of July, 2008, the Plaintiff donated an irrevocable Power of Attorney to Trade Wheels Nigeria Limited of No. 27a Hadeiia road, Kano in respect of the aforesaid property. The Power of Attorney aforesaid was submitted to the 1st Defendant’s office for registration by the Plaintiff’s letter date 7th July, 2008 a copy of which the Plaintiff hereby pleads and shall rely on it at the trial of this action. All the copies of the Power of the Attorney aforesaid are in the custody of the 1st Defendant and subject to discovery or orders for subpoena duces tecurn, the Plaintiff hereby gives notice to the 1st Defendant to produce the Power of Attorney forwarded for registration at the trial of this action.
9. That upon the appointment of Trade Wheels Nigeria Limited as the lawful Attorney, the property as well as the title documents covering the land was handed over to the Attorney.
10. The Plaintiff avers that the aforesaid piece of land was vacant and undeveloped at the material time when the Power of Attorney was donated to Trade Wheels Nigeria Limited. It was the Plaintiff’s Attorney who erected the fence around the property, built a house and placed a large container on the piece of land.”

In response to the above paragraphs of the Statement of Claim, the 2nd to 6th Respondents in their Joint Statement of Defence averred in paragraphs 4, 5 and 6 thereof as follows:
“4. The 1st to 5th Defendants deny paragraph 6 and 7 of the Statement of Claim and the Plaintiff is put to the strictest proof thereof.
5. The 1st – 5th Defendants deny paragraph 8 of the Statement of Claim. In further response, the 1st – 5th Defendants states that there was no Power of Attorney donated by the Plaintiff and there is no such Power of Attorney either submitted or in custody of the 1st Defendant for registration or for any other purpose. The 1st Defendant office did not receive any letter dated 7/07/08.
6. Paragraph 9 and 10 of the Statement of Claim are denied. In further response the 1st – 5th Defendants states that the purported Plaintiff’s Attorney did not erect any fence around the property, built a house or place a large container on the subject matter of this suit. Even if the purported Plaintiff’s Attorney did so, it was without title to the plot and without approval from the Department of Development Control of the FCT. The said fence and house, if any, were contrary to the FCT Act.” (Underlined mine)

On his part, the 6th Defendant now the Appellant pleaded in the same vein as the 1st to 5th Defendants (now 2nd to 6th Respondents) in paragraphs 10 and 11 of his Statement of Defence as follows:
“10. The 6th Defendant denies paragraphs 8 and 9 of Plaintiff’s Statement of Claim and avers that the Plaintiff never donated Irrevocable Power of Attorney to Trade Wheels Nigeria Limited over his Land as he has no title to donate, neither did he submit any Power of Attorney to the 1st Defendant over the 6th Defendant’s plot No. 864 Asokoro District Cadastral Zone A4 and if there is any power of attorney to be donated at all, it is the 6th defendant who should do that and therefore puts the Plaintiff to the strictest proof of same.
11. The 6th Defendant denies paragraphs 10, 11, 12 and 13 of Plaintiffs Statement of Claim and avers that Plaintiff and his Attorney were trespassers on Plot 864 Asokoro District Abuja. That the Plaintiff has no title to the property, neither has be any approval from the 6th defendant or from any quarters to build any structure whatsoever over the 6th defendant’s plot. 

The Plaintiff is hereby put on notice to produce the said approval letter.” (Underlined mine)

A close perusal or community reading of each of the defence of the two set of Defendants at the lower Court (now 1st to 5th Respondents and Appellant) glaringly show that they did not specifically deny the fact that the Plaintiff was actually suing vide his Attorney and not that the Attorney of the Plaintiff was suing for herself. No. The Plaintiff sued the 2nd to 5th Respondents and the Appellant through his Attorney as explicitly stated on the Writ and the Statement of Claim. I have read together the terse denials of the Appellant and the 2nd to 6th Respondents on the issue of Power of Attorney and what could be seen is that they were only challenging the capacity of the Attorney and not the locus or capacity of the Plaintiff to institute the action. Reading the defence of each of the two set of Defendants at the lower Court, they have not in law denied the capacity of the Plaintiff or his Attorney to institute the action. The pleading(s) of the 2nd to 6th Respondents constitute admissions of facts pleaded in the Statement of Claim. The 6th Defendant now Appellant made sure he tailored his defence along the path taken by the 2nd to 6th Respondents in their Joint Statement of Defence.
They are deemed to have admitted the status and the capacity in which the Plaintiff had instituted the action as correct in law. They did not specifically deny in clear and direct manner the assertion of the Plaintiff as to the capacity by which the action was instituted. They were just being evasive. See:
1. MERIDIEN TRADE CORPORATION LTD CORPORATION LTD V. METAL CONSTRUCTION (W.A) LTD (1998) 3SC 20 at 29 – 30 where it was held:
“The basic rule of pleading is that a traverse whether by denial or refusal to admit, must not be evasive but must answer the point of substance. The pleader must deal specifically with every allegation of fact made by his opponent, he must either admit it frankly or deny it boldly. Any half admission or half-denial is evasive.”
2. IBAFON CHEMICALS LTD VS VISA INVESTMENT & SECURITY LTD & ANOR (2009) LPELR – 4273 per OGUNBIYI JSC who said:
“An admission to entitle judgment could be express or implied. While the former occurs when in accordance with the rules, if pleadings, a party fails to traverse a material allegation of fact of the opposite party, the latter, just as the name signifies, must be expressly and unambiguously stated. Presumption or insinuation would not qualify. The legal effect of both types is the same and both can be the basis of an application for judgment under Order 29 Rules 6. An authority in support is again the case of Anesons Farms Ltd v Nal Merchant Bank supra. Also the case of International Merchant Bank Plc v Comrade Cycle Co. Ltd. (1998) 11 NWLR (Pt.574) at 460 a decision of this Court.” Per OGUNBIYI, J.C.A. (P. 24, paras. A-E).”

PW2 ALHAJI ABDULDADIR ABACHA, the Executive Chairman of the Plaintiff’s Attorney testified on pages 137 – 138 of the record of appeal as follows:
“PW2: ALH. ABDULKADIR ABACHA
(Sworn in the Holy Qur’an, States in English Language)
EXAMINATION- IN- CHIEF
My name and address remain as it is in my Statement on Oath.
Statement on Oath of Alh: Abdulkadir Abacha – WS2.
Now shown to me are the documents I referred to in my Statement on Oath which I intend to rely on at the trial of this suit.
PC: I seek to tender the documents in evidence –
1 – 5DC: No objection
6 DC: No objection
Court: Original Certificate of Occupancy registered as No. FC74 at page 74 in Volume 13 (C of O) in the Land Administration, Land Registry Office at Abuja – particularly referred to in paragraph 3 of the Statement on Oath of PW2 – Exhibit P1.
Original Quit Notice dated 22/11/2013 issued by the Department of Development Control Abuja Metropolitan Council on Plot No. 864, Asokoro Cadastral AO4 – Exhibit P2.
Original Demolition Notice dated 30-01-2014, issued by the same office on the same property aforementioned – Exhibit P3.
PW1: I invited a photographer to take photograph of the demolished property. They are the ones now shown to me.
PC: I seek to tender the photographs.
1 – 5DC: We object.
6DC: We also object.
PC: We humbly withdraw the documents sought to be tendered PC: That is all for the witness.
CROSS – EXAMINATION
By 1 – 5DC: The Plaintiff gave a Right of Occupancy to the company I represent. It is correct that we conducted a search on the genuiness of the property. We were also given original Certificate of occupancy. We also did physical search.
It is correct that we erected a fence on the property in order to secure it whilst we await for approval that we applied for which never earns. We submitted a drawing to the authority for approval.
Personally, I was not physically available at the scene of the demolition. As such I cannot name the actual persons from the office of the 1st – 5th Defendants that carried out the demolition.
6DC: Plaintiff’s name is Alh. Amadu Dantata. I am not the Plaintiff in this case. It is correct that Exhibit P1 gives my company title to the land, based on the Power of Attorney. The document gives the person who was given Power of Attorney title to the land.”

It is significant that under examination-in-chief, the PW2 testified particularly that Plaintiff is Alhaji Turadu Amadu Dantata and that he was issued with Certificate of Occupancy as evidence of his title to the land. He also testified that Trade Wheel Nigeria Ltd was/is the Plaintiff’s Attorney in this action since July, 2008.

As can be seen from his evidence (PW2) reproduced above the learned Counsel to the 1st to 5th Respondents did not by way of cross-examination Challenge the capacity of the Plaintiff and the Attorney through which the Plaintiff sued the Defendants at the lower Court.
​Under cross-examination by Appellant’s learned Counsel, the witness PW2 stated in no uncertain terms that Alh. Amadu Danatata is the Plaintiff and that based on the power of Attorney, Exhibit P1 gives title to his company.
The cross-examination neither query the capacity of the Plaintiff nor that of the Attorney.
This again is an admission by the Appellant to the proper constitution of the 1st Respondent’s action against the 1st to 5th Respondents and the Appellant. To my mind and on the settled position of the law the 1st Respondent eminently by his pleading and oral evidence of PW2 established conclusively established the fact that the Plaintiff instituted this action in his own name and through his lawful Attorney TRADE WHEELS NIGERIA LTD. See:
1. MUSTAPHA V. CAC supra
2. MALAMI CPR V. OHIKHUARE supra
3. CITEC INTERNATIONAL ESTATES LIMITED VS EDICOMSA (2018) 3 NWLR (PART 1602) 332 at 358 C per EKO JSC.

I agree with lower Court that this action was properly constituted and it is competent. The lower Court properly assumed jurisdiction in adjudicating on the 1st Respondent’s Suit on the merit. Issues 1 and 2 are hereby resolved against the Appellant.
I will take issues 3 and 4 together.
“c) Whether the learned trial Judge did not err in law when he relied on Exhibit P1 (a mere Certificate of Occupancy) without proof of root of title, i.e. offer/conveyance of a Statutory Right of Occupancy and acceptance of same thereat to declare title in favour of the 1st Respondent in respect of the Plot in dispute in this case. (Distilled from Ground Four (5) and (6) of the Grounds of Appeal).
d) Whether having regard to the pleadings and evidence in the case, the award of N40,000,000.00 by the Honourable Court against the Appellant and the 2nd – 5th Respondents, as general and aggravated damages for trespass and demolition of property, was not excessive, perverse and contrary to all known legal principles of law on damages. (Distilled from Ground Seven (7) of the Grounds of Appeal).”

On issue 3 as to whether the lower Court was right in relying on Exhibit P1 which the learned counsel to the Appellant referred to as a mere certificate of occupancy, he submitted that the conclusion by the trial Court that mere tendering of a certificate of occupancy without more is enough proof of title to land in FCT was wrong in law and therefore a miscarriage of justice. That for a party to succeed in a claim for declaration of title to land he must show its root of title and failure to tender in evidence “its root of title to the plot in dispute in claim for title is fatal to its case as mere tendering of a certificate of occupancy is not enough proof of title.” He relied on the cases of:
1. BUREMOH VS. AKANDE (2000) 15 NWLR (PT. 690) 260 at 286.
2. OGUNLEYE VS. ONI (1990) 2 NWLR (PT. 135) 745 at 774
3. OTUKPO V. JOHN (2012) 7 NWLR (PT. 1299) 357 at 377.

He stated that the 1st Respondent had pleaded in paragraph 15 and 16 of the Statement of Claim that he is the owner and person entitled to possession of PLOT 864 ASOKORO DISTRICT ABUJA by virtue of a certificate of occupancy issued to him under the hands of the 2nd Respondent and registered as FC 74 at page in Volume 13 of the Certificate of Occupancy Register. That the Appellant categorically raised the issue that 1st Respondent never applied for allocation of land in the Federal Capital Territory and therefore could not have been issued any statutory right of occupancy in respect of the plot to entitle him to a certificate of occupancy. That 2nd to 6th Respondents pleaded in the same vein. That since the 2nd to 6th Respondents denied issuing Exhibit P1 tendered by 1st Respondent, the latter was bound to prove how he came about Exhibit P1. That all conditions precedent for acquisition of certificate of occupancy in FCT were not complied with by the 1st Respondent. He relied on MADU V. MADU (2008) 6 NWLR (PART 1083) 296. He also relied on Section 5(1)(a) and (2), 51(2) of the Land Use Act, 1978. He also relied on Section 297 (2) and 304 of the 1999 Constitution of the Federal Republic of Nigeria 1999 as amended. He submitted that in this case there is no iota of evidence that the 1st Respondent was issued with any letter of conveyance of approval of offer of terms of statutory and conditions of occupancy, and that he same and paid requisite fees/charges Respondent to a Certificate of Occupancy. He relied on paragraphs 7, 8, 9 and 10 of Joint Statement of Defence filed by the 2nd to 6th Respondents at lower Court contained in supplementary any record. That the 1st Respondent did not deny the facts pleaded by Appellant and 2nd – 6th Respondents and that facts not denied are deemed admitted. He relied on the cases of BALOGUN VS. EOCB (NIG) LTD (2007) ALL FWLR (PT 382) 1852 at 1969 D – F and DANLADI VS. DANGIRI (2014) LPELR – 24020 (SC). That the 1st Respondent has failed to prove his title to the land and that no title could be declared in 1st Respondent’s favour on Exhibit P1 which he termed a mere certificate of occupancy.

He urged the Court to resolve issue 3 in Appellant’s favour.

On issue 4 as to whether the award of N40,000.00 in favour of 1st Respondent against the Appellant and 2nd to 6th Respondents, jointly and severally as generally and aggravated damages for trespass and demolition of property was not excessive, perverse and contrary to principles, the learned Counsel to the Appellant submitted that the lower Court ought to have dismissed the 1st Respondent’s claim since 1st Respondent, according to him did not prove his title to the Plot in dispute and any demolition of 15 properties. That there was no evidence of any development by 1st Respondent on the land talkless of its destruction by the Appellant or 2nd – 6th Respondents. He submitted that award of damages is a discretionary remedy available to the Court where the claim for damages is established. That damages are not awarded as a matter of course but on cogent, credible and reliable evidence shown by the claimant establishing his entitlement to such. He relied on the case of UTC NIGERIA LTD VS. SAMUEL PETERS (2009) LPELR-8426 CA 44 D – C.

On when an Appellate Court will intervene to remedy ridiculous award of damages. He relied on the case of SAM & ANOR vs. KALU (2011) -4092 CA pp. 8 to 9. He referred to page 17 where the 1st Respondent pleaded destruction of his properties and the fact that the Appellant and 2nd to 6th Respondents vehemently denied the 1st Respondent’s assertion. That 1st Respondent failed to lead evidence of destruction or damages against the Appellant and 2nd to 6th Respondents. He opined that the award was based on ipse dexit pf PW1. He relied on the case of KUCHITA & ORS V. MOHAMMED (2012) LPELR CA 14357 p. 22 C – D. On need to avoid speculation in claim for damages. That there was no evidence that it was the Appellant that demolished the building or structure on the land or that Appellant took part in it. That it was wrong for lower Court to have relied on unpleaded and unsubstantiated allegation of 1st Respondent to find the Appellant liable of payment of damages for trespass. He urged the Court to resolve the issue against the Respondent.

Responding to the above submissions under issue 3, the learned Counsel to the Respondent submitted that a Certificate of Occupancy is a prima facie evidence of title and raises a rebuttable presumption that the holder is the owner of the land in dispute unless somebody with a better title can show otherwise. That the trial Court stood on sound legal principles when the lower Court came to the conclusion that having tendered Exhibit P1, it became irrelevant and immaterial for the Plaintiff to further establish that he applied to Statutory Right of Occupancy or that he accepted the grant or that he paid fees for the issuance of Certificate of Occupancy and so on.

The learned Counsel to the Respondent submitted that since both 1st Respondent and Appellant relied on Certificate of Occupancy Exhibit P1 and D6 respectively from the Hon. Minister of Federal Capital Territory on 1/11/1988 and 8/1/2014 respectively, the Appellant did not contend that Exhibit PI relied upon by the 1st Respondent was forged as none of the Defendant at the lower Court pleaded that Exhibit P1 was forged, and that the law has raised a prima facie evidence of Right of Occupancy and a presumption that the holder of the Right of Occupancy is the 1st Respondent. He relied on numerous cases including FINNIH V IMADE (1992) 1 NWLR (PART 219) 571 and MUSA V OSAWE (1991) 8 NWLR (PART 208) 238. He submitted that it is now settled Jaw that reliance on title documents one of the five ways of establishing title to land. He relied on the case of KYARI V ALKALI & ORS (2001) 11 NWLR (PT. 724) 412 AT 439 and IDUNDUN V OKUMAGBA (1979) 9 – 10 SC 227. He relied on the case of AREMU V CHUKWU (2012) 3 NWLR (PART 1288) 587 and AYANWALE V ODUSAMI (2011) 18 NWLR 1278 AT 528.

On the five conditions Court must consider in respect of the document of title relied upon. He also relied on Section 168(1) of the Evidence Act. That Appellant did not show better title to the land in dispute and that Exhibit P1 was created first and being first in time the 1st Respondent has a better title. He relied on:
1. OMIYALE V MACAULAY (2009) 3 -4 SC 1.
2. ADOLE V. GWAR (2008) 3 -4 SC 78.
3. ASHIRU V OLUKOYA (2006) (PART 990) 1 SC.

That the 1st Respondent was rightfully declared the owner of the land in dispute. He urged the Court to resolve issue 3 against the Appellant.

On issue 4 relating to ward of damages, learned Counsel to the 1st Respondent submitted that damages need not be specifically pleaded or proved by evidence as it flows naturally from the wrongful act of a Defendant. That trespass is actionable per se without the need to prove any kind of damages once the Court determines that trespass has been committed. He relied on the cases of:
1. ENG. LTD V ALPHA PRAXIS NIG. LTD & ANOR (2015) 5 NWLR 327;
2. FMF LTD V EKPO (2005) ALL FWLR (PART 248) 1667;
3. OCEANIC BANK INT. LTD V OWONOR (2009) 11 FWLR (PART 454) 1599 and
4. UBN LTD V AJABULE (2011) 18 NWLR 178.
He submitted that the lower Court was right. He relied on the case of SPDC NIGERIA LTD V Edamkue (2009) 4 NWLR (PART 1131) 260 E – G.
He urged the Court to resolve issues 3 and 4 against the Appellant. In conclusion, he urged the Court to dismiss the appeal.

On their part, the 2nd – 6th Respondents supported the position of the Appellant in on breath and also concluded that the traditional role of the Respondent is to support judgment of lower Court unless there is a cross-appeal. In another breath, they are prepared to abide with any decision reached by this Court.

RESOLUTION OF ISSUES 3 AND 4
The main thrust of the argument of the Appellant’s learned Counsel is that Exhibit P1 tendered as document of title and Certificate of Occupancy in favour of the 1st Respondent is “a mere certificate of occupancy”. The Appellant as a follow up submitted in paragraph 5.05 of his Brief of Argument as follows:-
“We submit that the 1st – 5th Defendants now 2nd to 6th Respondents having denied issuing Exhibit P1 i.e. the Certificate of Occupancy to the 1st Respondent, the burden was on the 1st Respondent to prove its root of title by leading credible evidence to establish its root of title up to the point of the issuance of the Certificate of Occupancy i.e. Exhibit P1 by way of tendering its application for land forms, payment of fees, issuance of the Right of Occupancy and complying with the terms and conditions contained in the Right of occupancy before the issuance of the Certificate of Occupancy by the Hon. Minister of the Federal Capital Territory. These are the conditions precedent for a valid acquisition of land title in the Federal Capital Territory.”

This is understandable because the Appellant’s Certificate of Occupancy was issued to him long after the 1st Respondent’s Certificate of Occupancy was issued in 1st Respondent’s favour on 1st November, 1988 while that of the Appellant was issued to him on 8/1/2014, that is 26 years later.

It is pertinent to say that the 2nd – 6th Respondents did not plead anywhere that Exhibit P1 was not issued by the Hon. Minister of FCT at the material time. All they pleaded was that they did not have any Land Registry where the 1st Respondent’s Certificate of Occupancy was registered.

The 1st Respondent through his two witnesses tendered Exhibits WS1 (Witness Statement of PW1) through PW1 without objection from the Appellant and 1st and 5th Respondents’ learned Counsel at the lower Court.
PW2 tendered:
1. Original Certificate of Occupancy registered at page 74 in Volume 13 (C of O) in the land Administration, Land Registry Office at Abuja.
2. Original Quit Notice dated 22/11/2013 issued by the Department of Development Control, ABUJA Metropolitan Council on plot no. 864 Asokoro Cadastral AOI as Exhibit P2 and
3. Original Demolition Notice dated 30/01/2014 issued by the office of 2nd, 3rd, 4th and 5th Respondents.

All the above documents were tendered by the Plaintiff’s Witness (PW2) without any objection(s) from the 2nd – 6th Respondents and the Appellant’s learned Counsel. All of them are estopped from challenging the authenticity of the 1st Respondent’s Certificate of Occupancy aforesaid. The 2nd – 6th Respondents and the Appellant denied the issuance and service of Exhibits P2 (Quit Notice) and Exhibit P3 Original Demolition Notice. Their failure to object to them means that those documents emanated from the 2nd – 6th Respondents and they were served or posted on the Plaintiff’s property by the officers of the 2nd – 6th Respondents. They did not deny writing or pasting on the buildings on the land of 1st Respondent Demolition Notice No. “DC DEMOLITION 30.1.14”.

The 2nd, 3rd, 4th, 5th and 6th Respondents did not also deny posting DEMOLITION NOTICE NO. 3352 on the properties of the Plaintiff/1st Respondent on the land in dispute.

The Appellant and the 2nd – 6th Respondents did not show DW1 any of the Exhibits P2 and PW3 and so there was no denial that Exhibits P2 and PW3 emanated from 2nd – 6th Respondents howbeit illegally.

They (2nd – 6th Appellants) did not plead any discernible fraud or illegality of Exhibit P1. Exhibit P1 enjoys the presumption of regularity and genuiness. It is presumed to have been validly issued and that it is genuine. See Section 168(1), (2) and (3) of the Evidence Act which reads:-
“168.(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.
(2) When it is shown that a person acted in a public capacity,” it is presumed that he had been duly appointed and was entitled so to act.
(3) When a person in possession of any property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duly of his trustees to execute in order to perfect his title.”

The learned trial Judge was perfectly entitled to rely on Exhibit P1, the 1st Respondent’s Certificate of Occupancy to find in his favour that the land in dispute is the bona fide property of the 1st Respondent. See:
1. CHIEF BRUNO ETIM & ORS V CHIEF OKON UDO EKPE & ANOR (1983) 3 SC 12 AT 36-38 per ANIAGOLU, JSC who said:-
“It is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases, that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document (or other evidence. See CHUKWURA AWNNE v. MATTHIAS EKWUNO (1952)14 W.A.C.A. 59), the document will be admitted in evidence and the opposing-party cannot afterwards be heard to complain about its admission (see ALADE V. OLUKADE (1976)2 S.C. 183 at 188-9; for criminal trials – see: R. v. HAMMOND (1941)3 All E.R. 318; R. v. PATEL (1951 All E.R.29). Such exceptions would, among others, include an
(i) unregistered instrument required by law to be registered (See ABDALLAH JAMAL v. NAMIH SAIDI and Anor (1933) 11 N.L.B. 86, ELKALI and Anor v. FAWAZ (1940) 6 W.A.C.A. 212, IDOWU ALASHE and Others v ILU and Ors (1965) N.M.L.R. 66);
(ii) unsigned deed of grant (or copy or copy of copy thereof) (ABDUL HAMID OJO v. PRIMATE ADEJOBI and Others (1978) 3 S.C. 65;
(iii) unstamped instrument or document requiring to be stamped, unless it may legally be stamped after execution and the duty and penalties are paid (See ROUTLEDGE v. MCKAY (1954) 1 ALL E.R. 655 at 856; 1 W.L.R 615 at 617).
The contention as to the admissibility of those exhibits to which objection was not raised is clearly misconceived and entirely without substance.”
2. JOSEPH ISHOLA-WILLIAMS V T. A. HAMMOND PROJECTS LTD (1988) LPELR – 1551 (SC) PAGE 1 AT 29 D – F per AGBAJE, JSC who said:-
“In proof of the breach of this covenant the plaintiff relied exclusively on Exh. C-C4. It is my view that once these documents have been tendered and admitted in evidence without any objection they can be used for all legitimate purposes. The defendant for its part in resistance to the case against it put in evidence some documents. These documents too once they have been admitted in evidence could be used for all legitimate purposes. See Sodimu v. Nigerian Ports Authority (1975) 1 All N.L.R. Part 1 p. 153 at 160-161.”

On whether the 1st Respondent needed to produce documents to show how he applied for allocation of the land in dispute from the Minister of FCT and that necessary fess or monies were paid before certificate of occupancy was issued to him, these are the pleaded case of the Appellant and the 2nd – 6th Respondents. They have the onus to prove their assertions.

Where a party tenders a document especially public document like Exhibit P1 and the adversary as in this case the 2nd – 6th Respondents and the Appellant did not plead any fact to impeach the document at the trial or even before the trial such a document remains impeccable and valuable for all time and the trial Court will be entitled to accord the document precisely Exhibit P1 in this case has probative value as the lower Court had done in this case. The 2nd – 6th Respondents are estopped from claiming that the document, they 2nd – 6th Respondents, issued in favour of the 1st Respondent is invalid or that it did not fulfill conditions precedent.
The document Exhibit P1 cannot in the circumstance lose its efficacy and validity. The Appellant and the 2nd – 6th Respondents are caught in the web of issue estoppel enacted in Section 169 of the Evidence Act which says:
“169. When one person has, either by virtue of an existing Court judgment, deed or agreement or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person ‘s representative in interest, to deny the truth of that thing.”
The right to query the validity of Exhibit P1 has long been lost and waived by the 2nd – 6th Respondents to this appeal. That been the case the 2nd – 6th Respondents had nothing left to transfer or convey in form of Right of Occupancy in favour of the Appellant. See HAJIA YUNUSA BAKARI V DEACONNESS (MRS) FELICIA OGUNDIPE & ORS (2021) 5 NWLR (PART 1768) 1 AT 68 F – H TO 69 A per EKO, JSC who said:-
“In the instant case, the point of the statement of claim being defective, having been settled by an unknown proxy of Chief A. S. Awomolo, SAN, is being raised for the first time in this second tier appeal. The appellant, on this issue, is caught by the doctrine of estoppel by conduct, which in Section 169 of the Evidence Act, 2011 is provided thus –
When one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.
I should think it is now inequitable and unjust to the plaintiff/1st respondent for this Court to accede to this belated objection; the appellant having waived his right of timeous objection to the irregular statement of claim. Delay defeats equity.”

The Appellant will have to sink or swim with the position of the 2nd – 6th Respondents.
The lower Court found against the 2nd – 6th Respondents on pages 185 – 186 as follows:-
“In other words, by purporting that Plot 864 was revoked on 5/10/2005, as stated in the faced of Exhibit P3, the 1st – 5th Defendants by implication had admitted that prior to the purported revocation, there existed a valid title over Plot 864 in favour of the Plaintiff. But then, having failed to establish either through their pleadings or at the trial that any such revocation was lawfully carried out, it is proper to accept the testimony of the PW2 that no such revocation ever took place. I so hold.
Now, the 6th Defendant, in his defence had gone ahead to tender a gamut of documents, including a Certificate of Occupancy Exhibit D6. Purportedly issued to him with respect to the same Plot 864, by the 1st Defendant on 31st January, 2014, to show that he was validly granted the same plot by the 1st Defendant.
It is very crucial, first of all, to remark that the Defendants have not filed any counter-claim against the Plaintiff, as such the Court cannot make any positive declarations in their favour as far as the plot in dispute is concerned. The present action must strictly be determined principally on the issue as to whether or not the Plaintiff has proved that he is the rightful holder of tile to Plot 864 and not whether the plot was rightly granted to the 6th Defendant. The only fact that could defeat the claim of the Plaintiff is where the Defendants are able to establish that prior to 26th October, 1988, the date when the 1st Defendant issued the Certificate of Occupancy, Exhibit P1, in the Plaintiff’s favour, as clearly established by evidence, there had existed a prior third party legal interest on the same plot in favour of the 6th Defendant or anyone else for that matter. In other words, the 6th Defendant cannot rely on Certificate of Occupancy purportedly granted in his favour on 31st January, 2014 by the same 1st Defendant over the same Plot 864, to defeat the existing and subsisting Certificate of Occupancy granted to the Plaintiff on 26th October, 1988. It is as simple and clear as that.
The implication therefore is that the grant subsequently made to the 6th Defendant with respect to Plot 864 by the 1st Defendant, was so mode in violation of the provision of Section 28 of the Land Use Act and as such is null and void ab initio and conferred no title to the 6th Defendant as it purportedly did. The applicable maxims here are – qui prior est tempore potior est jure – meaning that he who is earlier in time is stronger in low and the maxim – nemo dat quad non habet – which means that no one can give that which he does not have. See Ilona vs. Dakwo (supra).”

The lower Court cannot be faulted. The Certificate of Occupancy issued in Appellant’s favour is null and void because as at the time the 2nd – 6th Respondents allocated the land in dispute to the Appellant, the Right of Occupancy they (2nd – 6th Respondents) particularly the 2nd Respondent, had no scintilla of interest, legal or equitable in the said plot of land, subject matter of this action to vest or transfer to the Appellant because the Certificate of Occupancy, Exhibit P1 issued in favour of the 1st Respondent was still valid and subsiding. It is still valid and the land belongs to the 1st Respondent. See:-
1. NAPOLEON S. ORIANZI VS THE ATTORNEY-GENERAL, RIVERS STATE & ORS (2017) 6 NWLR (PART 1561) 224 AT 273 C – H per GALINJE, JSC who said:-
“In Olukoya v. Ashiru (2006) All FWLR (Pt. 322) 1479 at 1514 paras. E-H; (2006) 11 NWLR (Pt. 990) 1, this Court held that an equitable owner in possession cannot be overridden by a subsequent grantee of a legal estate. This is what my brother, Ogbuagu, JSC, 38, paras. F-H who read the lead judgment said:
“As rightly submitted in the respondent’s brief at page 8, the Jalingo Local Government having lawfully granted the land in dispute to the respondent, in 1981, it was left with nothing to grant to the appellant subsequently in 1983 during the subsistence of the grant to the respondent… so that, if there is proof that money was paid for the land coupled with an entry into possession it is sufficient, to defeat the title of a subsequent purchaser of the legal estate, if and provided that the possession, is continuously maintained … Thus, if even it is coupled with possession, it cannot be overridden by a legal estate.”
See Ogbu & 4 Ors v. Ani & 4 Ors (1994) 78 SCNJ (Pt. 11) 363; (1994) 7 NWLR (Pt. 335) 128, Soremekun v. Shodipo (1959) LPELR 30, Orasanmi v. Idowu (1959) 4 FSC 40; (1959) SCNLR 97, Oshodi v. Balogun & Ors. (1934) 4 WACA 1.
Clearly, the right of occupancy available to the appellant over the disputed property was not automatically extinguished by Section 5(2) of the Land Use Act by the purported sale and subsequent grant of a statutory right of occupancy over the same property to the 3rd and 4th respondents. To allow such an injustice, is to allow those in authority to benefit from their wrong actions. Rivers State Government cannot determine a contract in which it is a party and then take certain benefit arising therefrom leaving the party aggrieved without any remedy.”
At page 284 C – G AUGIE, JSC said as follows:-
“In Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326 at Pp. 347-348 paras. H-A this Court per Iguh, JSC, hit the nail right on the head, as follows-
“Where two contesting parties trace their title in respect of the same piece of land to the same grantor, the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor. The reason is obvious as a grantor having successfully divested himself of his title in respect of the disputed piece or parcel of land by the first grant would have nothing left to convey to a subsequent purchaser under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him.”
2. ALHAJI A. M. KOLO V. ALH. M. LAWAN (2018) 13 NWLR (PART 1637) 495 at 516 E – H to 517 A – C per ARIWOOLA JSC who said:
“The law is that the plaintiff in an action for declaration of title is required to satisfy the Court by credible evidence but not by admission in the pleadings of the defendant, of his right to the declaration he claims. See Bello v. Eweka (1981) 1 SC 101. The reason being that the grant of a declaration by the Court is discretionary. See Kodilinye v. Odu 2 WACA 336, Akinola & Ors v. Oluwo & Ors (1962) WNLR 135; (1962) 1 SCNLR 352, Sunday Temile & Ors v. Jemide Awani (2001) 9 SCM 160 at 165; (2001) 12 NWLR (Pt. 728) 726.
It is the appellant who relied on the Certificate of Occupancy (Exhibit C) granted to him by the Borno State Government in 1996 that needed to have provided credible evidence to prove his said title on the Certificate of Occupancy. Generally, a Certificate of Occupancy properly issued to a holder presupposes that the holder is the owner – in exclusive possession of the land it relates to. The said certificate also raises the rebuttable presumption that at the time of its issuance, there was not in existence, a customary owner whose title has not been revoked. In which case, where it is proved by evidence that someone else has a better title to the said land before the issuance of the certificate of occupancy, the said certificate becomes void and shall be liable to be revoked. See Grace Madu v Dr. Betram Madu (2008) 6 NWLR (Pt.1083) 296; (2008) 2-3 SC (Pt.11) 109; (2008) LPELR – 1806 SC.
In the instant case, the only root of the title upon which the appellant based his claim to ownership of the land in dispute is the grant by the Borno State Government, which gave him a Certificate of Occupancy. Whereas, there was in existence a prior purchase by the respondent. It is a misconception to say the least, for the appellant to contend that the respondent ought to have tendered his documents as evidence of purchase of the land after he had called his vendor who gave uncontroverted and credible evidence of his root of title and sale to the respondent. In otherworld, there is ample evidence that DW1 the vendor to the respondent, had customary right of occupancy, which, before the coming into force of the Land Use Act in 1978, he had passed on to the respondent legally. The subsequent right of occupancy purportedly granted by the State Government to the applicant will be void not having caused a revocation of the originally deemed grant. Otherwise, the subsequent grant will be in breach of the provisions of the Land Use Act and shall be liable to be declared void.” (Underlined mine)

Again, I must say that the case of the Appellant is also made worse by the 2nd – 6th Respondents who did not appeal all the damnifying findings the lower Court made against them. They are deemed to have admitted that the title of the Plaintiff to the land in dispute and the Certificate of Occupancy issued in favour of the 1st Respondent since 1988 remains valid and subsisting and thus the 2nd – 6th Respondents’ purported revocation of the right of occupancy held over the land by the Respondent is invalid, null and void. The said 2nd – 6th Respondents are deemed to have admitted in toto the findings of the lower Court against them. See
1. APC V HON. D. I. KARFI & ORS (2018) 6 NWLR (PT. 1616) 479 AT 519 H per EKO, JSC who said:-
“On 11th March, 2015, the three appellants herein lodged their appeal to the Court of Appeal (the lower Court) challenging the decision of the Federal High Court. (NEC, in spite of the orders of the Federal High Court directing it not to recognize or otherwise deal with the candidate of the APC, 1st appellant, in the general election and/or placing the 3rd appellant or any other candidate of the APC on the ballot in consequence of the inconclusive primary election of 2nd December, 2014, did not appeal the decision of the Federal High Court. I need only re-state or emphasize the trite principle of law that decisions of Court not appealed against remain valid, binding, subsisting and taken as acceptable between the parties until the decision is set aside. See Akere v. Governor, Oyo State (2012) 50 11 NSCQR 345 at 414 – 415; (2012) 12 NWLR (Pt. 1314) 240; LSDPC v. Purification Tech. Ltd. (2012) 52 r NSCQR 274 at 309.”
2. MRS AISHA ABDURAHAMAN & ANOR VS MRS SHADE THOMAS (2019) 12 NWLR (PART 1685) 107 AT 124H TO 125 A – C per EKO, JSC who said:-
“Neither in the notice of appeal nor in their brief did the appellants make any, attempt, albeit feeble, to attack the foregoing decision, that crucially was fatal to their case. The law, as re-stated by Musdapher, JSC, in Jimoh Michael v. The State (2008) LPELR-1874 (SC) AT page 7; (2008) 13 NWLR (Pt. 1104) 361, is that where there is an appeal on some points only in a decision, the appeal stands or falls on those points appealed against only, while the other points or decision not appealed remain unchallenged. Such point or decision unchallenged is taken as acceptable to the parties, particularly the appellant. In other words, a finding or decision of the Court below not challenged on appeal must not, rightly or wrongly be disturbed by the appellate Court. See Oshodi v. Eyifunmi ​(2000) LPELR – 2805 (SC); (2000) 13 NWLR (Pt. 684) 298, Nwabueze v. Okoye (1988) 2 NWLR (Pt. 91) 664. And as I stated elsewhere: a party to the proceeding who does not appeal a particular adverse finding or decision, or who takes no steps to have it reviewed is deemed to accept the verdict against him. See Ezerioha & Ors v. Ihezuo (2009) LPELR-4122 (CA). A finding of fact or point in a decision not appealed persists and remains binding on the parties to the suit.”

All the said findings against the 2nd – 6th Respondents and Appellant are consistent with the evidence on record and militate greatly against the appeal of the Appellant.

It is also on record that the 2nd – 6th Respondents were running with the hare and hunting with the hounds.

Instead of playing the traditional role of a Respondent to support the judgment of the lower Court they played the ostrich in their Brief of Argument. In the said Brief of Argument, they are in one breath supporting the case of the Appellant and ended by submitting as follows:-
“4.37 We commend to your Lordships Exhibit P1 and submit that the 1st Respondent did not comply with the conditions for the grant of the certificate of occupancy as the 1st Respondent failed to even produce any application for building plan, approval or even an approved building plan and as such any structure on the illegal. See Section 7 of the Federal Capital Territory Act and the relevant sections of the Urban and Regional Planning Act.
4.38.1 Finally, may we seek the leave of my noble Lords to submit that we are aware of the position of the law that the primary duty of the Respondents on appeal is to defend the judgment of the Court which is challenged and that a respondent who seeks either the setting-aside of the finding of the lower Court or the complete reversal of the finding by an appellate Court can only do so through a substantive cross-appeal. See FIICHARLES ORGAN & 14 ORS V. NIGERIAN LIQUEFIED NATURAL GAS LIMITED & ANOR (2014) ALL FWLR (PART 723) PAGE 1851-1852 PARAS H AND A-G, JENKINS GIANE DUVIE GWEDE V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2015) ALL FWLR (PART 767) 644-645 A-H & A-C COMRADE ABDULLAHI MOHAMMED TANKO V. BARR. M. A. ABUBAKAR & 2 ORS (2019) 1 NWLR (PART 1653) 289 – 290 G – B PER M. D.
4.39 The 2nd – 6th Respondents have thus taken the hint of the Court and have proceeded accordingly.
5.0 CONCLUSION
5.1 Based on the foregoing position of the law, we hereby urge my noble Lords to do justice to this appeal as the 2nd – 6th Respondents ready to abide by the decision of the Court in relation to the issues submitted in this appeal. My Lords, we are grateful.”

The 2nd – 6th Respondents it must be noted did not file Notice of Cross-Appeal or an appeal or Respondents’ Notice in this appeal.

They (2nd-6th Respondents) cannot be allowed to take diametrically opposed position in this appeal. The Brief of Argument filed by the 2nd – 6th Respondents on 11/10/2019 and deemed filed on 11/10/2021 ought to be struck out and the same is hereby struck out as having been filed in breach of the Court of Appeal Rules and settled position of the law as acknowledged by the 2nd – 6th Respondents. See the case of:
1. HAJIA YINUSA BAKARI V DEACONESS (MRS) FELICIA OGUNDIPE & ORS (2021) 5 NWLR (PART 1768) 1 AT 34 C- H per RHODES-VIVOUR, JSC who said:-
“At the hearing of the appeal on 16 December, 2019, the appellant was absent and unrepresented.
His brief was taken as adopted.
D. Anieh, Esq., now appeared for the 2nd and 3rd respondents. He conceded that his brief was irregular.
Learned counsel for the 3rd respondent now E. Fatogun, Esq., adopted the 1st respondent’s brief filed on 28 June, 2018. He urged the Court to strike out the joint brief of the 2nd and 3rd respondents since the argument in the brief does not support the judgment of the trial Court. He further urged the Court to dismiss the appeal.
A respondent’s role in an appeal is to defend the judgment on appeal, and not attack it.
On the other hand, it is the duty of the appellant to attack the judgment. After all he filed the appeal because he believes it is wrong. If a respondent is not satisfied with the judgment on appeal he should file a cross appeal or respondents’ notice. See New Nig. Bank Plc v. Egun (2001) 7 NWLR (Pt. 711) p.1, Ibe v. Onuorah (1999) 14 NWLR (Pt.638) p.340.
It must be noted, though that a cross-appeal and a respondents’ notice cannot co-exist.
When this appeal was heard on 16 December, 2019 learned counsel for the 2nd and 3rd respondents, D. Ameh informed the Court that his brief was irregular. He did not say how his brief was irregular. Rather than defend the judgment of the Court of Appeal, the 2nd and 3rd respondents filed a joint brief attacking the judgment.
In their conclusion, they pray this Court to set aside the judgment of the Court of Appeal and in its place restore the judgment of the trial Court dismissing the claims of the 1st respondent.
Their role is fundamentally wrong. Their prayer ought to be for this Court to dismiss the appeal. Since the 2nd and 3rd respondents abandoned their role as respondents their joint brief would not be considered. It is hereby struck out.”

In the result, issue 3 is resolved against the Appellant.

On issue 4 which relates to whether the award of N40,000,000.00 in favour of the 1st Respondent against the Appellant and 2nd – 6th Respondents was not excessive, perverse and contrary to all know legal principles of law having regard to the pleadings.

It is settled that the guiding principle of law is that award of damages is to provide restitution to a Plaintiff where it is established that the wilful or negligent act of the Defendant has caused damages to the Plaintiff. It is designed to assuage the loss occasioned by the Defendant’s tortuous act. It is for the purpose and the position of the law that the Defendant was compensated for the damages and loss caused to the Plaintiff by the award of N40,000,000.00.

The Appellate Court will not interfere with award of damages imposed upon a defendant by the lower Court except in the circumstances explained and laid down by the apex Court in numerous cases. The circumstances are:
1. Where the Court acted under wrong principles of law.
2. Where the Court acted in disregard of applicable principles of law.
3. Where the Court acted in the misapprehension of facts.
4. Where the Court took into consideration irrelevant matters and disregarded relevant matters while considering its award.
5. Where injustice will result if the Appellate Court does not act.
6. Where the amount awarded is ridiculously low of ridiculously high that it must have been an erroneously estimate of the damages. See:
1. ACB LTD V. APUGO (2001) 5 NWLR (PT. 707) 653;
2. BB APUGO & SONS LTD V. OHMB (2016) LPELR 40598 1 AT 61 – 62;
3. SPDC LTD V. TIEBO (2005) LPELR 3202 – 1 AT 25;

4. ODUWOLE V WEST (2010) LPELR – 2763 1 AT 15.

The 1st Respondent as Plaintiff pleaded copiously in paragraphs 12 – 21 of the Statement of Claim the monumental damages caused by the Appellant and 2nd to 6th Respondents when the latter’s officials and agents demolished the 1st Respondent properties recklessly in grave violation of the law without any service of Notice of Revocation of his Right of Occupancy over the land in dispute. The 1st Respondent pleaded and tendered documents to show how the said officials of 2nd to 6th Respondents wantonly demolished and destroyed the houses/ buildings erected on the land in dispute by 1st Respondent.

The 2nd to 6th Respondents and the Appellant did not lead any credible evidence to deny the allegation of the 1st Respondent who tendered Exhibits P2 and P3 issued by the 2nd to 6th Respondents and the fact threat contained in Exhibits P2 and P3 were carried out by the 2nd to 6th Respondents and their agents. They destroyed the Respondent’s properties. I agree with the lower Court that in the circumstance of this case an award of N40,000,000.00 as general damages and aggravated damages against the Appellant, 2nd to 6th Respondents by the lower Court for trespass and unlawful destruction of the Plaintiff’s/1st Respondent’s houses and other structures on Plot 864 the subject matter of this action is justified.

Issue 4 is resolved against the Appellant.

Consequently, it is hereby adjudged that the appeal of the Appellants is unmeritorious and the Appellant’s appeal is hereby dismissed.

The judgment of the FCT High Court delivered by HON. JUSTICE O. A. ADENIYI on 4th May, 2016 is HEREBY AFFIRMED.

The Appellant shall pay N100,000.00 (One Hundred Thousand Naira) as costs to the 1st Respondent.

HAMMA AKAWU BARKA, J.C.A.: I had the singular honour of being availed a copy of the judgment just read by my learned brother Peter Olabisi Ige JCA, with which I am in full agreement.

My learned brother meticulously considered all the issues to my satisfaction leaving no room upon which to say more. I adopt the judgment as mine and accordingly dismiss the appeal for being unmeritorious. The judgment of O.A. Adeniyi J, of the High Court of the Federal Capital Territory Abuja in suit with No. FCT/HC/CV/630/2014 delivered on the 4th day of May, 2016 is hereby affirmed. Appellant to pay costs of N200,000 to the Respondents.

Appeal dismissed.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA.

I equally agree with the reasoning and the conclusion that the appeal is unmeritorious and it is accordingly dismissed.

I affirm the judgment of the FCT High Court delivered by Hon. Justice O. A Adeniyi on 4th May, 2016. I abide by the orders of my Lord in the lead judgment including order as to costs.

Appearances:

F. M. ODUMA, ESQ. For Appellant(s)

F. R. ONOJA, with him, H. T. NUHU (MRS) – for 1st Respondent

DR. OLUKAYODE AJULO, with him, SAMUEL AKINOLA OLADIMEJI – for 2nd – 6th Respondents For Respondent(s)