NIGERIAN INSTITUTE FOR TRYPANOSOMIASIS RESEARCH v. GAYA & ANOR (2020)

NIGERIAN INSTITUTE FOR TRYPANOSOMIASIS RESEARCH v. GAYA & ANOR

(2020)LCN/14153(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Tuesday, May 19, 2020

CA/K/134/2018

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

NIGERIAN INSTITUTE FOR TRYPANOSOMIASIS RESEARCH APPELANT(S)

And

1. ALH. ISAH ALIYU GAYA 2. PATRICIA WABOKE RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT CAN PROCEED TO ADDRESS THE MERIT OF THE CASE IN THE JUDGMENT WITHOUT FIRST ADDRESSING THE ISSUE OF JURISDICTION OF COURT

Where the issue touches on jurisdiction, that has to be resolved first even in its judgment because the Court cannot proceed to address the merit of the case in the judgment without first addressing the issue of jurisdiction of Court. See Akinbobola vs. Plisson Fisko Nig Ltd(1991) 9 SCNJ 258; Riruwai vs. Shekarau (2009) ALL FWLR (Pt. 461) 9751; Nwadike vs. Ibekwe (1987) NWLR (Pt. 67) 718 or LPELR-2087 (SC). PER HUSSAINI, J.C.A.

WHETHER OR NOT A CLAIMANT MUST ESTABLISH THE IDENTITY OF LAND CLAIMED IN A CLAIM FOR DECLARATION OF TITLE TO LAND

In a claim for declaration of title to land the claimant must not only prove his root of title he must establish the identity of the land claimed. See Balogun vs. Akanji (1989) 1 NWLR (Pt. 70) 301, Oke Bola vs. Molake (1975) 12 SC (reprint) 46; Owhonda vs. Ekpechi (2003) 9-1- SC 1; Titilayo vs. Olupo (1991) 7 NWLR (Pt. 205) 19 or (1992) 6 SCNJ 282; Odiche vs. Chibogwu (1994) 7-8 SCNJ 317. The onus is on the Plaintiff, in this case the 1st Respondent to establish his entitlement to the declaration sought by cogent and credible evidence. He must do so on the strength of his case and not on the weakness of the defendant’s case, Ayauwale vs. Ochugami (2011) 18 NWLR (Pt. 1278) 328, 341. It is also trite that the plaintiff must establish one of the five (5) accepted ways of proving title to land as laid down in Idundun vs. Okumagba (1976) 9-10 SC 140. PER HUSSAINI, J.C.A.

WHETHER OR NOT PRODUCTION OF DOCUMENTS OF TITLE IS ONE OF THE METHODS RECOGNIZED FOR THE ESTABLISHMENT OF OWNERSHIP OF LAND

Indeed, production of documents of title is one of the methods recognized for the establishment of ownership of land as held in Idundun vs. Okumagba (supra); Ayanwale vs. Odusami(supra). The five (5) methods recognized are; proof:-
(i) By evidence of traditional history
(ii) By production of title documents which are duly authenticated
(iii) By acts of selling, leasing renting out all or part of the land or farming on it or on a portion of it.
(iv) By acts of long possession and enjoyment of the land
(v) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.

However, the mere production of documents of title in evidence does not automatically lead to declaratory order of title being made by the Courts, as such documents of title must fulfill certain conditions before being acted upon by the courts, namely:-
(a) The document must be genuine or valid
(b) The documents must have been duly executed, stamped and registered
(c) The grantor has the authority and capacity to make the grant
(d) That the grant has the effect claimed by the holder of the instrument
(e) That the grantor has in fact what he proposes to grant. PER HUSSAINI, J.C.A.

WHETHER OR NOT A PURCHASER OF LAND ACQUIRES EQUITABLE INTEREST IN THE LAND AFTER THE PAYMENT PRICE HAS BEEN MADE TO THE VENDOR

“The well laid down positions of the law is that where a purchaser of land has paid the price for the land to the vendor, he immediately acquires equitable interest in the land and this, is as a good legal estate. The equitable interest so acquired can only be destroyed by a purchaser for value who had no notice of the existing…” Per Rhodes-Viviour, JSC. PER HUSSAINI, J.C.A.

AN AGENCY RELATIONSHIP

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The 1st Respondent in this appeal case was the Plaintiff at the High Court of Kaduna State. He took out a Writ of Summons against the Appellant and the 2nd Respondent as defendants vide Suit No. KDH/Z/9/2014 filed on the 7th January, 2014. His claim by the Amended Writ of Summons and the Statement of Claim are for:
(i) A declaration that the plaintiff is the rightful, beneficial, bonafide owner of all that piece and parcel of land consisting and measuring approximately 881.923 (0.280ac) located, situate, lying and being at plot No. NT 84 Shehu Laminu Residential Lay out Kaduna under the N.I.T.R site and Service Scheme at Unguwar Rimi Lay out Kaduna North Local Government Area of Kaduna State the corner of which are marked on the ground by property beacons KDNT.5444 KDNT.5443 KDNT.5434 and KDNT 5435 on the survey plan No. NT 84 without the knowledge of the Plaintiff in this suit (sic).
(ii) An order of perpetual injunction restraining the defendants, themselves, their agents, servants, privies and or assigns or otherwise acting through any person whosoever in whatever manner or form from

entering, tempering, excising and committing acts of trespass on the said land.
(iii) N1,000,000.00 General damages against the defendant their agents, servants, privies and or assigns or otherwise acting through any person whosoever in whatever manner from trespassing on the said piece and parcel of land.

The Appellant and the 2nd respondent denied the claim vide the respective statement of defence filed on their behalf. At the hearing of the case, parties respectively elicited evidence of witnesses and tendered documents which were admitted as Exhibits. A summary of the facts leading to this case can be gleaned from evidence on the printed record. The Appellant (NITR) had commissioned a site and service scheme to allocate plots to her staff and the general public based on which one Yazeed Mohammed and the 2nd Respondent among many others applied for space. Yazeed Mohammed was allocated Plot No. NT. 84 while the 2nd Respondent was allocated Plot No. NT93B. The 1st Respondent claimed that plot No. NT84 had been sold to him by the allotee Yazeed Mohammed but that the 2nd Respondent was encroaching into his plot of land, No. NT84 hence the action

instituted by him against the appellant and the 2nd Respondent. The appellant who is the owner of the site and the Service Scheme stated that the 1st respondent is not the allottee of the Service Scheme neither did he acquire title to any plot in that he never paid the premium for the allocation of the plot claimed by him. The case of the appellant is also to the effect that the scheme was resurveyed making the plots to shift and that both plots NT93B and NT 84 are existing inside the site and Service Scheme.

At the close of evidence, parties/counsel gave their final submissions or remarks but the trial Court in a considered judgment delivered on the 21st April, 2016 found in favour of the 1st respondent in terms of the Order contained in the Judgment at page 201 of the record of appeal namely:
(i) The Plaintiff is the rightful, beneficial, bona fide owner of all the piece and parcel of land consisting and measuring approximately 881.923 M2 (0.210ac) located, situate, lying and being at Plot No. NT84 Shehu Laminu Road Residential Layout Kaduna under the NITR Site and Service Scheme at Unguwar Rimi in Kaduna North Local Government Area of Kaduna

State; the corner are marked on the ground by property beacons KDNT. 5444, KDNT. 5443 KDNT. 5434 and KDNT. 5435 on the Survey Plan No. NT84 without the knowledge of the Plaintiff in this suit.
(ii) The Defendants are hereby perpetually restrained by themselves, their agents, servants, privies and assigns or otherwise acting through any person whosoever in whatever manner or form from entering, tempering, exercising and committing act of trespass on the said land.

Against this judgment and order, the appellant has appealed to this Court vide the Original Notice of Appeal dated and filed on the 22nd April, 2016. By the Amended Notice of appeal filed on the 17th February, 2018 the appeal to this Court is on seven (7) grounds which, shorn of the particulars are as follows:
GROUND ONE
The learned trial judge erred in law when he held that the 1st respondent (plaintiff) has proved a better title than all the defendants granting all the reliefs of the 1st respondent.
GROUND TWO
The learned trial judge erred in law when he refused to determine and grant the appellant’s preliminary objection on the ground that he will rely only on

factual happening instead of legal technicalities in arriving at his decision.
GROUND THREE
The learned trial Judge erred in law when he held that the defendants were unable to prove that the appellant’s site and service scheme was resurveyed.
GROUND FOUR
The learned trial Judge erred in law when he held that the survey plan tendered and relied upon by the 1st respondent at the lower Court is valid.
GROUND FIVE
The learned trial Judge erred in law when he held that the allocation of the 1st respondent in respect of the property in dispute being first in time is the title to be believed.
GROUND SIX
The learned trial judge erred in law when he held that during the visit to locus in quo to the disputed property only the plaintiff’s beacon were easier to establish.
GROUND SEVEN
The judgment is against the weight of evidence before the lower Court.

The appellant and the 1st respondent both filed and exchanged their briefs of argument and adopted same when the appeal came up on the 24th February, 2020 for hearing. The 2nd respondent had not filed any brief of argument.

From the brief of argument for the appellant, the following three (3) issues can be discerned as distilled for the determination, namely:
“(1) Was the learned trial Judge right when he refused to determine the Preliminary Objection raised by the appellant before delving into the main issues as it relates to the claims of the 1st respondent/plaintiff (Ground 2).
(2) Was the lower court right when it assumed jurisdiction, entertained the 1st respondent/plaintiff’s claims and entered judgment in his favour when title has passed to the 1st respondent/plaintiff to warrant him to sue at the lower court (Ground 1).
(3) Was the learned trial judge right when he granted all the reliefs in the 1st respondent’s statement of claim and awarded title to the land in dispute to the 1st respondent when he had not proved his claim for title to the land in dispute on the balance of probabilities (Ground 3, 4, 5, 6 and 7).”

The 1st respondent on his part at page 4 of his brief of argument identified two (2) issues for determination thus:
“(1) Whether the Judgment of the trial Court determined the Preliminary Objection raised by the Appellant (Culled

from Ground 2 of the Amended Notice of Appeal).
(2) Whether the trial Court was right when it held that the 1st respondent had proved his claim for title to the land dispute on the balance of probabilities (Culled from Grounds 1, 3, 4, 5, 6 and 7 of the Amended Notice of Appeal).”

The two (2) issues formulated in the 1st respondent’s brief of argument capture the live issues presented in this appeal and I adopt or abide by same in addressing this appeal. Indeed the 1st respondent’s issue No. 2 has incorporated in it, issues 1 and 2 in the appellant’s brief of argument which shall be considered together as Issue No. 1. Appellant’s Issue No. 3 is similar to 1st respondent’s Issue No. 2.

COUNSEL’S ARGUMENT OR SUBMISSIONS:
ISSUE NO. 1
Whether the Judgment of the trial Court determined the Preliminary Objection raised by the Appellant (Culled from Ground 2 of the Amended Notice of Appeal).

The contention or submission made under this head, relate to the Preliminary Objection raised and argued by the appellant as the 1st defendant before the trial Court which objection bother on issue of

jurisdiction of the trial Court to entertain the claim before it. It was the contention by the appellant that the issue of jurisdiction having been raised and addressed by counsel, the trial Court had a duty to make pronouncement on it in its judgment before proceeding to address any other question but that the trial Court failed in its duty to do so, and this failure to address the question deprived the appellant the right to fair hearing. We were referred to the decision in BASF Nig Ltd vs. Faith Ent. Ltd (2010) 4 NWLR (Pt. 1183) 104, 119; Ibrahim vs. Gaya & Ors (2002) 13 NWLR (Pt. 784) 267, 297; Vaswani Trading Co. vs. Saralakh & Co (1972) 12 SC 77; National Assembly & Ors vs. Cee Chris Investment Co. Ltd (2007) LPELR – 4575. The Court of Appeal, it is argued, can revisit the issue covered by the appellants Preliminary Objection more so that the trial court failed to make pronouncements on the matter. We were referred to Section 15 of the Court of Appeal Act and the decision in Ojoh vs. Kamalu (2005) 18 NWLR (Pt. 958) 523, 557; Cookey vs. Fombo (2005) 15 NWLR (Pt. 947) 182, 200. We were further referred to the statement of defence of the

appellant at pages 120-127 of the record and the appellant’s final written address at pages 175-184 of record where it was argued or contended that the trial court had no jurisdiction to hear the case for the reason that:-
(a) The Plaintiff (1st respondent) had no locus standi to institute the suit.
(b) The Plaintiff (1st respondent) has no reasonable cause of action against the 1st defendant (appellant).
(c) There are no facts in the plaintiff’s statement of claim alleging any wrong against the 1st defendant.
(d) The Plaintiff is not claiming any relief against the 1st defendant in the Writ of Summons and the Statement of claim.

The Appellant’s counsel further referred us to the statement of claim of the 1st respondent to submit that the plaintiff/1st respondent cannot institute the action as he did considering that the receipt of purchase (Exh. 1) which the plaintiff relied on, was issued by Narudeen & Coy. Nig Ltd ; which has nothing to do with the original allottee of the land through whom the Plaintiff/1st respondent claim title to the property. It is further argued that the original allottee of Plot Nt.84 by name Yazeed

Mohammed is not the same as the 1st respondent, the claimant before the trial Court whom it is argued, was not issued with any title document in his name. To that extent, it was submitted that there was no direct transaction between the plaintiff and Yazeed Mohammed to clothe him with the standing to institute action. It was argued that the Court below despite all the submissions made before it, failed or refused to consider those preliminary points in its Judgment as they relate to exercise of jurisdiction by the Court. It was further argued that had the trial Court addressed those preliminary points, the Court would have struck out the suit.

ISSUE NO. 2
In relation to the 2nd issue i.e the whether the 1st respondent had proved his claim at all to warrant the judgment given in his favour, the appellant through his counsel unequivocally submitted that the claim had not been proved. A claimant, it is argued, who seeks for a declaration of title can prove his case by any of the 5 (five) methods listed in Ayanwale vs. Odusami (2011) 18 NWLR (Pt. 1278) 328, 341 and where the claim was based on production of document of title the trial Court has a duty to

satisfy itself that the document so produced met certain conditionalities presented in Ayanwale vs. Odusami (supra)

In reference to Exhibits 1 and 2 relied upon by the 1st respondent/plaintiff as document of his title over plot NT 84, it is argued that Exhibit 1 was/is a receipt issued by Nurudeen & Co Nig Ltd in the sum of N6,000,000.00 being payment for Plot NT 84 (NITR land in Kaduna). It is argued that Exhibit 1 cannot confer title to the land on the Plaintiff/1st respondent, the same not having seen executed between the Original owner and the Plaintiff. Rather Exhibit 1 was/is a mere receipt issued by Nurudeen and Coy Nig Ltd, who itself had no power to transfer the land to the plaintiff, in absence of any written authorities to do so. He relied on Briggs vs. C. L. O. R. S. N (2005) Pt. 938) 59,99, hence the 1st respondent has no title to the property in dispute let alone to seek an order for declaration of title, reliance being placed on the decision in Usman vs. Ajibulu (1977) 6 NWLR (Pt. 501) 14, 31. He must trace his root of title to the person whose title has been established.

Exhibit 1 it was argued, did not meet the requirement of transfer of title as presented in Folarin vs. Durojaiye (1988) LPELR-1286 page 16-17, that is to say that a valid sale and payment of money is accompanied by acknowledgment of receipt and execution of deed of conveyance.

Aside from the fact that Exhibit 1 not being a document upon which transfer of title can be made, it was further argued that the document was also not stamped, registered or duly executed in line with Section 2 of the Land Instrument Registration Law of Kaduna State, Cap 85 Laws of Kaduna State, being an “Instrument” within the meaning of the law. Being an instrument Exhibit 1 needed to be registered in line with Section 15 of the same law. We were urged to strike out Exhibit 1 as a void document in line with the decision in Fasina vs. Ogunkayode (2005) 12 NWLR (Pt. 938) 147, 164. It is further argued that by dint of the resurvey of the Site and Service Scheme as attested to by the 1st defendant/appellant in the statement of defence and Evidence on Oath, the Plots have shifted from their original position when the initial allotment was made to the 2nd respondent and one Yazeed Mohammed, among others. We were urged to so hold

so far as that evidence of shifting in the position of the plots coming form DW1 was not contradicted under cross-examination.

On the validity of the Survey Plan (Exhibit 5), and the Plan attached to Exhibit 2, it was submitted for the appellant that the said documents were inadmissible, the same not having met with Section 9 of the Land Instrument Registration Law, Cap 85 of Kaduna State, Section 3(1) and 4(1) of the Surveyors Law in terms of the preparation, sealing and signing of those documents by a Licensed Surveyor and Certification by Surveyor General. We were referred to the decision in Ariyo vs. Adewusi (2010) 15 NWLR (Pt. 1215) 78, 89 and urged to resolve Issue No. 2 in favour of the appellant and allow this appeal.

The response of the 1st respondent on issues 1 and 2 are contained at pages 4-16 of the 1st respondent’s brief of argument. Relative to issue No. 1, the 1st respondent arguing to the contrary, denied the suggestion made to the effect that the trial court failed or refused to make pronouncements over the Preliminary Objection taken by the appellant at the trial Court. While agreeing with the submission made that issue of

jurisdiction usually raised fundamental questions for which priority attention must at all times be given to by the Courts, he would not however agree with counsel for the appellant that the Court below failed to address issues covered by the Preliminary Objection. On this point we were referred to the record of judgment particularly at page 257-259 to debunk this assertion. Rather we were urged to hold that appellant’s Preliminary Objection raised vide the statement of defence was duly determined in the judgment along with arguments taken on the merit of the case. We were urged to resolve Issue 1 in favour of the 1st respondent.

On the question whether the 1st respondent proved his claim at all for a declaratory order for tile to Plot NT 84, the response from the 1st respondent was in the affirmative hence the trial Court, it was argued, was right to found in his favour. It was argued that by reason of the various documents tendered by the 1st respondent and his evidence showing various exercise of acts of ownership, possession and control of the land in question, without disturbance, he (the 1st respondent) is entitled to the Judgment and order

made in his favour especially when evidence led to that effect was not challenged, given the decision in Okorocha vs. Peoples Democratic Party (2015) ALL FWLR (Pt. 786) 530, 572; Bakare vs. Dada (2017) ALL FWLR (Pt. 867) 557, 581; Oyadare vs. Keji (2005) ALL FWLR (Pt. 247) 1583, 1598.

On the question of Exhibit 1 not being stamped, registered or executed by the original allottee, as submitted by the appellant, we were urged to hold that Exhibit 1 being a purchase receipt is not a registrable instrument neither does it require stamping or registration. The case of Sankey vs. Onayifeke (2014) ALL FWLR (Pt. 749) 1034, 1068 was cited and relied on. On the question that Nurudeen & Co. Nig Ltd who issued Exhibit 1 does not have title to transfer, to the 1st respondent, we were referred to the evidence of DW1. Given the fact that Nurudeen & Co. Ltd was the authorized agent of the appellant who was appointed to manage the appellant’s site and service scheme and also Plot No. NT 84 i.e. the plot allocated to Yazeed Mohammed, meant that the firm of Nurudeen & Co. Ltd acted within its managerial powers over the site and service scheme belonging to the appellant when it issued Exhibit 1.

On the issue of the locus standi of the 1st respondent, it was argued with reliance placed on the decision in Moses vs. Onu (2013) ALL FWLR (Pt. 674) 153, 178 that by reason of Exhibit 1, being evidence of payment of purchase price, indicate that there was an agreement for sale of land and that consideration for sale was paid by the 1st respondent which conferred on him the necessary locus standi to institute the suit. We were further referred to decision in Gbadamosi vs. Akinloye (2014) ALL FWLR (Pt. 717) 677, 701 where it was held that “a purchaser of land who paid the price on the land to vendor immediately acquires equitable interest in the land and this is as good as a legal estate”.

On the issue of the site and service scheme being resurveyed by the Director Generals Office leading to the shifting of the position of the plots earlier surveyed by Nurudeen & Co. Nig. Ltd, and document relating to the new survey issued, it was argued per contra that the said new documents though pleaded were never tendered in evidence and this failure to tender the resurveyed plan raises the presumption that the

document was unfavorable to the appellant. We were referred to Agbonran II vs. Ayodele (2002) ALL FWLR (Pt. 86) 522 532. We were urged to resolve Issue No. 2 in favour of the 1st respondent and dismiss this appeal.

RESOLUTION OF ISSUE NOS. 1 AND 2
Given the record of appeal before us, there can be no question that the appellant indeed challenged the jurisdiction of the trial Court to entertain the suit brought before it on account of Plaintiff’s/1st respondent’s lack of locus standi to institute the action, among other reasons. This point was taken up during the trial in the evidence elicited through PW1 during cross-examination as at pages 228-230 of the record. The appellant through his counsel also addressed this point before the trial Court in their closing remarks hence the Preliminary Objection having been raised and taken automatically become an issue before the Court where it was raised. It is the duty of the Courts to consider and give its decision concerning any issue or question raised at the trial Court.

Where the issue touches on jurisdiction, that has to be resolved first even in its judgment because the Court cannot

proceed to address the merit of the case in the judgment without first addressing the issue of jurisdiction of Court. See Akinbobola vs. Plisson Fisko Nig Ltd(1991) 9 SCNJ 258; Riruwai vs. Shekarau (2009) ALL FWLR (Pt. 461) 9751; Nwadike vs. Ibekwe (1987) NWLR (Pt. 67) 718 or LPELR-2087 (SC).
The question here is whether the Court below indeed shirked in its duties and failed to address those questions preliminarily? Let us, for the moment look at the record of judgment of the Court below at pages 257-259 of the record. There the trial Court in its judgment found and held as follows:-
“A careful perusal of the claim of the plaintiff it is clear that is claiming to have bought a plot of land situate and known as NT 84 Shehu Laminu Road Unguwar Rimi in Kaduna North Local Government Area of Kaduna State which the corner is marked on the ground property beacons KDNT 5444, KDNT 5443, KDNT 5434 and KDNT 5435 measuring 881.923M2 (0.2180Ac). Another careful perusal of the case of the 2nd defendant. She is claiming a plot in the said site and service scheme or NITR at Unguwar Rimi Kaduna, which is situate and know as NT 93B block G with beacons KDNT

6558, KDNT 5433 and KDNT 5443 measuring 457.22M2 (0.1080Ac).
To a simple clear mind these two plots are different both in location and size. They are two distinct and different plots.
Each of them, the plaintiff and the 2nd defendant has tendered in documents to back up their title. Interestingly all the parties including the 1st Defendant have annexed Exhibit 6 to their pleadings.
Exhibit 6 is having the list of people whom have been allocated plots on the said service scheme at NITR Kaduna. Person No. 37 on the said list of allottees is one Yazeed Mohammed. This is the person whom the Plaintiff is claiming to have derived his title from.
Exhibit 1 is a cash receipt date 25th November, 2008 indicating that the Plaintiff has paid, to Nurudeen the sum of N6,000,000.00 for NT 84 (NITR Land) Kaduna.
Having done this Nurudeen and Co. handed him over Exhibits 2 and 3 which are documents in respect of Yazeed showing that he has been conveyed land and indeed allocated approval by the Governor Board of NITR the land T 84 Shehu Laminu Road, U/Rimi, Kaduna.
With Exhibits 2 in particular, the plaintiff went ahead to obtain Exhibits 3 and 5

which are site analysis report and planning permission respectively. Exhibit 5 approved for the Plaintiff to develop fence as in Exhibit 4.
The Plaintiff led evidence to the erecting of this fence.
The 2nd Defendant has also presented to this Court Exhibit 7 which is conveyance of land allocation approval by the Governing Board of NITR under services scheme. In it she is allocated Plot No. 93B Block G NITR Residential Layout.
A careful comparison of both Exhibits 2 and 7 which are all CONVEYANCE OF LAND ALLOCATION APPROVAL BY THE GOVERNING BOARD OF NITR SITE AND SERVICES.
One will find the following differences: Exhibit 2 is in respect of Plot No. NT84 Shehu Laminu Road While Exhibit 7 is in respect of Plot No. NT 93B Block No. G.
Exhibit 2 is dated 10th of November, 2006 while Exhibit 7 is dated 16th February, 2007.
The Survey plans attached to these Exhibits 2 and 7 are also different.
What would have clear the difficulty in this matter is re-surveyed plan by Surveyor-General of the Federation which were to be relied upon by the defendants but they failed, refuse, neglected and or omitted to avail the Court of such vital

piece of evidence which could have titled the scale against the plaintiff.
The Plaintiff having led evidence of buying the Plot No. NT84 Shehu Laminu Road has been build a fence there shows he has taken physical possession of the land. As its rightly submitted by his counsel, he is an equitable title which can be dislodge only by cogent and convincing evidence. This could have been the re-surveyed plan by the Surveyor-General of the Federation which the Defendants have denied the Court of its befit. This is fatal to the case of the defendants.”
(Words Underlined for Emphasis only)
The 1st respondent led evidence to show that he bought plot No. NT84 over which he was issued a purchase receipt (Exhibit 1). Whether the procedure by which the 1st respondent was issued Exhibit 1 was right or wrong is not the issue at this initial stage but the fact that there is evidence of purchase of the land as led by him to confer on him the necessary locus standi to institute the case as he did. By those findings made at pages 257-259, the Court below adequately addressed those preliminary points in controversy hence the court cannot be faulted as having

failed to discharge its responsibilities. I resolve Issue No. 1 in favour of the 1st respondent and against the appellant.

The question posed under issue No. 2 is whether the 1st Respondent proved his case to entitle him to a declaratory order of title over plot NT 84 of the Site and Service Scheme of the appellant. The declaratory order sought is encapsulated in the claim of the 1st Respondent as earlier reproduced.

establish one of the five (5) accepted ways of proving title to land as laid down in Idundun vs. Okumagba (1976) 9-10 SC 140.

In the pursuit of the principles highlighted in the above mentioned decisions, the 1st respondent as plaintiff elicited evidence at the trial Court. Himself testified as PW1 and tendered five (5) documents as Exhibits.
It does not appear to me on the evidence on the printed record of appeal that the identity of the land in dispute is in issue whether from the perspective of the pleadings filed and exchanged by the parties or evidence led on it, rather what is in contention is whether the 1st respondent properly acquired title to plot NT 84 in the Site and Service Scheme of the Appellant.
From evidence led in support of the claim, as per the printed record, it is clear to me that the 1st respondent relied on Exhibits 1, 2, 4 and 5 produced and tendered by him as his title documents over plot NT 84. He said he acquired his title or interest through Yazeed Mohammed, the initial allottee of Plot NT 84 at the Site and Service Scheme of the appellant. The fact that Yazeed Mohammed is the original allottee of that Plot is not

being disputed. Exhibit 2 and indeed Exhibit 6 (approved allocation list, item 37) confirm this as much. So, by the Survey plan attached to Exhibit 2, plot NT84 is marked and delineated by beacons Nos. KDNT543, KDNT5434, KDNT5436 and KDNT5444 is identified, not just by the Survey plan, but the 1st respondent, in the course of proceedings at the locus in quo, further identified the land as the one enclosed within a wall fence. See the evidence of the Plaintiff at page 228 of record of appeal. By Exhibit 2 the land in dispute occupies a space of 881.923M (0.2180ac)

The 1st respondent in effect put up Exhibit 2 to trace his root of title. There is nothing wrong with the plaintiff/1st respondent in placing reliance on documents in his bid to prove his case for declaration of title. Indeed, production of documents of title is one of the methods recognized for the establishment of ownership of land as held in Idundun vs. Okumagba (supra); Ayanwale vs. Odusami(supra). The five (5) methods recognized are; proof:-
(i) By evidence of traditional history
(ii) By production of title documents which are duly authenticated
(iii) By acts of selling,

leasing renting out all or part of the land or farming on it or on a portion of it.
(iv) By acts of long possession and enjoyment of the land
(v) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.

From my analysis of the documents tendered by the plaintiff, now the 1st respondent, particularly the document admitted in evidence as Exhibit 1, show very clearly that the document was issued by Nurudeen & Co Nig.

Ltd to Alhaji Isa Aliyu Gaya on 25th November, 2008 on the payment of the sum of N6,000,000.00 (Six Million Naira) for NT 84 (NITR land) in Kaduna, i.e the plot of land allocated to Yazeed Mohammed vide Exhibit 2. Exhibit 1 thus, can properly be described as an acknowledgement of receipt of payment of money in the stated amount. Exhibit 1 for short, is a Receipt. It is evidence of payment of money over a given transaction. In considering whether or not such document (Receipt) is an “Instrument” within the meaning of Section 2 of the Land Instrument Registration Law Cap 85 Laws of Kaduna State, one necessarily has to look out for the purpose for which the document was tendered and admitted. If it was not tendered as evidence of title it cannot pass for an “Instrument” within the meaning of Section 2 of the Land Instrument Registration Law of Kaduna State. In Olowolaramo vs. Umechukwu (2003) 2 NWLR (Pt. 805) 537 the Apex Court held that where a document evidences Sale of land but from the proceedings the said document is/was tendered in evidence, not as an evidence of title, but simply to establish a fact which one of the parties has

pleaded then such a document does not qualify as an “Instrument” as defined in the Lands Instrument Registration Law and is therefore admissible in evidence without being registered. In the case of Ogunameh vs. Adebayo (2007) LPELR-8722 (CA); it was held thus:-
“A receipt for the purchase – money of land is not an “Instrument” but merely evidence that there was an agreement for sale and that the price had been paid by the purchaser …”
By his pleadings and evidence at the trial Court the 1st respondent in his Statement of Claim at paragraph 4 pleaded and tendered Exhibit 1 not as evidence of title but as evidence of payment of the purchase price for the land he acquired from Yazeed Mohammed. It thus follows that from the Plethora of decided cases on this point, the necessity of having to register such a document does not arise but the document (receipt) is admissible evidence and can be acted upon by the courts as such a receipt to create or establish equitable interest in favour of the person to whom it was issued in relation to the land in question, in this case, Plot NT 84 at the Site and Service

Scheme of the appellant. In Moses vs. Onu (2013) ALL FWLR (Pt. 674) 153, 178, it was held that the payment of purchase price by a party automatically confers a right on the party which right is enforceable unless otherwise determined. The Court further held that a purchase of land can also be proved by a purchase receipt or any other fact, which shows that such a transaction did take place. A purchase receipt as in Exhibit 1 is evidence that there was an agreement for the sale of land, and that the consideration for sale was paid by the purchaser. Also in Gbadamosi vs. Akinloye (2014) ALL FWLR (Pt. 717) 677, 701, the Apex Court held that:
“The well laid down positions of the law is that where a purchaser of land has paid the price for the land to the vendor, he immediately acquires equitable interest in the land and this, is as a good legal estate. The equitable interest so acquired can only be destroyed by a purchaser for value who had no notice of the existing…” Per Rhodes-Viviour, JSC.
Given my reasoning as above, Exhibit 1 cannot in all honesty be categorized as an “Instrument” in the likes of a document which

confers, transfers, limits charges or extinguishes an interest or title in favour of some person(s) for which the requirement for registration is, as a matter of law, become imperative under Section 15 of the Land Instrument Registration Law Cap 85, Laws of Kaduna State, and the decision in Amankra vs. Zankley (1963) 7 ALL NLR 504.

The question still remains as to whether there was any agreement between the original allottee (Yazeed Mohammed) and the 1st respondent for the sale of Plot NT 84 at the NITR Site and Service Scheme to the latter? This question I think can be resolved by reference to the facts and circumstances leading to this case on appeal.

It is not in dispute that Nurudeen & Co Nig. Ltd were engaged by the Federal Ministry of Science and Technology as consultants to carry out Survey and Plot out the land at the Site and Service Scheme belonging to the appellant for the purpose of allocating the plots to the Staff of the appellant and the general public. The consultants were similarly appointed or engaged to manage the Site and Service Scheme. To that extent, Nurudeen & Co. Nig Ltd., in the discharge of this function were to act

or acted not only as agents to the Federal Ministry of Technology and the affiliate body as in the appellant, they also acted as agents to the various allottees of the plots at the Site and Service Scheme, in the pursuit of their powers and duty/function to manage the Site and the Service Scheme. Exhibits 8, 9, 10, 11, and 12 among other documents issued by the consultants, attest to the fact that they also acted on behalf of other allottees. By Exhibit 8 in particular, the consultants are seen to put up an application on behalf of the 2nd Respondent for seeking the approval of the planning board, to enable the 2nd Respondent commence her building. The Consultants acted in the same manner when Exhibit 1 was issued by them in relation to plot NT84.

An agent as defined at page 64 of Black’s Law Dictionary (7thed) is “one who is authorized to act for or in place of another, a representative”. Thus, the word “agent” denotes one who acts, a doer, e.t.c that accomplishes a thing or things. The agent normally binds his principal but not himself. See: Samuel Esigwe vs. PSPLS Management Consortuim Ltd (2009) 3 NWLR (Pt. 428) 378 (SC).

A relationship of agency is generally said to exist whenever one person called the “agent” has authority to act on behalf of another called the “principal” and consents to the act. See: Niger Progress Ltd vs. North East Line Corporation (1989) 3NWLR (Pt. 107) 68, 92. Agency can be created by (1) agreement (2) Ratification (3) Operation of Law. Agency can also arise impliedly from the nature and condition of the parties or from circumstances of the case. See: Achoru vs. Decagon Investment Ltd & Anor. (2014) LPELR – 24143(CA). Niger Progress Ltd vs. North East Line Corporation (supra); Bamgboye v. University of Ilorin (1991) 8 NWLR (Pt. 207) 1, 29.
It is on record that Nurudeen & Co. Nig. Ltd handed over Exhibit 2 to the 1st respondent, upon the payment of the purchase price for plot NT 84, an act reminiscent to the exercise of authority given by Yazeed Mohammed. Exhibit 2 is the allocation paper to Yazeed Mohammed over plot NT 84 at the NITR Site and Service Scheme.
It has been argued for the appellant that in the absence of a Power of Attorney, expressed and conferred on Messrs Nurudeen & Co. Nig.

Ltd to act as such, they cannot validly sell or dispose the property or land allocated to Yazeed Mohammed hence the 1st respondent according to them, has no valid title to Plot NT 84 over which a declaratory order can be made in his favour. Learned appellant’s counsel had relied on the decision in Briggs vs. C. L. O. R. S. N (2005) 12 NWLR (Pt. 938) 59, 99 where the Apex Court cited with approval, the decision of the Court of Appeal in England in L.C.C. vs. Agricultural Foods Products Ltd (1955) 22 Q. A. B. 218, ALL E. R. 229, 232-233 and held that:
“Anyone authorized to execute a deed could do so on behalf of another. But cannot be dispute that the authorization ought to be in writing”.

A Power of Attorney is a document of delegation of authority to the donor. It does not itself transfer or convey any estate. Exhibit 1 was prepared and issued to the 1st respondent on the 25th November, 2008 in respect of Plot NT 84 (NITR Land) in Kaduna, consequent upon which Exhibit 2, the allocation paper in the name of Yazeed Mohammed, was released to the 1st Respondent. There has been no report, at least, there is nothing in the record of

evidence before us to suggest to the contrary that the release of Exhibit 2 to the 1st Respondent was without the authority of the Original allottee. This is what I think, the appellant and their counsel should seek to establish by evidence that the release of Exhibit 2 to the 1st Respondent along with the interest in it was improper, given the facts in this case.
The appellant through counsel has further made the submission that by reason of a resurvey work carried out by the Surveyor-General of the Federation, the position of the existing plots including plot NT84 were affected and adjusted accordingly but evidence of the new survey plan in relation to the NITR Site and Service Scheme was not produced or tendered to establish that fact and indeed, that adjustments had been made to the existing plots based on that new survey plan. In the absence of this vital evidence being produced or tendered, the original or existing survey plan as put in place by Nuruddeen & Co. Nig. Ltd, still hold sway with plots No. NT 84 and NT 93B as separate and distinct allocations. The Approved Allocation List as in Exhibit 6, items, 37 and 191 respectively. Further

attest to this fact or finding.
By dint of Exhibit 1, the 1st respondent has acquired equitable interest in or over plot NT 84 at the NITR Site and Service Scheme in Kaduna. This finding made at the Court below is unassailable and the same is endorsed by me. In effect I similarly resolve issue 2 in favour of the 1st respondent. The appeal on the whole, is without merit and same is dismissed.

The judgment delivered at the High Court of Kaduna State on 21st April, 2016 in Suit No. KDH/KAD/9/2014 is affirmed. There is no Order as to cost.
Ordered accordingly.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my lord Saidu Tanko Husaini, JCA. I agree that the appeal has no merit and ought to be dismissed. I dismiss it. The judgment of the lower Court is affirmed.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Saidu Tanko Husaini, JCA, where the issues in contention have been well set out and distinctly determined. I also dismiss this appeal as lacking in merit and affirm the judgment of the lower Court. I also make no order as to cost.

Appearances:

O. K. IRIKEFE, Esq. For Appellant(s)

ABDULAZIZ IBRAHIM, Esq. – For the 1st Respondent.

FUMEN GANDU, Esq. – For the 2nd Respondent. For Respondent(s)