SIMON APALA ABOSHI V. MANASE FELE & ORS.
(2012)LCN/5418(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2012
CA/J/259/2001
RATIO
ACTION: ESSENCE OF A PRE-ACTION NOTICE
A pre-Action Notice is to the advantage of a person or administrative division on whom or on which it should be served. It is meant to assist such a person or agency, after thorough study of the claim against him (it) decide on what to do in the matter; whether to negotiate and reach a compromise with the plaintiff or decide to go all the way into legal battle so as to have a judicial pronouncement on the point in dispute.
Generally the pre-action notice serves to erase surprise and allow a party to have adequate time to prepare to deal with the claim against it. PER UCHECHUKWU ONYEMENAM, J.C.A.
ACTION: EFFECT OF NON-SERVICE OF A PRE-ACTION NOTICE
As has also been held by this court, the effect of non-service of a pre-action notice where it is statutorily required is only an irregularity which though renders an action incompetent but can be waived by the defendant who fails to raise some either by motion or pleadings in the statement of defence. See Eti-Osa Local Govt. v. Jegede (2007) 10 NWLR (Pt.1043) 537. PER UCHECHUKWU ONYEMENAM, J.C.A.
LAND LAW: NATURE OF A CERTIFICATE OF OCCUPANCY
A certificate of occupancy is normally the evidence of exclusive possession and the rights provided for in favour of the person in possession of such certificate. Auta v. Ibe (2003) NWLR (Pt. 837) 247. Such a document is a prima facie evidence of title but it will give way to a better title. Ilona v. Idakwo & Anor. (2003) II NWLR (Pt.830) 53; (2003) LPELR – SC.97/1999. Where a competent authority properly issues a certificate of occupancy, it raises the presumption that the holder is the owner in excusive possession of the land to which the certificate relates. It also raises the presumption that of the time it was issued, there was not in existence a customary owner whose title has not been revoked. However, where it is proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy, the court can revokes it. See Mado V. Madu (2002) 13 NWLR (Pt.784) 231. PER UCHECHUKWU ONYEMENAM, J.C.A.
PROCEDURE: RIGHT OF ADDRESS OF COUNSEL
In civil proceedings in our courts, although a party is not bound to address the court, the right of address is nevertheless there. In the normal course of events, the proceedings of court cannot be said to be complete until both parties have addressed the court. This flows from the provision of section 294(1) of the 1999 Constitution which provides that every court established under the constitution shall deliver its judgment in writing not later than ninety days after the conclusion of evidence and final addresses.
The right of address is recognized by the constitution owning to its walloping and immense assistance to the Judge in writing his judgment. The essence of a counsel’s final address was highlighted in Obodo v. Olumu LPELR – SC.Page 19 paras A – C; (1987) NWLR (Pt.59) III; per Obaseki J.S.C. stated thus;
“Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its assistance to the Judge in arriving of a just and proper decision, though dependent on the quality of address, cannot be denied. The absence of an address can tilt the balance of the learned Judge’s judgment just as much as the delivery of an address after conclusion of evidence can”
In hearing a case in our judicial adversary system every party must not only be heard but must also be allowed the opportunity of being heard. Address forms part of a party’s case and failure to take a party’s address will influence the tilt of the scale of justice. The issue here is that the learned trial Judge did not take counsel’s final addresses before his judgment. He nodded to the importance of counsel’s addresses before judgment and blamed counsel for withholding their addresses. See page 76 lines 4 – 35. PER UCHECHUKWU ONYEMENAM, J.C.A.
FAIR HEARING: RIGHT OF FAIR HEARING
The constitution recognizes two fundamental principles of justice as natural and inherent to the proper and effective administration of justice. Relevant to the instant appeal is that parties to a case should be given adequate notice and opportunity to be heard. Adeniyi v. Governing Council, Yabatech (1993) 6 NWLR (Pt.300) 425; Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22. PER UCHECHUKWU ONYEMENAM, J.C.A.
WORDS AND PHRASES: MEANING OF BIAS
Bias is simply an opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the judge so influenced will be unable to hold an even scale. See: Kenon & Ors. v. Tekam & Ors. (2001) LPELR – SC.61/1995. PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES:
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
SIMON APALA ABOSHI – Appellant(s)
AND
1. MANASE FELE
2. THE DIRECTOR-GENERAL BUREAU OF LANDS AND SURVEY, MAKURDI
3. ATTORNEY-GENERAL, BENUE STATE – Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A., (Delivering the Leading Judgment): The Appellant (who was the Plaintiff) filed an action against the Respondents before the High court of Justice, Benue State, Makurdi, claiming declaration of title to a piece of land lying and situate beside NITEL Headquarters, Akpehe, Makurdi-Gboko road, Makurdi, on 12th March, 1996. See pages 1 – 5 of the Record. The Respondents subsequently filed and exchanged pleadings with the Appellant, albeit, with leave of Court having failed to do so within time. See Pages 45 and 47 of the Record. The Appellant at the lower court claimed as follows:
1. “A declaration that the plaintiff is the rightful occupier of plot No. BNA 2614 situate at Akpehe Layout, off Makurdi – Gboko road, Makurdi.
2. An order of perpetual injunction restraining the 1st defendant, his servants, agents and privies from further trespassing into or tampering with plaintiff’s plot No. BNA 2614.
3. General damages for trespass limited at N1,000,000.00 (one million naira). See page 5 of the record.
The 1st Respondent counter-claimed against the Appellant which warranted the filing of defence thereto by the Appellant. See pages 22 – 26 and 35 -36 of the record. The Appellants defence to the counter-claim was subsequently amended. See pages 40 – 41 of the record. The counter-claim of the 1st Respondent incorporated into the statement of defence at paragraph 28 claims thus:
“a. A declaration that the plaintiff is the rightful owner and title holder of plot No. BN 778 and TPS 184 bounded by beacons No. PC 1199 MKB 381, PC 1198 laying (sic) and situate at Logo 11 Akpehe village in the Makurdi Urban Area, measuring approximately 0.1131 hectares.
b. A perpetual injunction restraining the defendants (sic) by himself, servants agents, privies or successors in title or by whomsoever from entering upon the said property or doing any acts thereon incompatible or inconsistent or prejudicial to the plaintiff’s title and interest on the said plot of land.
c. Special damages in the sum of Eighty thousand and Six hundred naira only. ”
PARTICULARS OF SPECIAL DAMAGES
N K
1. Fifty (50) bags of cement at 400.00: per bag 20,000 00
2. One thousand (1,000) cement blocks at N19.00 per block 19,000 00
3. 4 trips of gravel at N1,800.00 per trip 7,200 00
4. 7 trips of sharp sand at N800.00 per trip 5,400 00
5. 6,000 burnt ricks at N300 per block 18,000 00
6. Cost of construction and roofing for a round-hut 5,000 00
7. Cost of sinking a well 6,000 00
TOTAL: Eight (sic) thousand and six Hundred Naira 80,600 00
d. Aggravated damages in the sum of N200,000.00 (Two Hundred Thousand Naira only)
e. General damages in the sum of N5 million (five million Naira only)”
At the hearing, the Appellant called four witnesses including himself. He tendered documents which were admitted in evidence as Exhibits A – D while one of his documents was rejected. The 1st Respondent called two witnesses including himself. He tendered Exhibits F -Z, Z1, Z2 and Z3. The 2nd and 3rd Respondents called one witness, to wit: DW3 who happened to be the Higher Deeds Registrar with the 2nd Respondent’s. Documents tendered through him and admitted in evidence were Exhibits, Z3(i), Z4(i), (ii) & (iii).
The trial Court delivered its judgment without counsel’s final addresses. In its judgment delivered on 5th April, 2001, the trial Court dismissed the claim of the Appellant in its entirety. On the other hand, the Court entered judgment for the 1st Respondent in respect of his counter-claim and awarded the total sum of N86,600 as special and general damages. See pages 73 – 81 of the record.
Dissatisfied with the judgment of the court, the Appellant has filed an appeal to this court. The Notice of Appeal filed on 4th July, 2001 and containing thirteen (13) Grounds of Appeal is at pages 82 – 88 of the record.
Briefs were filed and duly served. The Appellant’s brief prepared by Mr. P.A. Akubo, SAN identified 5 issues for the determination of the appeal. The 5 issues are:
1. “Whether upon a careful evaluation of evidence in this case and having regard to the correct interpretation of section 1 of the land use act, 1978, the learned trial Judge was right in dismissing Appellant’s case on the ground that his case had no merits and that the Governor of Benue State was in absolute Legal possession of the piece of land, the subject matter of this case. (Grounds 1, 2, 3 and 6)
2. Whether the Learned trial Judge was right in saying that the refusal of the Governor of Benue State to grant right of occupancy to the Appellant had brought to an end Appellant’s prescriptive occupation of the land and that the issue of payment of compensation was “an act of executive magnanimity”. (Grounds 4 and 5).
3. Whether the Learned trial Judge was right in entering Judgment for the 1st Respondent on the basis of his counter-claim by declaring him as the rightful holder of the Right of Occupancy over plot No. 778 as well as a total of N86,600 as special and general damages on the ground that the 1st Respondent was entitled to exclusive right over the property which Appellant was allegedly in trespass more so that the evidence adduced by the 1st Respondent was said not to have been impeached by the Appellant. (Grounds 7, 8, 9, 12 and 13).
4. Whether the Learned trial Judge denied fair hearing to the Appellant having deprived him the opportunity of final address before Judgment was delivered in this case. (Ground 10).
5. Whether the Learned trial Judge was bias against the Appellant. (Ground 11).
The 1st Respondent’s brief settled by Mr. E.I. Iaren raised the following 3 issues for the resolution of the appeal. See the 3 issues as reproduced:
A. “Whether or not the trial High Court was right in dismissing the appellant’s case.
B. Whether or not the trial High Court was right in entering judgment for the 1st Respondent on the basis of his counter-claim; and
C. Whether or not the appellant was denied fair hearing before the trial.”
Mrs. M.I. Sule principal state counsel, ministry of justice, Makurdi for the 2nd and 3rd Respondents adopted the issues as formulated by the 1st Respondent’s counsel.
Issues 1 to 4 of the Appellant’s issues carry the same purport with the 3 issues formulated by the 1st Respondent except for verbosity and details. The issues formulated by the Appellant are all embracing and will best serve the interest of justice in the determination of this appeal. I shall therefore adopt them in determining the appeal. I have observed that the arguments relating to issues 1 and 2 are interwoven, in resolving the issues therefore, I shall resolve Issues 1 and 2 together.
ISSUES 1 AND 2
The Appellant’s counsel referred to page 49 lines 10-18, 36-38 and page 51, lines 42 – 44 as to the evidence of the Appellant and PW2 relating to how he acquired the land as well as acts of ownership. He also referred to page 67 lines 47-49, 33- 37 and page 71, lines 18 – 25. Learned senior counsel for the Appellant submitted that the learned trial Judge improperly evaluated the evidence in this case.
He contended that the Appellant’s presence on the land in question which was admitted, was positive proof of the fact that the allocation of the land to the 1st Respondent was manifestly flawed. He relied on section 34(1)(2) and (3) of the Land Use Act, 1978 which recognizes the existence of subsisting interest to land before the commencement of the Act in 1978. See: Dzungwe v. Gbishe (1985) 2 NWLR (Pt.8) (528) at 530.
Learned senior counsel further submitted that the mere issuance of Exhibit “Q” cannot confer any right on the 1st Respondent since the Appellant had a better title. See Agundo v. Gberbo (1999) 9 NWLR (Pt.61) 71; Ojah v. Ogboni (1996) 6 NWLR (Pt.454) 1 NWLR (Pt.96) 182; Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562.
However recognizing the revocation power of the Governor, Mr. Akubo, SAN submitted that such power conferred on the Governor by section 28(1) of the land use Act, 1978 must abide section 29(1) of the Act (supra).
Finally on this the learned senior counsel submitted that owing to the fact that the Respondents conceded the issue of compensation, ownership of a contiguous piece of land to the Appellant, a dispassionate evaluation of the evidence before the trial court would disclose that the Appellant discharged the onus of proof on him. He submitted that the dismissal of Appellant’s case is a pungent antithesis to the available evidence. Accordingly he invited the court to intervene and evaluate the evidence which the trial court failed to evaluate properly. See U.T.C. Ltd. v. T.A. Hammond (Nig.) Ld. (1998) 9 NWLR (Pt.587) 423 at 434 – 435; Musa v. Yerima (1997) 7 S.C.N.J. 109 at 124.
He urged the court to resolve the issues in favour of the Appellant.
In response, the 1st Respondent submitted that the Appellant can only enjoy a deemed grant if he proves that his grantor has title to the disputed land and in this case, he has failed to discharge this burden. Therefore the case of Dzungwe V. Gbishe (supra) and section 34(1)(2) and (3) will not avail the Appellant in the circumstance.
It was also the 1st Respondent’s submission that the trial court was right in its construction of section 1 of the Land Use Act. He relied on: Isaac Ogualaji v. Attorney-General of Rivers State & Anor. (1997) 5 SCNJ 240 at 249. He added that by the provision of section 5(2) of the Act. (Supra), the issuance of Exhibit Q to the Respondent extinguished any right the Appellant had to the land. He submitted that the cases cited at page 8 paragraph 4.8 of the Appellant brief are therefore not applicable to the circumstances of the case.
It was further submitted for the 1st Respondent that the Appellant cannot rely on the issue of compensation and ownership of a contiguous piece of land in proof of case because neither of the two form the basis of his case from his pleadings, in respect of which he is bound. See Moses Okhuarobo & Ors. v. Chief Eghareva Aigbe (2001) 9 NSCQR 623.
Finally, it was learned counsel for the 1st Respondent’s submission that the compensation paid to the Appellant cannot be anything but executive magnanimity as was held by the learned trial Judge since the Appellants land was not revoked in which case section 29(1) of the land use Act (supra) would have been relied upon to pay him compensation.
1st Respondent urged on the court not to disturb the decision of the trial court on these issues.
For the 2nd and 3rd Respondents, Mrs. Sule submitted in addition to the submission of Mr. Iaren for the 1st Respondent that the trial court was right in dismissing the Appellant’s claim because he failed to give the mandatory 3 months notice before he sued the 2nd and 3rd Respondents for reliefs which would have nullified Exhibit A (letter rejecting Appellant’s application for statutory right of occupancy). She also submitted that the action was statute barred the same not having been instituted within the period of 3 months of the grant of the certificate of statutory right of occupancy – Exhibit Q. see: Permanent Secretary, Ministry of Works, Kwara State v. Balogun (19750 1 ANLR (Pt.1) 254 at 256.
In the Appellant’s reply brief of argument, Mr. Akubo, SAN submitted that it is not the correct position of the law that by section 5(2) of the land use Act, 1978, the issuance of Exhibit Q to the 1st Respondent extinguished any right the Appellant had to the land. Rather, he argued that the correct position of the law is that Exhibit Q so issued to the 1st Respondent can only be valid if the Appellant has been divested of his customary ownership of the land before its grant. See Olohunde v. Adeyoju (2000) 6 SCNJ 470 at 493 – 494; Emmanuel Ilona v. Sunday Idakwo & Anor. (2003) 11 NWLR (Pt.830); Ibrahim v. Mohammed (2003) 6 NWLR (Pt.817) 615 at 620 – 621. Learned senior counsel accordingly urged the court to hold that Exhibit Q is invalid and ought to be discountenanced.
In reply to the 2nd and 3rd Respondents’ argument, Mr. Akubo, SAN contended that in the event the Appellant was obliged to give a pre-action Notice, the fact that the 2nd and 3rd Respondents did not plead non service of pre-action Notice in their statement of defence they are deemed to have waived same and cannot raise it on appeal. See Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency & Ors. (2002) 18 NWLR (Pt.798) 32 – 33; Ariori & Ors. v. Elemo & Or (1983) 1 S.C. 13 at 48 – 50; Kossen Nigeria Ltd & Ors. V. Savanna Bank of Nigeria Limited (1995) 9 NLWR (Pt.420) 439.
Learned senior counsel made similar submission in respect of the issue of statutory bar raised by the 2nd and 3rd Respondents. He cited Bernard Okoebor v. Police Council and Others (2003) 5 SCNJ 52 at 56. Resolution of these issues, invite the determination of several legal questions. I shall resume with the issues raised by Mrs. Sule for the 2nd and 3rd Respondents on Pre-Action Notice and the statute barred status of the action.
A pre-Action Notice is to the advantage of a person or administrative division on whom or on which it should be served. It is meant to assist such a person or agency, after thorough study of the claim against him (it) decide on what to do in the matter; whether to negotiate and reach a compromise with the plaintiff or decide to go all the way into legal battle so as to have a judicial pronouncement on the point in dispute.
Generally the pre-action notice serves to erase surprise and allow a party to have adequate time to prepare to deal with the claim against it.
A suit commenced in default of service of pre-action notice is incompetent against the party who ought to have been served with the notice provided such party complains about the competence of the suit. See: Mobil Producing Nigeria Unlimited V. Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR (Pt.798) 1 at 32 – 33.
As has also been held by this court, the effect of non-service of a pre-action notice where it is statutorily required is only an irregularity which though renders an action incompetent but can be waived by the defendant who fails to raise some either by motion or pleadings in the statement of defence. See Eti-Osa Local Govt. v. Jegede (2007) 10 NWLR (Pt.1043) 537.
The Appellant conceded to the fact that he did not serve the Respondents with pre-action notice but contended that the Respondents have waived their right since they neither pleaded same nor raised it timeously. From the authorities referred to above the judicial position on issue of non service of pre-action notice where it is statutorily required is that the action initiated is rendered incompetent if the party who ought to have been served with the notice challenges it.
It is trite that a defendant who intends to rely on a special defence to which class the pre-action notice belongs must specifically plead same. See Federal Capitol Development Authority v. Alhaji Musa Naibi (1990) LPELR – S.C. 190/1989; (1990) 5 SCNJ 186 at 196; (1990) 3 NWLR (Pt.138) 270 at 281. From the 2nd and 3rd Respondents’ terse statement of defence, it is clear that they did not plead non service of pre-action notice on them. See pages 29-30 of the record. In addition, they neither by motion or in any form raised same of the lower court. They have raised the non-service of pre-action notice for the first time in this appeal.
The Respondents who entered an unconditional appearance and participated in the proceedings at the lower court from start to finish without complain has for all intent and purposes waived their right to rely on the defence. See Eti-Osa LGA v. Jegede (supra); Ariori & Ors. v. Elemo & Ors. (1983) LPELR – S.C. 80/1981 1 S.C. 13 at 48 – 50.
Finally on this, I hold that the Action commenced by the Appellants in default of service of pre-action notice on the 2nd and 3rd Respondents is not incompetent for the fact that the said Respondents in law are deemed to have waived their right.
Generally, laws must not be pleaded before a party can rely on them. However, the law of pleadings requires that some specific laws must be pleaded for instance statutory defence like the limitation statute. See Okoebor V. Police Council & Ors. (2003) 5 SCNJ 52 at 56 (2006) LPELR – S.C. 33/1999.
Here again, the issue of statutory bar did not form part of the 2nd and 3rd Respondents’ defence at the lower court. They did not plead statutory bar in their one page statement of defence. See page 29 of the record. This, I hold cannot be raised of this point.
Having cleared these hurdles, I shall resolve the other sub legal issues that have arisen in the resolution of issues 1 and 2 as a whole. The learned senior advocate contended that the learned trial Judge did not evaluate the evidence properly and as such his decision was perverse. He invited the court to evaluate the evidence.
It is the basic function of the trial Court to evaluate and ascribe probative value to material evidence before it without the interference of an appellate Court, however the appellate Court must not only intervene but interfere where the trial Court failed to properly evaluate such evidence or to evaluate the evidence at all. See: Adebayo v. Adusei (2004) 4 NWLR (Pt.862) 44. In either case the findings of the trial Court will be said to be perverse. Once the findings of a trial Court is adjudged perverse, an appellate Court can interfere with the findings.
There will be need to reflect on the brief facts of the case at this point to ascertain the evaluation status of the evidence that was placed before the court.
The case of the Appellant is that sometime in 1972, his father (long deceased) was given a piece of land lying and situate behind NITEL Headquarters, Akpehe on the right side of Makurdi-Gboko Road, Makurdi by a woman named Yenyi Nor as a (free) gift. Consequent upon the death of his father sometime in 1976, the Appellant inherited the said piece of land as the eldest surviving male son of his father in line with Jukun custom. In the same year, that is to say, 1976, the Appellant erected a concrete building of four (4) rooms and two brick round huts and also planted economic trees such as palm trees (11 in number), coconut trees (21 in number) and guava trees (3 in number) on the said piece of land. In addition, the Appellant deposited about 300 burnt brick blocks on the land. Both the Appellant and his mother, Rhoda Aboshi exercised various acts of ownership on the said land.
Sometime in 1987, the Appellant applied to the 2nd Respondent for issuance of Statutory right of Occupancy to cover the parcel of land in question. In response to the said application, the Appellant was asked to wait for the demarcation of the land into Akpehe New Layout. Subsequently, the official of the 2nd Respondent carried out the demarcation exercise whereupon the Appellant’s parcel of land was demarcated into three and accordingly designated as plot numbers NB 3556 , BN 3566 and BN 2614. Plot No. BN 2614 measures approximately 0.1131 hectares on survey sheet TBS. 184 Makurdi Urban Area.
While awaiting the fate of his application for Statutory Right of Occupancy, the Appellant was informed that part of the land had been allocated to somebody else. The person turned out to be the 1st Respondent. When the Appellant took up the matter with the 2nd Respondent, the Appellant was served with a terse letter Ref. No. BNA 26149 dated 3rd January, 1992 signed on behalf of the 2nd Respondent
Indicating that Appellant’s application was rejected on the pretext that “the nature of acquisition to this effect is illegal”. The said letter was tendered and admitted as Exhibit ‘A’. The Appellant protested vide Exhibit ‘B’. See pages 49-50 of the record. The explanation of the 2nd Respondent for classifying Appellant’s acquisition as illegal was that they did not know how the Appellant acquired the land. See page 50 of the Record.
In the meanwhile, the 1st Respondent approached the Appellant and informed him that he should discontinue farming activities on the land as the land belonged to the government which had in turn given it to him. Consequently, the Appellant went back to the Bureau for Lands again and submitted o written complaint protesting the purported allocation of the land to the 1st Respondent. The letter of protest was tendered and admitted as Exhibit ‘D’. Following receipt of Exhibit ‘D’, a land officer was sent from the office of the 2nd Respondent to verify Appellant’s title to the land.
The said officer confirmed from the home of Yenyi Nor as well as Appellant’s mother that title to the land lied in the Appellant. Thus, the Appellant continued his acts of ownership and even erected a 3 room structure on the land but the 1st Respondent went into the land and destroyed the crops of the Appellant on the land. This act was reported to the police.
The rival account of the 1st Respondent is that his late mother applied to the 2nd Respondent as far back as 30th August, 1975 for a piece of commercial plot and paid requisite fees for some. But on 21st July, 1976, the Bureau of Lands and Survey informed 1st Respondent’s mother that someone else had already applied for the same place and therefore offered to find alternative piece of land for her. See Exhibit G. Afterwards, Exhibit H dated 20th November, 1980 was written to 1st Respondent’s mother that commercial plots in Makurdi area had been exhausted and requested her to wait until new layouts were created. Exhibit J was another letter requesting for her tax clearance certificates as well as her two passport photographs.
Following the death of his mother on 29th June, 1982, the 1st Respondent applied and obtained letters of administration to wit: Exhibit K with which he continued his mother’s pursuit. By Exhibit L, the 1st Respondent was informed that his income was inadequate for a commercial plot, he was requested vide Exhibit M to change his application from commercial to residential purpose. Through Exhibit N the 1st Respondent complied and was eventually allocated plot No. 778 with a right of occupancy No. BN 778/81 to wit: Exhibit ‘Q’
Under cross-examination by learned counsel to the Appellant, both the 1st Respondent and DW3 confirmed that 1st Respondent’s application for a plot of land was generic. It was not tied to the particular piece of land, the subject matter of this case. They also acknowledged Appellant’s ownership of the adjoining plots and admitted that he was asked by the 2nd Respondent to pay compensation to the Appellant. Furthermore DW3 conceded that Exhibit Z4(i) shows the land was used seasonally for cultivation of rice by the Appellant. The 1st Respondent and his witness DW2 gave evidence of destruction of materials and structures erected by the 1st Respondent.
At the end of trial, the learned trial Judge granted the counter-claim of the 1st Respondent substantially and awarded a total of N86,600 as special and general damages on ground of trespass. On the other hand, the trial court dismissed the Appellant’s case in its entirety.
From the facts as set out above, the learned trial judge reached this conclusion:
“Accordingly, even though the evidence, both from the plaintiff and defence, seem to show that the plaintiff established some form of presence on the land at the time the same was allocated to the 1st defendant by the Governor of Benue State, such presence was only of the pleasure of the Governor who, at all material times was the authority in absolute legal possession by dint of section 1 of the Land Use Act supra….” (underlining for emphasis).
From the evidence as shown above, the learned senior advocate was correct when he argued that the learned trial Judge did not properly evaluate the evidence before him and urged on this court to do so. Consequently, I shall interfere and evaluate the evidence.
I had set out the facts above for ease and better understanding of the position. From the facts above, the Appellant gave an unchallenged evidence as to his root of title, his undisturbed act of ownership, possession and occupation of the land in dispute. He clearly stated that the land in dispute together with the 2 adjoining plots formed a larger portion of the land he had inherited from his father by Jakum custom before the 2nd Respondent demarcated it into 3 plots. This was the position before the grant of Exhibit Q to the 1st Respondent. In addition to this unchallenged evidence, the 1st Respondent and DW2 on behalf of the 2nd and 3rd Respondents acknowledged that the 2 adjoining plots belonged to the Appellant. They also confirmed the Appellant’s position as having right over the plot in dispute when the 2nd Respondent ordered the 1st Respondent to pay the Appellant compensation for the economic trees on the aforesaid plot and the same offered to pay. From this evidence, it is manifestly clear that the Appellant was in an actual undisturbed possession and occupation of the plot in dispute as the owner having inherited same from his father who himself derived on unchallenged title from Yenyi Nor up and until the advent of the Land Use Act. The learned trial Judge did not properly evaluate the evidence before him when he found that the evidence before the court “seem to show that the plaintiff established some form of presence on the land at the time the same was allocated to the 1st defendant by the Governor of Benue State. I hold that the evidence before the lower court established that the Appellant had title to the plot of land in dispute before the coming into effect of the Land Use Act and maintained act of ownership until he was disturbed by the 1st Respondent who claimed title by reason of Exhibit Q.
Against this background, I shall examine the following relevant provisions of the Land Use Act, 1978 relied upon by parties in this appeal to argue for and against the right of the Appellant over the land in dispute vis-‘E0-vis the Act. Relevant sections and provisions are as stated:
Section 1:
“Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation is hereby vested in the Governor of that State, and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.”.
Section 5(2)
“Upon the grant of a statutory right of occupancy under the provisions of subsection (1) of this section, all existing rights to the use and occupation of the land, which is the subject of the statutory right of occupancy shall be extinguished”.
Section 28(1)
“It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest”.
Section 29 (1)
“If a right of occupancy is revoked for the cause set out in paragraph (b) of subsection (2) of section 28 of this Act or in paragraph (a) or (c) of subsection (3) of the same section, the holder and the occupier shall be entitled to compensation for the value of the date of revocation of their unexhausted improvements.”
Section 34(1)(2) and (3)
“(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.
(3) in respect of land to which subsection (2) of this section applies there shall be issued by the Governor on application to him in the prescribed form a certificate of occupancy if the Governor is satisfied that the land was, immediately before the commencement of this Act, vested in that person”.
Having reproduced the above relevant Provisions of the Act, I shall set out established principles of law relating to the said sections. The primary fact to note is that under the Land Use Act, 1978 two types of rights of occupancy are recognized. The statutory right of occupancy granted by the Governor under section 5(1)(a) of the Act and the statutory right of occupancy deemed granted by the Governor pursuant to section 34(2) of the Act. It is settled law that a deemed grants vests as much right on its grantee as an actual grantee of a right of occupancy. See Adole v. Gwar (2008) LPELR – S.C.302/2002.
Section 34 of the Act recognizes the title of persons who were on the land prior to 1978 when the Act came into force. The Right is automatic by the operation of law. The combined effect of section 5(1) and (2) is that, once the Governor exercises his power of grant of statutory right of occupancy to any person in respect of land, all existing rights to the use and occupation of the land so granted extinguishes.
Equally the position of the law is the fact that, the only recognized way of extinguishing a vested right is by revoking same for any of the following reasons:
(a) For overriding public interest.
(b) For public purposes.
(c) For breach of the provision imposed by section 10 of the Land Use Act.
(d) For breach of any terms envisaged by section 8 of the Act
(e) For failure to comply with the requirements specified in section 9(3) of the Act.
In relating the principles stated above with the facts of this case, a good start point is the understanding of the correct interpretation of section 1 of the Land Use Act. By section 1, all land in Benue State is vested in the Governor of Benue State to hold in trust and administer same for the use and common benefit of all Nigerians in accordance with the provisions of the Act. By this section the Governor can only be in absolute legal possession of a piece of land in Benue State within the confines of the Act. It follows therefore that by reason of sections 34, 28 and 29 of the Act, where there was a vested right before the coming into operation of the Act, the Governor cannot be in absolute legal possession of the piece of land until the land has been revoked in accordance with the Act.
In the instance appeal, the pleadings and evidence agree that the Appellant had vested right and exercised various acts of ownership over the land in dispute since 1976 when he inherited same from the father. The misconception came with the effect of the grant of Exhibit Q (right of occupancy) to the 1st Respondent, sometime in 1993. From their defence, the 2nd and 3rd Respondents preconceived the fact that their refusal of the Appellant’s application for the grant of a right of occupancy in respect of the land in dispute and the Governor’s granting the 1st Respondent Exhibit Q, the Appellant’s right was extinguished.
There is no doubt that the Respondents’ defence was based on the belief that with the coming into operation of the Act all interest in land automatically ceased and the Governor could without recourse to the provisions of the Act grant a valid right over a piece of land with vested right to another. This was also the reasoning of the learned trial Judge when he dismissed the Appellant’s claim. See Page 77, lines 47 – 60 of the record. This is a misconception and misconstruction of the provision of the Act which with due respect made the learned trial Judge fall into a grievous error in law. May I reiterate at this point that by virtue of section 34(2) of the Act, a person vested right over any piece of land becomes a deemed grantee of right of occupancy by the Governor. This right is as good as a granted right of occupancy by the Governor. In my considered view, the Appellant in this case whom I had earlier found to have had title over the plot in question before the advent of the Act, had vested right on the piece of land in dispute. This right which is a deemed grant, I hold is as good as the right granted the 1st Respondent by virtue of Exhibit Q. In effect, it means before the grant of Exhibit Q to the 1st Respondent a deemed right of occupancy existed. The main question that will further ensue is the effect of, Exhibit A (letter rejecting Appellant’s application for the Governor’s grant of right of occupancy) and Exhibit Q.
The same Act which recognizes a deemed grant right of occupancy provided for the manner any such grant could be extinguished. See section 28 of the Act. In the instance, the deemed grant of the Appellant was not at any time revoked. As to whether by Exhibit Q the vested right of the Appellant was extinguished. By virtue of section 5(2) of the Act a certificate of occupancy can only extinguish an existing right and not a deemed grant. I had earlier stated that a deemed grant is the second statutory right of occupancy recognized by the Act. It is a vested right which is automatic by the operation of law. See Adole V. Gwar (supra). It is different from an existing right. Under section 5(2) of the Act, are: “existing rights to the use and occupation of the land” which such rights have been given judicial interpretation to mean rights such as licences, mortgages and infact any temporary right of occupancy as opposed to any form of statutory right of occupancy. See Emmanuel Itona v. Sunday Idakwo & Anor. (2003) II NWLR (Pt.830) 53; (2003) LPELR – S.C.97/1999. Having held earlier that the right of the Appellant to the land was a deemed grant, I further hold that the grant of Exhibit Q could not and did not extinguish the right of the Appellant. See: Macaulay v. Omiyale (1997) 4 NWLR (Pt.497) 94.
Extending it furthermore, it is settled law that where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land will be invalid. Ilona v. Idakwo (supra).
Since the Appellant’s deemed right of occupancy subsists same not having been revoked, the grant of Exhibit Q to the 1st Respondent is wrongful, it is invalid and therefore has no effect whatsoever on its authenticity.
On the compensation issue, section 29(1) of the Act makes it mandatory that compensation be paid after a lawful revocation of a right of occupancy. In this appeal, the 1st Respondent as DW1 under cross examination gave evidence that he was ordered by the 2nd Respondent to pay compensation assessed N980.00 to the Appellant which the Appellant refused to accept. DW3, a Higher Deeds Registrar in the Bureau of lands and Survey, Makurdi confirmed this piece of evidence. See pages 67, lines 35 – 37 and 21, lines 18 – 21 of the record. I wish to note that the assessment was informed by the existence of economic trees on the land.
I had held that the Appellant’s right on the land was not an existing or temporary right. I had also held that Exhibit Q did not extinguish the Appellant’s right without prior revocation. Bureau of lands and survey, Makurdi, was in error when they deemed that by Exhibit A and Exhibit Q the Appellant’s right was extinguished without formal revocation in accordance with the law. Had there been a proper revocation of the Appellant’s right, he would have been statutorily entitled to compensation. See section 29 of the Act. Where there was no such revocation before the Appellant’s right of occupancy was purportedly extinguished and on offer of compensation made to him, the learned trial Judge was right when he held that the compensation offered was an act of executive magnanimity as against a statutory right although he based the finding on a wrong premise.
In the circumstance, I resolve issue 1 in favour of the Appellant. For issue 2, I hold that the refusal of the Governor of Benue State to grant right of occupancy to the Appellant in the circumstances of this case did not extinguish the Appellant’s prescriptive occupation of the land, however, the issue of compensation with the facts and circumstance of this case amounts to “an act of executive magnanimity”.
ISSUE 3
The Appellant adopted his argument on issues 1 and 2. In addition he submitted that the mere issuance of Right of Occupancy to the 1st Respondent (Exhibit Q) in respect of Appellant’s piece of fond does not divest the Appellant of his title much less conferring exclusive right on the 1st Respondent. He cited: Agundo V. Gberbo (1999) 9 NWLR V. Oni (1990) 2 NWLR (Pt.35) 745 at 751. It was his argument that in the circumstance it was absurd to find the Appellant liable for trespass.
Mr. Akubo, SAN further submitted that the evidence adduced by the 1st Respondent in respect of the award of N86,000.00 (Eighty Six Thousand Naira) to him is manifestly inadequate. He urged the court to resolve the issue in favour of the Appellant.
The 1st Respondent adopted his argument canvassed in support of the earlier issues. Mr. Iaren of counsel proceeded to submit that the 1st Respondent by his pleadings, oral evidence and Exhibit a proved the root of his title and as such was rightly given judgment by the learned trial Judge. He relied on Idundun V. Okumagba (1976) 9 & 10 SC 227 at 246; IBWA V. Imano (Nig.) Ltd. (2001) FWLR (Pt. 44) 421.
Counsel argued that bonafide claim of right does not avail the Appellant who knew the 1st Respondent was granted Exhibit Q. He added that the 1st Respondent proved both the special and general damages. Learned counsel urged the court to resolve this issue in favour of the 1st Respondent.
The 2nd and 3rd Respondents did not submit more on this issue except that they adopted the 1st Respondent’s submission.
A certificate of occupancy is normally the evidence of exclusive possession and the rights provided for in favour of the person in possession of such certificate. Auta v. Ibe (2003) NWLR (Pt. 837) 247. Such a document is a prima facie evidence of title but it will give way to a better title. Ilona v. Idakwo & Anor. (2003) II NWLR (Pt.830) 53; (2003) LPELR – SC.97/1999. Where a competent authority properly issues a certificate of occupancy, it raises the presumption that the holder is the owner in excusive possession of the land to which the certificate relates. It also raises the presumption that of the time it was issued, there was not in existence a customary owner whose title has not been revoked. However, where it is proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy, the court can revokes it. See Mado V. Madu (2002) 13 NWLR (Pt.784) 231.
Issue 3 of the Appellant’s issues impinges on the judgment of the trial court entered for the Respondent on the basis of his counter claim declaring him, as the rightful holder of the right of occupancy over plot No.778 as well as the award of N86,600. (Eighty Six Thousand Naira Six Hundred Naira) only for special and general damages on ground of trespass
I have set out the position of the law above which simply put; is that, a mere production of a certificate of occupancy by a party in a suit does not entitle the party to a declaration of title to land. In the instance, the 1st Respondent sort for a declaration of title and relied on Exhibit Q simplicita as the root of his title. The trial Judge based on Exhibit Q, declared the 1st Respondent the rightful holder of the right of occupancy over all that piece of land known as plot No. 788 lying and situate at Akpehe Makurdi.
Unfortunately, in the instant appeal the two major rebuttable presumptions Exhibit Q holds were rebutted by the Appellant. Firstly, is to say that the 1st Respondent was not in exclusive possession of plot No. 788 lying and situate at Akpehe Makurdi. From the pleadings and evidence, the Appellant maintained unchallenged possession and occupation of the land in question from 1972 through his father to 1976 when he took over after his father’s death till when this dispute arose. See pages 3 – 5, paragraphs 5 – 17 and pages 49 – 51 of the record. On the contrary, available evidence shows that, the 1st Respondent only came into contact with the plot in dispute early 1993. His mother had in 1975 applied for a commercial plot. Upon inheritance of his mother’s estate he was in early 1993 shown the plot in dispute as he had been informed by the 2nd Respondent that his income was not adequate for a commercial plot earlier applied for. See pages 23 – 24, paragraphs 8 – 19 and pages 67, lines 41 – 68. There was an overwhelming evidence that the Appellant was in exclusive possession of the above referred plot as at when Exhibit Q was granted to the 1st Respondent. Secondly, not in dispute from the record is the fact that the Appellant’s deemed right of occupancy was not revoked before the grant of Exhibit Q to the 1st Respondent. This, as I had earlier held in this judgment made Exhibit Q invalid. With Exhibit Q invalid, the learned trial Judge was wrong to have granted title of the land to the 1st Respondent as against the Appellant who had an unrevoked deemed right of occupancy.
In consequence, that the presumption of the validity of Exhibit Q was rebutted and that the learned trial Judge was wrong in granting title to the 1st Respondent, then the question is, does the issue of the Appellant trespassing into the plot in dispute arise?
“Trespass is unjustified intrusion by one person upon land in possession of another. See Ogunbiyi V. Adewunmi (1985) 5 NWLR (Pt. 59) 149 SCNJ at 156; Okogbue V. Romaine (1982) 5 SC 133 at 148. The essence of trespass is injury to possession. Per Ngwuta, J.S.C. Adetona & Anor. v. Zenith International Bank Plc. (2011) LPELR – SC.78/2007 P.41, paras A – B.
Authorities abound that trespass to land is maintainable at the suit of a person in exclusive possession of the land or anyone that has a right to possession. See: Eleretsu V. Oyobebere (1992) 1 NWLR (Pt. 266) 438 at 455. This is for the fact that exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong doers except a person who can establish better title. See: Amakor v. Obiefuna (1974) All NLR 109; Olagbemin v. Ajagungbede III (1990) 3 NWLR (Pt.136) 37; Ogunleye v. Oni (1990) LPELR – SC.193/1987; (1990) 2 NWLR (Pt.35) 745 at 751.
The learned trial Judge found that both parties gave evidence that the Appellant was present on the land in dispute at the time Exhibit Q was granted the 1st Respondent. See page 77 lines 47 – 51. I had earlier in this judgment held that the learned trial Judge’s confusion that the Appellant’s presence was at the mercy of the Governor of Benue State who by virtue of the Land Use Act was in actual legal possession of all land was an error in law. The error was as a result of the learned trial Judge’s improper appreciation of the import of section 34 of the Land Use Act vis-a-vis the authority of the Governor of Benue State over land in Benue State by virtue of the Act. There was no challenge of any sort of the root of title as given in evidence by the Appellant. The only glimpse of it was that, the 2nd Respondent in what I deem a make shift excuse wrote the Appellate to say his root of title was illegal without more. See Exhibit Z3 reproduced at page 78 of the record. May I remark that Exhibit Z3 standing side by side with the evidence of the Appellant on his root of title cannot dislodge same. I therefore re-emphasize that the Appellant was in exclusive possession and had a deemed right under section 34 of the Act. The 1st Respondent whom I have held possesses on invalid right of occupancy (Exhibit Q) had not been able to show a better title and as such cannot maintain an action for trespass against the Appellant.
Accordingly, the learned trial Judge was wrong when he granted N86,000.00 special and general damages against the Appellant for trespassing into his land. In the circumstance, I resolve issue 3 in favour of the Appellant.
On issues 4 and 5 which the Appellant argued together, the Appellant submitted that final address is as important constitutionally guaranteed right by section 294(1) of the constitution of the Federal Republic of Nigeria 1999 (as amended).
He argued that final address is part of the trial of the court. See Mike’ilu v. State (2001) 8 NWLR (Pt.715) 469; Obodo v. Olumu (1987) NWLR (Pt.59) III. Learned senior counsel further submitted that the refusal of the trial court to give him another opportunity of final address in the face of his explanation amounts to a denial of fair hearing. See section 36(1) of the 1999 constitution, Adeniyi V. Governing Council, Yabatech (1993) 6 NWLR (Pt.300) 426 at 450; Okonkwo v. Okonkwo (1998) 10 NWLR (Pt.136) 22 at 31.
On bias, the learned senior counsel submitted that the high handed comment of the trial court against the Appellant is incongruous with available evidence and as such the logical inference to be drawn is an ostensible case of bias against the Appellant. See Kenon v. Tekam (2000) 14 NWLR (Pt.732) 12 at 41 – 42, Udo V. C.S.N.C. (2001) 14 NWLR (Pt.732) 116 at 151.
He urged the court to resolve the two issues in favour of the Appellant.
The 1st Respondent in his reply urged the court to resolve the issues against the Appellant because the trial court exercised his discretion to refuse the Appellant’s counsel’s application for adjournment judicially and there is no taint of bias on the trial court as the allegation of bias is unfounded.
The 2nd and 3rd Respondents in their own response submitted that the Appellant’s right to fair hearing was not infringed as fair hearing does not mean that parties must be heard but that they must be given an ample opportunity to be heard. They argued that the Appellant was given opportunity to address the court which he failed to utilize. On bias they submitted that what the Appellant deemed as bias was not real but imaginary and speculative. They urged the court to resolve the issue against Appellant.
In civil proceedings in our courts, although a party is not bound to address the court, the right of address is nevertheless there. In the normal course of events, the proceedings of court cannot be said to be complete until both parties have addressed the court. This flows from the provision of section 294(1) of the 1999 Constitution which provides that every court established under the constitution shall deliver its judgment in writing not later than ninety days after the conclusion of evidence and final addresses.
The right of address is recognized by the constitution owning to its walloping and immense assistance to the Judge in writing his judgment. The essence of a counsel’s final address was highlighted in Obodo v. Olumu LPELR – SC.Page 19 paras A – C; (1987) NWLR (Pt.59) III; per Obaseki J.S.C. stated thus;
“Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its assistance to the Judge in arriving of a just and proper decision, though dependent on the quality of address, cannot be denied. The absence of an address can tilt the balance of the learned Judge’s judgment just as much as the delivery of an address after conclusion of evidence can”
In hearing a case in our judicial adversary system every party must not only be heard but must also be allowed the opportunity of being heard. Address forms part of a party’s case and failure to take a party’s address will influence the tilt of the scale of justice. The issue here is that the learned trial Judge did not take counsel’s final addresses before his judgment. He nodded to the importance of counsel’s addresses before judgment and blamed counsel for withholding their addresses. See page 76 lines 4 – 35.
The defence at the trial court closed their case on 16th January, 2001 and case was adjourned to 26th February, 2001 for “address of counsel”. On 26th February, 2001, the Appellant was in court, his counsel wrote for adjournment stating that he was appearing before a Jalingo High Court. Neither of the Respondents nor their counsel was in court and no message(s) from them. The court commented on the application of the Appellant’s counsel and adjourned the case to 5th April, 2001 of judgment.
The grouse of the Appellant stems from the above brief fact. Hence, the Appellant contends that failure to allow his counsel another opportunity to address the court before the judgment infringed on his constitutional right to fair hearing as enshrined in section 36(1) of the 1999 Constitution (as amended).
The constitution recognizes two fundamental principles of justice as natural and inherent to the proper and effective administration of justice. Relevant to the instant appeal is that parties to a case should be given adequate notice and opportunity to be heard. Adeniyi v. Governing Council, Yabatech (1993) 6 NWLR (Pt.300) 425; Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22.
The issue is, in the circumstances of the case, was the Appellant given opportunity to be heard. I stated earlier that the address of a counsel by virtue of section 294(1) of the 1999 constitution (as amended) is an integral part of the hearing of a case. The right of a party in a case to be heard implies granting such a party the opportunity to be heard. It does not in any way mean that the party must be heard. The right of address in the same vein is not mandatory as it can be waived by a counsel. See Niger Construction Ltd. v. Okugbemi (1987) 4 NWLR (Pt. 67) 787.
The important fact here is that the Appellant’s counsel had the opportunity to address the court on 26th February, 2001 but he wrote that he was unable to attend court because he was appearing before a court of coordinate jurisdiction without any special reason. In the eye of the law the Appellant’s counsel chose not to address the court on 26th February, 2001. The court adjourned the matter to 5th April, 2001 for judgment. For the period of about 5 weeks before the judgment date the Appellant’s counsel did not apply to be granted another opportunity to address the court before judgment. It is also crystal clear that the parties were granted equal opportunity by the trial court to showcase their dispute as required by the rules of fair hearing. See: Orugbo v. Una (2002) NWLR (Pt.71) 1024 per Niki Tobi, J.S.C.
Since the right of address provided for by the rules of court and endorsed by the constitution is procedural and can be waived. The Appellant who did not apply to arrest the judgment fixed for 5th April, 2001 to enable his counsel address the Court, waived his right of address.
I therefore hold that the Appellant’s right to fair hearing was not in my way breached since he was not only given opportunity but equal opportunity to present his case at the lower court.
Bias is simply an opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the judge so influenced will be unable to hold an even scale. See: Kenon & Ors. v. Tekam & Ors. (2001) LPELR – SC.61/1995.
The sarcastic comments made by the learned trial Judge was directed to both counsel and such does not impugn bias against the Appellant. I also hold that the learned trial Judge did not show any likelihood of bias against the Appellant.
Issues 4 and 5 are resolved in favour of the Respondents.
With the issues as resolved above, I hold that the appeal has merit. It succeeds in part and is allowed. To the extent that I have allowed the appeal, I set aside the judgment of the lower court delivered on 5th April, 2001. I make orders as follows:
1. I declare that the Appellant Simon Apala Aboshi is the rightful holder of a DEEMED right of occupancy of plot No. BNA 2614 situate at Akpehe layout, Makurdi – Gboko Road, Makurdi.
2. I hereby restrain the 1st Respondent, his servants, agents and privies from further trespassing into or tampering with plaintiff’s plot No. BNA 2614 unless and until the deemed right of occupancy has been duly revoked.
3. Consequently, I revoke Exhibit Q (The grant of a right of occupancy No. BN778) dated 23rd August, 1993.
4. I award N50,000.00 general damages for trespass against the 1st Respondent.
MOHAMMED LADAN TSAMIYA, J.C.A.: I had read before now the draft of the lead judgment just delivered by my learned brother JUSTICE U. ONYEMENAM JCA. I am in complete agreement with the reasoning and conclusion in the appeal.
I also allow the appeal, set aside the judgment of lower court dated 05/04/2001, I abide by the consequential orders as reflected in the lead judgment.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother Onyemenam, JCA and I agree that this appeal ought to succeed in part and be allowed. I too therefore allow this appeal. I abide by all the consequential orders in the lead judgment, including the order for costs.
Appearances
A.T. Kehinde For Appellant
AND
P.I. Chiga (Mrs.).
M.I. Sule (Mrs.) ADCR
A.O. Aigbe For Respondent
