WAYMAKER PROPERTIES LTD v. JANYAU & ORS
(2021)LCN/15874(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 07, 2021
CA/ABJ/CV/839/2020
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
WAYMAKER PROPERTIES LTD (Appealing Through Its Lawful Attorney GYE-YE MACHE COMPANY LIMITED) APPELANT(S)
And
1. ZAIYANU JANYAU (Carrying On Business Under The Name And Style Of AZEJ GLOBAL SERVICES) 2. SARATU LAWAL MAMMAN (Carrying On Business Under The Name And Style Of AZEJ GLOBAL SERVICES) 3. MINISTER, FEDERAL CAPITAL TERRITORY ABUJA 4. ABUJA METROPOLITAN MANAGEMENT COUNCIL 5. FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION FROM ARISE FROM THE GROUNDS OF APPEAL
The law is settled to the effect that if issues are not distilled from a ground of appeal, the ground will be deemed abandoned and the appropriate order to make is to strike out that ground but the appeal cannot be dismissed on that premise except that is the only ground of appeal. See Itok vs Udoyo (2020) LPELR-52524; GE International Operations (Nig) Ltd vs Q. Oil and Gas Services Ltd (2016) 1-3 S.C. (pt III) 150. This is because appeals are argued on issues distilled from the grounds and not on the ground itself. See Adamu Sheidu vs The State (2014) 15 NWLR (pt 1429) 1. PER TOBI, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN RE-EVALUATE THE EVIDENCE OF FACT ADMITTED BY THE TRIAL COURT
In my opinion, the real issue before this Court is whether there was enough evidence before the lower Court to show that the decision reached is not based on perverse finding. I am in this appeal not required to re-evaluate the evidence but rather to find out whether based on the evidence before the Court, the decision of the lower Court can be sustained. In Egbe vs Adefarasin (1987) 1 S.C. 1, the Supreme Court held along this line thus:
“Now this Court as well as the Court of Appeal are appellate Courts. They do not try issues. Rather they examine the way issues had been tried by trial Courts in order to ensure that the case was properly tried.”
Similarly, the apex Court in Atanda & Ors vs Ajani & Ors (1989) 3 NWLR (pt III) 511 held as follow:
“In this respect, an appellate Court is only left with a duty to see:
(a) Whether there was evidence to support the findings and/or the decision of the trial Court.
(b) Whether the trial Court has made a correct assessment of the evidence before it.
(c) Whether the trial Court has wrongly accepted or rejected any evidence tendered at the trial.
Or
(d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case. See A. Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. 731 at 742, Mogaji & Ors. v. Odofin & Ors (1978) 4 S.C. 91. All that this means is that an appellate Court will not interfere with the findings of a trial Court unless it is obvious that that Court has not made good use of the unique advantage which it has of seeing and hearing the witnesses before it. See Fashanu v. Adekoya (1974) 1 All N.L.R. 35; Woluchem v. Gudi (1981) 5 S.C. 319.” PER TOBI, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISIDICTION
The finding of the lower Court in my opinion in very few words though not expressly has shown that it had no jurisdiction to entertain the action since the Plaintiff has no locus to institute the action. When a Court decides that it has no jurisdiction, the appropriate order to make in most cases depending on the reason for the decision will be to strike out the action. See Chief Okwu & Anor vs Chief Victor Umeh & Ors (2016) 1 S.C. (pt 1) 60; Ehuwa vs Ondo State Independence Electoral Commission (2006) LPELR-1056 (SC). Jurisdiction is what confers power on a Court to decide on a matter. This is the foundation of the power of the Court. This Court in Mobil Producing Nigeria Unlimited vs Suffolk Petroluem Services Limited (2017) LPELR-41734 (CA) per Jumbo-Ofor held in this regard thus:
“Jurisdiction is a threshold and hybrid issue of law which calls for immediate attention and resolution at any point it rears its head in the course of proceedings. This is because where jurisdiction is lacking, the Court will act in futility irrespective of how brilliantly the case would have been done. See some authorities….”
When a Court holds that it has no jurisdiction on a matter ordinarily it should not have powers to make any pronouncement denoting rights or liabilities to the parties before it. Once a Court holds it has no jurisdiction, every other decision affecting the rights of the parties become academic as those rights cannot be enforced. Any decision taking thereafter amounts to no issue. On the issue of the effect of a Court pronouncing on a matter after deciding it has no jurisdiction, the apex Court in Obi vs INEC (2007) 1 ANLRP 258 held:
“once a Court declines jurisdiction to entertain a suit, the only other step it could take in the matter is to make an order striking out the suit. Any other order or pronouncement made by the Court after declaring that it lacks jurisdiction to entertain a suit, is null and void and of no effect.” PER TOBI, J.C.A.
THE POSITION OF LAW ON DEFINITE OFFERING
As to what will amount to a definite offering, the document of offer or the statement of offer must be clear as to the terms of the contract without making reference to another document except of course if both documents can complete the terms of the contract. The point I am trying to make here is that the offer must be clear as to the terms not leaving room for double interpretation as to what the offer is. This offer must be unequivocally accepted without leaving room for double interpretation. In this respect, the apex Court case of Bilante Int’l Ltd vs NDIC (2011) 15 NWLR (pt 1270) is instructive. The Court held:
“It is trite that before any contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. lf the terms and conditions of the agreement are uncertain or vague as to defy ascertainment with reasonable degree of certainty, there can never be a valid agreement known to law which can be said to offer itself for enforceability. See Odutola v. Papersack (Nig.) Ltd. (2006) 18 NWLR (Pt.1012) Pg.470.
An offer must be accepted in order to crystallize into a contract. See Nneji v. Zakhem Con. (Nig.) Ltd. (2006) 12 NWLR (Pt.994) Pg.297.
An offer may be defined as a definite indication by one person to another that he is willing to conclude a contract on the terms proposed which when accepted will create a binding legal obligation. Such offer may be verbal, written or even implied from the conduct of the offeror. See Majekodunmi v. National Bank of Nigeria (1978) 3 SC 119 at Pg.129. Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt.928) Pg.547.” PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice Bello Kawu of the High Court of the Federal Capital Territory, Abuja delivered on 20/5/2020 in suit no: FCT/HC/CV/3146/2017. The facts that culminated into this appeal is that the Appellant who was the Claimant at the lower Court commenced an action through its Lawful Attorney GYE-YE MACHE COMPANY LIMITED against all the Respondents who were Defendants at the lower Court for a declaration of title to a plot of land known to all the parties as Plot No.139 Cadastral zone B15 of sector centre ‘A’ situate in Abuja. The Attorney of the Appellant had a Power of Attorney in his favour to carry out various activities in relation to the land including instituting this action. The property in dispute is Plot No. 139 Cadastral zone B 15 sector Centre A, Abuja. The real matter here deals with double allocation made by the 3rd – 5th Respondents of the same land (hereinafter referred to as the subject property) to the Appellant and the 1st and 2nd Respondents. The 3rd-5th Respondents had offered the said property to the Appellant in 2007 and then to the 1st and 2nd Respondents in 2014. The offer made to the Appellant was via Exhibit 1 while the offer to the 1st and 2nd Respondents was made via Exhibit 3. The acceptance of the offer made to the Appellant via Exhibit 1 was not done within the condition stated in the said Exhibit 1. The 3rd-5th Respondents offered the same property to the 1st and 2nd Respondents based on the premise that there was no acceptance from the Appellant and so the subject property was free from any encumbrance.
The case of the Appellant is that since the property was allocated to her, the 3rd-5th Respondents could not have reallocated the same property to anyone else especially the 1st and 2nd Respondents in the name in which they carry on business as a business name without first revoking the allocation made to it by serving her with revocation notice in line with the provision of the Land Use Act. The 1st and 2nd Respondents case on the other hand is that the 3rd-5th Respondents had the right to reallocate the property to them without giving revocation notice to Appellant because the offer made by the 3rd-5th Respondents to the Appellant was not accepted by her and so the 3rd-5th Respondents were free to re-allocate or offer the property to the 1st and 2nd Respondents. It is also the case of the 1st and 2nd Respondents that the offer of the property is not in line with the Land Use Act, consequent upon that, the provision of the Land Use Act as it relates to serving of revocation notice does not apply.
Pleadings were filed and exchanged, all parties called witnesses to testify on their behalf, at the end of the trial, written addresses were filed by all parties. Judgment was thereafter delivered against the claimant (now Appellant) and in favour of the 1st and 2nd Respondents who did not file a counter-claim in the lower Court. The judgment of the lower Court covering 18 pages is found on pages 344-361 of the record of appeal. The lower Court at page 358 of the records held as follows:
“My understanding of the condition contained in Exhibit ‘3’ is that the offer is to be accepted within two weeks by signing and returning a Development Lease Agreement and there is NO any evidence before this Court to show that the claimant did so within the two (2) weeks as expected in the letter. It is an elementary principle of contract that an offer lapses if it is not accepted within the period stipulated by the offer.”
Furthermore, the lower Court at page 360-361 of the records held as follows:
‘’It should be noted that a certificate of occupancy duly signed by the Minister of the Federal Capital Territory has been issued to AZEJ GLOBAL SERVICES after payment of all necessary fees and fulfilling all conditions. In view of the above, paragraphs 10 and 11 of the statement of claim of the Claimant are hereby expunged. In the final analysis the of the (sic)Plaintiff failed in its entirety and same is accordingly dismissed. The 1st and 2nd Defendant(sic) are thus the rightful owner of Plot no. 139 in cadastral zone B15 of Sector Centre A’ Abuja measuring approximately’.”
Dissatisfied with the judgment, the Appellant filed this appeal of 12 grounds contained in the notice of appeal, which is found on pages 362-369 of the record of appeal. The Appellant’s counsel in this appeal is Ayuba Abang Esq., who settled the Appellant’s brief of 26/10/2020. The Respondent’s counsel who settled the brief filed on 25/11/2020 is Canice I. Nkpe Esq. All the briefs were filed within time. The Appellant’s counsel in the brief of the Appellant formulated 3 issues for determination viz:
1. Whether the lower Court wrongly declined jurisdiction and then determined the merit of the same case?
2. Whether the lower Court wrongly held that the Appellant was not entitled to Notice of Revocation because she did not satisfy the condition of offer of the land?
3. Whether the lower Court wrongly declared the 1st and 2nd Respondents, proprietors of AZEJ GLOBAL SERVICE, as the rightful owners of Plot 139, Cadastral zone B15, Sector Centre A, Abuja in the absence of a successful Counter Claim?
In arguing the appeal on issue 1, the Appellant’s case is that the lower Court was wrong when it declined jurisdiction to hear the suit. Counsel referred to Frank & Ors vs Abdu (2002) LPELR-12178(CA). On the essence of a Power of Attorney, Counsel cited the cases of Ude vs Nwara & Anor and Ekengwu vs Ekengwu (2018) LPELR-45070(CA)(Pp.19-20,paras C-F) in submitting that since the power of Attorney was not meant to transfer title to the donor, the fact that it is unregistered does not affect the competence of the action. On whether the Appellant had the locus standing to institute the action based on the Power of Attorney, counsel referred to the cases of Vulcan Gases Ltd vs Gesellschaft Fur Ind. Gasverwertung A. G (2001) LPELR-3465(SC); Bala & Anor vs Hassan (2014) LPELR-23997(CA) when he submitted that the real party in the case is the Appellant himself and not the Attorney. Counsel further submitted that the proper order the lower Court ought to have made when it declined jurisdiction was to strike out the suit and not to dismiss same and to further grant the subject property to the 1st and 2nd Respondents who did not file a counter claim. For this proposition learned counsel referred to W.A.E.C vs Adeyanju (2008) LPELR-3467(SC) and Ani B. Barak (NIG) LTD & Anor vs Heritage Bank LTD (2017) LPELR-43195(CA) (Pp. 14-15, Paras. D-C). Counsel’s final submission on this issue is that this Court should resolve same in favour of the Appellant by nullifying the Order of dismissal and declaration of the 1st and 2nd Respondents as the owners of the land.
On issue 2, counsel submitted that the lower Court was wrong when it held that the Appellant did not satisfy the condition attached to the offer of the land and as such, was not entitled to be served a Notice of Revocation under the Land Use Act. Counsel further submitted that the land was offered to the Appellant by the 3rd Respondent by a letter titled “Accelerated Development Programme Within The Federal Capital Territory” with the condition that the said offer must be accepted within two weeks by obtaining, signing and returning a Development Lease Agreement. It is the submission of counsel that there is evidence of the acceptance of the offer though not in the way stated in the offer letter. The Appellant counsel submitted, could not get the Development Lease Agreement as required in the letter of offer because the 3rd Respondent frustrated all efforts to get same despite repeated demands. The Appellant was subsequently issued with a letter of acceptance/refusal of grant of right of occupancy in the Federal Capital Territory, Abuja bearing the name and particulars of the land in dispute. Counsel further submitted that, there was sufficient evidence before the lower Court to show that the Appellant attempted to and did satisfy the condition of offer of the land and since the land was properly allocated to the Appellant in accordance with the provisions of Section 5(1) of the Land Use Act, notwithstanding the title of the letter, the legal means by which the 3rd Respondent can withdraw the land from the Appellant is via issuance and service of a Notice of Revocation as provided in Section 28 of the Land Use Act. Counsel referred to the case of Wuyah vs Jama’a Local Govt, kafanchan (2011) LPELR-9078(CA), in further submitting that the Appellant was entitled to a Notice of Revocation since the Respondents’ witness admitted that the Appellant accepted the offer. It is counsel’s firm submission that this issue should be resolved in favour of the Appellant.
On issue 3, counsel submitted that the lower Court was wrong when it declared the 1st and 2nd Respondents, proprietors of AZEJ GLOBAL SERVICE, as the rightful owners of the property in the absence of any counter-claim, citing the cases of Nigeria Air Force vs Shekete (2002)18 NWLR (Pt.798)129 @ p.151, Nzenwata & Ors vs Nzenwata (2016) LPELR-41089 (CA), Bolou v Federal College of Education, Obudu & Anor (2019) LPELR-47465 (CA). On the allocation of the land to AZEJ GLOBAL SERVICES, counsel contended that it is null and void as contemplated by the provisions of Section 5(1) of the Land Use Act since Azej Global Services is not a legal personality, being a business name. Learned counsel submitted further that AZEJ GLOBAL SERVICES is not capable of sustaining legal rights and duties not been a legal personality referring to the cases of Kwage & Ors vs Upper Sharia Court Gwandu & Ors (2017) LPELR-42508 (CA), SBL Consortium Ltd vs NNPC (2011) LPELR-3074 (SC).
It is the submission of counsel in the alternative that even if this Court holds that Azej Global Service is a legal personality, since the offer to her is made later than the offer to the Appellant, the Appellant offer will stand above the offer to 1st and 2nd Respondents as it was first in time. Counsel referred to HO vs Abubakar & Ors (2016) LPELR-41635 (CA). It is the final submission of counsel that since the 1st and 2nd Respondents did not file a counter-claim, the lower Court was wrong to have granted the property to the 1st and 2nd Respondents. The Appellant wrapped up his argument by submitting that the appeal should be allowed and the judgment of the lower Court be set aside.
The 1st and 2nd Respondent’s counsel, Canice I. Nkpe Esq., attacked in the Respondent’s brief grounds 1,8,9,10,11 and 12 of the notice of appeal urging Court to strike them out as no issues was distilled from them. It is the submission of counsel that by law, those grounds are deemed abandoned, he cited the case of Klm Royal Dutch Airlines vs Jamilat Aloma (2018) 1 NWLR (Pt.1601) 473 at 493.
In arguing the appeal, the Respondent adopted the 3 issues formulated by the Appellant for determination. I will not repeat them here but will proceed to the submissions of learned counsel for the 1st and 2nd Respondents on the issues.
On issue 1, learned counsel submitted that from the evidence in chief of PW1 at the lower Court, it propelled the 1st and 2nd Respondents to challenge the locus of GYE-YE MACHE COMPANY LIMITED, to commence the suit on behalf of the Appellant. Learned Counsel went on to submit that the Appellant’s counsel seem to blow hot and cool in its submission in this regard referring to Osuji vs Ekeocha (2009) 16 NWLR (Pt.1166) 81 at 128. Learned Counsel also submitted that the cases of Ude vs Nwara & Anor (supra) and Ekengwu vs Ekengwu (Supra) cited by the Appellant are not in support of the Appellant’s position. The Learned Counsel to the Respondents viciously attacked paragraphs 4.5-4.17 of the Appellant’s Brief of Argument stating that the Appellant has not identified under which grounds of Appeal they fall into, thereby asking this Court to expunge the paragraphs from the Appellant’s Brief of Argument, he relied on the case of ETCO (NIG) Ltd vs Mr. Joseph Eme (2019) NWLR (Pt.1671)300 at 313-314. It is also submitted on behalf of the Respondents that the trial Court acted properly when it held that GYE- YE MACHE COMPANY LTD lacks the locus to ignite the jurisdiction of the Court, when the Court carried out its duty to pronounce on every issue submitted to it for adjudication, Counsel placed reliance on the cases of Titiloye & Ors vs Olupo & Ors (1991) LPELR- 3250 (SC), Nabore Properties Ltd vs Peace-Cover Nig Ltd (2014) LPELR- 22585 (CA). Counsel finally submitted that the lower Court did not decline jurisdiction to entertain the suit as the suit was not commenced by the Appellant’s Attorney, rather, they were commenced on behalf of the Appellant by her Attorney. He urged this Court to resolve this issue against the Appellant.
On issue 2, the learned Counsel to the 1st and 2nd Respondents argued that under Sections 28(1), (2), 29(1) and (2) of the Land Use Act, the Governor can revoke a Right of Occupancy for overriding Public interest. Counsel further submitted that the requirement for the service of a Notice of Revocation is contained in Sections 28(6) and 44 of the Land Use Act. Counsel is also of the firm opinion that Exhibit 1 which was given to the Appellant was an inchoate offer and that the Appellant did not accept same in writing within the stipulated two weeks, rather he filled and submitted Exhibit 2 which is a form for allottees of Statutory Right of Occupancy and therefore the failure to sign the Development Lease Agreement implies that no title over the land was passed to the Appellant hence he was not entitled to be served a Notice of Revocation. Counsel referring to Orianzi V A. G. Rivers State (2017) 6 NWLR (Pt.1561) 224 at 286-287 further submitted that neither the Appellant nor his Attorney had a right to the Plot of land at the time the grant was made to Azej Global Services. It is the submission of counsel that there are five ways of proving title and that the burden of proof is on the Appellant to establish his root of title to the subject matter of this appeal, reference was made in this regard to the cases of Obineche vs Akusobi (2010) 12 NWLR (Pt.1208)383 at 408-409, Agboola vs UBA PLC (2011) 11 NWLR (Pt.1258) 375 at 400-401, Chief Isaac Olokunlade V. Mr. Abegunde Samuel (2011) 17 NWLR (Pt.1276) 290 at 311-312. It is also submitted that the Appellant did not lead credible evidence at the lower Court to show title Counsel cited the cases of Kehinde vs Irawo (1973) NSCC 156 at 159, Anabaronye & ORS vs Nwakaihe (1997) 1 NWLR (pt.482)374 at 383. Counsel finally submitted that Exhibit 1 is preliminary to a contract and therefore not binding on the parties and to buttress his point, Counsel took solace in the decision of the apex Court in B.P.S Construction & Engineering Co. Ltd vs Federal Capital Development Authority (2017) 10 NWLR (Pt.1572)1; INEC vs Atuma (2013) 11 NWLR (Pt.1366)494 at 528-529. The lower Court, counsel submitted, was not wrong and indeed the Court was right when it held that the Appellant was not entitled to a notice of revocation.
On issue 3, it is the firm submission of counsel that the lower Court was right when it acted on documents tendered and evidence given to make pronouncement in favour of the 1st and 2nd Respondents even when they did not file a counter-claim. Counsel is also of the firm opinion that since Azej Global Services is duly registered under Part B of the Companies and Allied Matters Act, it can sue and be sued in its registered name and that the subject property was rightly allocated to her under Section 5(1)(a) of the Land Use Act, referring to Dairo V. Regd. Trustees TAD, LAGOS (2018) 1 NWLR (Pt.1599) 62 at 84. In wrapping up his argument, Counsel urged this Court to decide all the issues raised in favour of the 1st and 2nd Respondents, to dismiss the appeal and affirm the judgment of the lower Court.
The 3rd -5th Respondent did not file any brief as it appears the battle is between the Appellant on one hand and the 1st and 2nd Respondents on the other hand.
On receipt of the 1st and 2nd Respondent’s Brief of Argument, the Appellant filed a Reply Brief. The reply brief in my opinion is more of taking a second bit at the cherry or an amplification of the Appellant’s brief. This is not the purpose of a reply brief. A reply brief is to reply to the new issues raised in the Respondent’s brief and not to reinforce or re-echo the arguments in the Appellant’s brief. The reply brief is not to re-emphasis the argument in the Appellant’s brief. See Oguanuhu & Ors vs Chiegboka (2013) 6 NWLR (pt 1351) 588; Gwede vs Delta State House of Assembly & Anor (2019) LPELR-47441. It has become fashionable for counsel to want to always file reply brief but in doing so, counsel should bear in mind the rules governing same. Most times, counsel files reply brief as a tradition and as an obligation. This is not what a reply brief is all about. The point must be made that cases are not won based on the length and the number of briefs filed. It is mostly won on the appreciation of the facts and the application of the law to the facts. A situation where counsel feels that a reply brief must be filed at all times should not to be encouraged. In fact, it is a sign of skillfulness for Appellant to know when to file and when not to file a reply brief. The point been made is that it is not in all cases or situations that a reply brief must be filed. A word of advice to legal practitioner will be that, reply brief should not be filed just to make clients happy.
The only argument in the reply brief that is fit as reply is the argument that the submissions in Paragraphs 4.5-4.17 falls under issue 1 which is distilled from grounds 2 and 3. Apart from that, I discontinuance all the other arguments therein.
Before I go into the merit of the appeal, it will not be out of place to address the argument by the 1st and 2nd Respondents to the effect that issues were not distilled from grounds 1,8,9,10,11 and 12 of the notice of appeal. The law is settled to the effect that if issues are not distilled from a ground of appeal, the ground will be deemed abandoned and the appropriate order to make is to strike out that ground but the appeal cannot be dismissed on that premise except that is the only ground of appeal. See Itok vs Udoyo (2020) LPELR-52524; GE International Operations (Nig) Ltd vs Q. Oil and Gas Services Ltd (2016) 1-3 S.C. (pt III) 150. This is because appeals are argued on issues distilled from the grounds and not on the ground itself. See Adamu Sheidu vs The State (2014) 15 NWLR (pt 1429) 1.
I have looked at the grounds of appeal challenged herein by the Respondents in their brief and as submitted by counsel, to a large extent, the Respondent’s counsel is correct as there were no issues distilled from most of those grounds except for ground 9. I therefore strike out grounds 1, 8,10,11 and 12 of the notice of appeal as no issues were distilled by the Appellant from those grounds which had to do with fair hearing, correct interpretation of Section 5 of Land Use Act and Section 44 of the 1999 Constitution and the proper evaluation of the evidence before the lower Court. Striking out these grounds do not have much of an effect on the appeal as the real issue for determination in this appeal is properly captioned in the three issues which the Appellant’s counsel formulated which the counsel to 1st and 2nd Respondents adopted. The case belongs to the parties and if they are at idem as to the issues for determination, I should be wary to formulate my own issues for determination. See Daniel vs INEC & Ors (2015) 9 NWLR (pt 1463) 113.
In my opinion, the real issue before this Court is whether there was enough evidence before the lower Court to show that the decision reached is not based on perverse finding. I am in this appeal not required to re-evaluate the evidence but rather to find out whether based on the evidence before the Court, the decision of the lower Court can be sustained. In Egbe vs Adefarasin (1987) 1 S.C. 1, the Supreme Court held along this line thus:
“Now this Court as well as the Court of Appeal are appellate Courts. They do not try issues. Rather they examine the way issues had been tried by trial Courts in order to ensure that the case was properly tried.”
Similarly, the apex Court in Atanda & Ors vs Ajani & Ors (1989) 3 NWLR (pt III) 511 held as follow:
“In this respect, an appellate Court is only left with a duty to see:
(a) Whether there was evidence to support the findings and/or the decision of the trial Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(b) Whether the trial Court has made a correct assessment of the evidence before it.
(c) Whether the trial Court has wrongly accepted or rejected any evidence tendered at the trial.
Or
(d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case. See A. Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. 731 at 742, Mogaji & Ors. v. Odofin & Ors (1978) 4 S.C. 91. All that this means is that an appellate Court will not interfere with the findings of a trial Court unless it is obvious that that Court has not made good use of the unique advantage which it has of seeing and hearing the witnesses before it. See Fashanu v. Adekoya (1974) 1 All N.L.R. 35; Woluchem v. Gudi (1981) 5 S.C. 319.”
The real puzzle to resolve in this appeal is whether the lower Court was right in holding that there was no valid contract between the 3rd-5th Respondents and the Appellant over the allocation of the subject property which invariably implies that the 3rd-5th Respondents were not under any obligation to serve the Appellant Notice of Revocation before relocating the subject property to the 1st and 2nd Respondents. In solving this puzzle, the question is whether the offer that was earlier made by the 3rd-5th Respondents to the Appellant in 2007 was accepted and whether there was a contract between the Appellant and the 3rd -5th Respondents over the subject property. The next issue will now be whether such notice was served on the Appellant. On the other hand, if the answer to the earlier question is negative, it implies that no title was transferred to the Appellant and therefore the Appellant will not be entitled to any revocation notice. The lower Court has held in this regard that the Appellant did not satisfy the condition for the grant and therefore not entitled to subject property. Let me quote the lower Court at page 357 of the records when the Court held:
“On issue four, I am satisfied that the claimant did not satisfy the conditions of grant as contained in Exhibit ‘3’ to entitle her to the subject matter of this suit.”
The issue here is whether based on the evidence the lower Court was confronted with, whether the Court’s decision was in line with the evidence? This is my duty here.
One document which will be on the front burner of this appeal is Exhibit 1 which is the letter of offer for the ‘Accelerated Development Programme within the Federal Capital Territory.’ There is the argument, whether the transaction between the Appellant and the 3rd-5th Respondents can be governed by the Land Use Act or any other law apart from the Land Use Act. In my opinion with respect to both counsel, it is a needless argument which does not affect the way this appeal should go. In the first place, the Land Use Act is the major legislation dealing with the ownership and transfer of land in Nigeria. All land in Nigeria is within the purview of the Land Use Act and so the argument that the transaction cannot be regulated by the Land Use Act is misplaced in my view. That notwithstanding, the main issue here is not whether the Land Use Act is applicable but rather, whether there is a transfer of title of the subject property by way of a definite offer with a definite acceptance between the Appellant and the 3rd-5th Respondents. This appeal in my opinion relates more to the law of contract than land law.
Before I get carried away, let me address the issues for determination. I had mentioned earlier, I will adopt the issues formulated by the Appellant which the 1st and 2nd Respondents also adopted. For completeness and clarity the following are the issues for determination in this appeal:
1. Whether the lower Court wrongly declined jurisdiction and then determined the merit of the same case?
2. Whether the lower Court wrongly held that the Appellant was not entitled to Notice of Revocation because she did not satisfy the condition of offer of the land?
3. Whether the lower Court wrongly declared the 1st and 2nd Respondents, proprietors of AZEJ GLOBAL SERVICE, as the rightful owners of Plot 139, cadastral zone B15, sector Centre A , Abuja in the absence of a successful Counter Claim?
I will take the issues one after the other. Naturally, I will start with issue 1 as number 1 comes before number 2. The lower Court at page 356 of the record (page 13 of the judgment) held that the power of attorney was not registered and therefore it could not have passed title to the attorney so as to give the attorney the locus to institute the action against the Respondents, the Defendants in the lower Court. Haven so held, the lower Court went on to consider the merit of the case and finally decided the case against the Appellant and in favour of the Respondents. The view of the Appellant was that the lower Court was wrong to have gone ahead to consider the merit of the case haven held that the Appellant had no locus to institute the action which invariably deprived the Court of the jurisdiction to delve into the matter. The 1st and 2nd Respondents in their brief submitted that the lower Court did not make an order that the Appellant did not have the locus to institute the action. Can this be true? The only way to know is to look at the judgment of the lower Court. This is what the lower Court said in the judgment at page 356 of the record (page 13 of the judgment)
“I am therefore in total agreement with the learned Counsel for the 1st and 2nd Defendant(sic) that the Claimant’s Attorney having not acquired any interest whatsoever in the subject matter of this suit, lacks the locus the (sic) ignite the jurisdiction of the Honourable Court to entertain this action.”
The finding of the lower Court in my opinion in very few words though not expressly has shown that it had no jurisdiction to entertain the action since the Plaintiff has no locus to institute the action. When a Court decides that it has no jurisdiction, the appropriate order to make in most cases depending on the reason for the decision will be to strike out the action. See Chief Okwu & Anor vs Chief Victor Umeh & Ors (2016) 1 S.C. (pt 1) 60; Ehuwa vs Ondo State Independence Electoral Commission (2006) LPELR-1056 (SC). Jurisdiction is what confers power on a Court to decide on a matter. This is the foundation of the power of the Court. This Court in Mobil Producing Nigeria Unlimited vs Suffolk Petroluem Services Limited (2017) LPELR-41734 (CA) per Jumbo-Ofor held in this regard thus:
“Jurisdiction is a threshold and hybrid issue of law which calls for immediate attention and resolution at any point it rears its head in the course of proceedings. This is because where jurisdiction is lacking, the Court will act in futility irrespective of how brilliantly the case would have been done. See some authorities….”
When a Court holds that it has no jurisdiction on a matter ordinarily it should not have powers to make any pronouncement denoting rights or liabilities to the parties before it. Once a Court holds it has no jurisdiction, every other decision affecting the rights of the parties become academic as those rights cannot be enforced. Any decision taking thereafter amounts to no issue. On the issue of the effect of a Court pronouncing on a matter after deciding it has no jurisdiction, the apex Court in Obi vs INEC (2007) 1 ANLRP 258 held:
“once a Court declines jurisdiction to entertain a suit, the only other step it could take in the matter is to make an order striking out the suit. Any other order or pronouncement made by the Court after declaring that it lacks jurisdiction to entertain a suit, is null and void and of no effect.”
The question then is that the lower Court haven held that the Appellant had no powers to ignite the jurisdiction of the Court, should the lower Court have gone ahead to determine the suit on the merit and more specifically in favour of the Respondent in declaring in express terms that the subject property belong to the 1st and 2nd Respondents? It is my view that haven held that the Appellant lacks the locus to institute the action, the lower Court should have struck out the suit and not to make an order declaring the 1st and 2nd Respondents owners of the subject property. See Wema Bank vs Crestwood Holdings Ltd (2019) LPELR-46776(CA). Even if the lower Court being a Court of first instance decides to look at the merit of a Court after deciding that it had no jurisdiction, this it must do in the alternative and not on the main as the lower Court has done in this case. The final order of the Court should not be the order the lower Court made in the judgment, rather as an alternative should this Court hold that the issue of locus standi is overruled. The lower Court neglected its finding on the issue of locus standi and went on to dismiss the Appellant’s claim and declared the 1st and 2nd Respondents as the owners of the land. The lower Court was wrong to have so held in the light of upholding the submission of the 1st and 2nd Respondents that the Court lacked jurisdiction.
Let me look at this issue in greater details and consider whether the decision of the lower Court was right when it held that the Appellant lacked the locus standi to institute the action before it. I make bold to say that the decision in this respect is wrong. The Appellant stated the correct position of the law when it submitted that the proper party in an action commenced or instituted through an attorney is the donor of the Power of Attorney and not the donee. The law is settled that the real party in an action which is instituted through an attorney is the Donor of the Power of Attorney and not the donee. A power of Attorney is the authority given by one person called the Donor to another called the donee to carry out actions which the donor could carry out by himself. The Power of Attorney gives authority to the donee as agent to carry out some acts on the donor’s behalf. In Chime & Ors vs Chime & Ors (2001) LPELR-24858, the apex Court stating the meaning of a power of attorney held:
“A Power of Attorney is a document, and may be under seal, which authorises a person to act for another person as his agent. The person who donates the power is called the ‘donor’ while the person donated is called the ‘donee’. The power conferred on the donee may be either general or special.
It is inconceivable that given the circumstances described above the right of the donor over certain property will be subordinated to that of the donee by reason only that he has, as it were, made a delegation of such right to the latter. The better view is that so long as the donee has not exercised the power comprised in the Power of Attorney, it is clearly open to the donor to exercise the same power. Therefore, where the donee has in fact exercised the power under the Power of Attorney the donor’s power in this regard expires.”
Sounding more specific and relevant, the real Appellant is Waymaker Properties, but for whatever reason, she is suing through the attorney Gye-Ye Mache Company Limited. That the case is instituted in the name of the donor of the Power of Attorney but prosecuted by the donee of the Power of Attorney does not make it incompetent. See Nwankwo vs Oforkansi & Anor (2016) LPELR-40170 (CA). This is the law as properly stated by the Appellant’s counsel. In addition to the cases referred to by counsel, I wish to add a case or two to buttress the position of the law. See Ibrahim & Ors vs Obaje (2017) S.C. (pt III) 132; Okafor vs A.G. Rivers State & Ors (2012) LPELR-14243 (CA). From the judgment of the lower Court, it is clear that the lower Court arrived at the decision it did because it operated from a wrong perspective, that is to say that the lower Court saw the attorney as the party and therefore since the power of attorney is unregistered and thereby not passing title of the property to the donee, the said donee does not have the locus to institute the action. This position would have been correct if the party before the Court was the donee of the Power of Attorney. The Appellant who was the Plaintiff in the lower Court is not the Attorney but rather Waymaker Properties. There is no ground to challenge the locus of Waymaker Properties as the original offer was made to her. She does have a right to protect and therefore the appropriate party to invoke the jurisdiction of the Court to enforce her right over the property.
Before I finally resolve this issue one way or the other, permit me to briefly comment on the need to register the Power of Attorney and what is the effect of an unregistered Power of Attorney. The law generally is that a Power of Attorney normally needs to be registered however a Power of Attorney does not pass title of land to the holder of the Power of Attorney. See Abubakar vs Waziri & Ors (2008) 14 NWLR (pt 1108) 507; Murphis Burger Ltd & Anor vs Thomas & Ors (2019) LPELR-47319 (CA). A Power of Attorney involving land will need to be registered but a power of attorney to sue on behalf of another does not necessarily have to be registered once it does not relate to land.
I have no difficulty in resolving in favour of the Appellant.
On issue 2, the lower Court held that the Appellant was not entitled to Notice of Revocation because there was no valid contract of the allocation of the subject property to the Appellant. The lower Court held this position based on the premise that the offer made by the 3rd – 5th Respondents was not accepted by the Appellant. The 1st and 2nd Respondents agreed in their brief in this appeal with the position of the lower Court. The Appellant on the other hand submitted that the 3rd-5th Respondents did not make it possible for her to accept the offer in the way she ought to accept the offer as stated in Exhibit 1. One thing that is clear is that the acceptance of the offer was not accepted within the period and the manner the Appellant was supposed to accept the offer as stated in Exhibit 1.
I had stated earlier in this judgment that the issues in this case boarders more on the law of contract than land law. In the circumstance, a little excursion into the law of contract will not be out of place. I do this with caution so that I do not take us into undergraduate class on contract. For there to be a valid contract there must be a definite offer which must be definitely accepted. There must be consideration and of course intention to create legal relationship. See Omega Bank (Nig) Ltd vs O.B.C. Ltd (2005) LPELR-2636 (SC); Tsokwa Marketing Co., (Nig) Ltd vs Bank of the North Ltd (2002) LPELR-3268 (SC).
As to what will amount to a definite offering, the document of offer or the statement of offer must be clear as to the terms of the contract without making reference to another document except of course if both documents can complete the terms of the contract. The point I am trying to make here is that the offer must be clear as to the terms not leaving room for double interpretation as to what the offer is. This offer must be unequivocally accepted without leaving room for double interpretation. In this respect, the apex Court case of Bilante Int’l Ltd vs NDIC (2011) 15 NWLR (pt 1270) is instructive. The Court held:
“It is trite that before any contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. lf the terms and conditions of the agreement are uncertain or vague as to defy ascertainment with reasonable degree of certainty, there can never be a valid agreement known to law which can be said to offer itself for enforceability. See Odutola v. Papersack (Nig.) Ltd. (2006) 18 NWLR (Pt.1012) Pg.470.
An offer must be accepted in order to crystallize into a contract. See Nneji v. Zakhem Con. (Nig.) Ltd. (2006) 12 NWLR (Pt.994) Pg.297.
An offer may be defined as a definite indication by one person to another that he is willing to conclude a contract on the terms proposed which when accepted will create a binding legal obligation. Such offer may be verbal, written or even implied from the conduct of the offeror. See Majekodunmi v. National Bank of Nigeria (1978) 3 SC 119 at Pg.129. Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt.928) Pg.547.”
Similarly, in Neka B.B.B. Manufacturing Co Ltd vs ACB (2004) 1 S.C. (pt 1) 32, it was held:
“It has been said that an offer, capable of being converted into an agreement by acceptance, must consist of a definite promise by the offeror to be bound provided that certain specified terms are accepted. The offeror must have completed his share in the formation of a contract by finally declaring his readiness to undertake an obligation upon certain conditions, leaving to the offeree the option of acceptance or refusal. He must not merely have been initiating negotiations from which an agreement might or might not in time result. Negotiations may involve the adjustment of so many questions of detail that the Courts will require cogent evidence of an intention to be bound before they will find the existence of an offer capable of acceptance. See Cheshire and Fifoot’s Law of Contract, 9th edition, pages 27 and 31 .”
In this regard, we can once again look at the facts before the lower Court. The 3rd Respondent under the Accelerated Development Programme within the Federal Capital Territory scheme offered the subject property, that is Plot 139, Cadastral Zone B 15, Sector Centre A, Abuja to the Appellant. This offer was made by a letter which was admitted as Exhibit 1. This letter stated in clear terms how the acceptance of the offer should be made and the period within which the acceptance should be made. The letter stated clearly that the offer should be accepted within two weeks and this will be done by the obtaining, signing and returning of a Development Lease Agreement. In Exhibit 1, the relevant portion after the approval states the condition for the approval in these words:
“……. Under the following condition:
That you accept this offer in writing within two (2) weeks from the date of this letter by obtaining signing and returning, a Development Lease Agreement containing the terms and conditions of the offer to this office for perfection please.”
From the content of Exhibit 1, the real terms and conditions of the offer is contained in the Development Lease Agreement which is more of the letter of acceptance. There is a definite offer from Exhibit 1 but that alone does not make a valid contract. As earlier stated, there must be acceptance of the offer. Once there is a stated date and manner of acceptance, the offerree must compel with the method stated therein. Sounding more specific, the only acceptance which will make the contract valid is if the acceptance is made in the way and manner stated in Exhibit 1. This means that the Appellant should have accepted the offer within two weeks from when the offer was made and the acceptance will be by obtaining, signing and returning a Development Lease Agreement. What is clear from the record is that the Appellant did not accept the offer in the way stated in Exhibit 1.
The Appellant said he went to the 3rd Respondent asking for the Development Lease Agreement but he was not given. This, the Respondent denied. In the light of that, the onus is on the Appellant to show that he made efforts to get the agreement from the 3rd Respondent since she is the one making the allegation. See Dasuki vs FRN & Ors (2018) 10 NWLR (pt. 1627) 320; Jimoh vs Hon. Minister Federal Capital Territory (2018) LPELR-46329 (SC).
I have gone through the record of appeal and I do not see any document that shows a request from the Appellant for the Development Lease Agreement. The Appellant did not obtain, sign and return the said agreement to the 3rd Respondent talkless of doing that within 2 weeks. What then is the effect of this?
The law is settled and it is to the effect that once there is a specific way stated as to how and when the acceptance of an offer can be done, the party accepting the offer has no other option but to abide by the way and manner stated by the offer for there to be a valid contract. The condition precedent stated for how the contract will be valid in law must be complied with otherwise the contract will not be valid. In FGN & Ors vs Zebra Energy Ltd (2002) 12 S.C. (pt II) 136, the Supreme Court held:
“Where an offer is subject to condition, the formation of the contract is postponed until the happening of the event on which the offer is conditioned. If the condition of the offer is that unless something is done within a stipulated time, the offer is determined, such an offer cannot be accepted after the happening of the event. However, it is not unusual for an offer to contain the terms of a prospective contract. Sometimes these terms are described as conditions. The acceptance of an offer which contains terms or conditions of the prospective contract brings into existence a binding contract on those terms, although the liability of a party may be suspended until the condition is fulfilled.”
When the acceptance is not made at the time the acceptance is to be made, at the expiration of the time, the offer is said to have elapsed and cannot be legally an acceptance if made after then. In this respect, the case of M. O. Kanu Sons & Co., Ltd vs FBN Plc (2006) 3 FWLR (pt 332) 5581 is instructive where the Supreme Court held:
“It is settled law that if time is made the essence of an agreement and the time frame is not met by performance or acceptance within the time stipulated, the offeror will not be held to a contract.
Further, an offer may only be accepted in the manner and terms attached to the offer. See College of Medicine v. Adegbite (1973) 5 S.C. (Reprint) 106; (1973) 5 S.C. 149. In determining whether there has been an acceptance, the total circumstances surrounding the offer must be taken into consideration. See Majekodunmi v. National Bank of Nigeria (1978) 3 S.C. (Reprint) 82; (1978) 3 S.C. 119 at 126-127.”
When the acceptance is not made in the way stated, any other means of acceptance will amount to a counter offer which the other party will have to accept to amount to a valid contract. See U.B.A. Ltd vs Tejumola & Sons Ltd (1988) 2 NWLR (pt 79) 662.
The Appellant did not accept the offer in the way and manner stated in Exhibit 1 and indeed the acceptance, if any at all, was not made within the time frame stated in Exhibit 1. The Appellant seem to want to rely on the evidence of the Respondent’s witness when he said that the Appellant accepted the offer of the 3rd Respondent. In this respect, the Appellant relied on Exhibit 2 which is the same document as Exhibit D2, letter of acceptance/refusal of offer of grant of right of occupancy in the FCT Abuja of the Appellant. This letter is not in all intent and purposes the same with Development Lease Agreement. Exhibit 2 is acceptance of a grant of a right of occupancy and not an execution of a Development Lease Agreement. That apart the oral admission by the witness of the Respondent that the Appellant accepted the offer contained in Exhibit 1 cannot vary or contradict the mode of acceptance stated in Exhibit 1. See Arije vs Arije & Ors (2018) LPELR-44193 (SC).
The implication of this is that there was no contract between the Appellant and the 3rd Respondent which transferred the subject property to the Appellant. This finding by necessary implication means that since no property was passed to the Appellant, the Appellant is not entitled to any notice of revocation as only property legally transferred to the Appellant will require to be revoked by a notice of revocation before such property can be reallocated to someone else for public interest. To this extent, I agree with the lower Court that the Appellant is not entitled to a notice of revocation since the offer made by Exhibit 1 was not accepted by the Appellant. I resolve this issue in favour of the 1st and 2nd Respondents.
The last issue is issue 3. The lower Court at page 361 of the record (page 18 of the judgment) held:
“The 1st and 2nd Defendant (sic) are thus the rightful owner of plot No. 139 in Cadastral Zone B 15 Sector Centre A’ Abuja measuring approximately.”
The Appellant’s counsel has submitted that the lower Court was wrong in making this order since the 1st and 2nd Respondents did not file a counter-claim. The 1st and 2nd Respondents’ counsel on the other hand submitted that since the 3rd Respondent made allocation of the same land to the 1st and 2nd Respondents and since particularly the lower Court has held that the Appellant was not entitled to notice of revocation, it only stands to reason that the lower Court would grant the title of the land to the 1st and 2nd Respondents who have a better title.
Let me make some clear legal position in addressing this issue. When there are people with competing interest over a parcel of land from the same source, title will be given to the person who is able to prove a better title especially for the person that was first in time and who has a stronger title. See Ilona vs Idakwo & Anor (2003) 11 NWLR (pt. 830) 53.
It is also true that any party seeking title to land must prove his title in any of the five ways of proving title. The five ways are as established in the case of Idundun vs Okumagba (1976) 9-10 S.C. 224. This position has received a lot of judicial pronouncement. Let me just mention the case of Soronnadi & Anor vs Durugo & Anor (2018) LPELR-46319 where the apex Court held as follows:
“An accepted principle in the establishment of ownership of land which has now become trite is encapsulated in the case of Idundun v Okumagba (1976) 1 NMLR 200; (1976) 9-10 SC 224 where the Supreme Court held that ownership of land in dispute can be proved by any of the five ways namely –
(i) By traditional history
(ii) By production of title document
(iii) By acts of ownership
(iv) By acts of long possession
(v) By proof of possession of the connected land.”
When it comes to proving title, a Court cannot accept the admission of the other party as admission does not amount to proving title to land. See Chukwu vs Okoh (2016) LPELR-42117 (CA). In Anyanru vs Mandilas Ltd (2007) 10 NWLR (pt. 1043) 462, the apex Court drove home this point in these words:
“The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the appellant in the present case is trite.
A claim for a relief of declaration, whether of title to land or not, is not established by an admission by the defendant, because the plaintiff must satisfy the Court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. It is the law that a Court does not grant declaration on admission of parties because the Court must be satisfied that the plaintiff on his own evidence, is entitled to the relief claimed. See David Fabunmi v. Abigail Ade Agbe (1985) 1 NWLR (Pt. 2) 299 at 318; Kodilinye v. Odu (1935) 2 WACA 336; and Woluchem v. Gudi (1981) 5 SC 29; Ogundairo & Ors. v. Okanlawon & Ors (1963) 1 All NLR 358; Bello v. Eweka (1981) 1 SC 101; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Ogunjuwon v. Ademola (1995) 4 NWLR (Pt. 387) 254; Kwajaffa v. Bank of the North Ltd (2004) 13 NWLR (Pt. 889) 146 at 172; and Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 214. In this respect, it is for the Plaintiff to prove his case and not for the Defendant to disprove the Plaintiff’s claim. Therefore, where the Plaintiff on his own evidence failed to prove his claim for declaration, his claim must be dismissed. See Agbana v. Owa (2004) 13 NWLR (Pt. 889) 1 at 17.”
One more thing, it is also the law that, the mere fact that the Plaintiff could not prove title to the land in dispute does not mean that the Court will award the title of the land to the Defendant automatically in the absence of a counter-claim. See Nwavu & Ors vs Okoye & Ors (2008) LPELR-2116 (SC). In this respect, the Supreme Court in Olubodun & Ors vs Lawal & Anor (2008) LPELR-2609 (SC) drove home this point in these words:
“In concluding this perhaps lengthy judgment, I wish to state that since on their own admission at page 8 paragraph 6.1 of the Appellants’ brief, that the Appellants never counter-claimed, even if the Respondents’ action had been or was dismissed, it will not automatically mean that the Appellants had won or been awarded title of the land in dispute. In the case of Obi Ezewani – The Obi of Ogwsashiukwu v. Obi Onwordi & Ors (1986) 4 NWLR (Pt.33) 27, it was held that a plaintiff’s claim in a land dispute, was dismissed, does not automatically mean that the land in dispute, (without a counter-claim) belongs to the defendant. See also the cases of lkoku & Ors. v. Ekeukwu & Ors (1995) 7 NWLR (Pt.410) 637; (1995) 7 SCNJ 190 and Chief Eyo Ogboni & 2 Ors v. Chief Oja Ojah & 5 Ors (1996) 6 NWLR (pt.454) 272 @ 294; (1996) 6 SCNJ 140 just to mention but a few. In the case of Adone & 2 Ors. v. Ikebudu & 5 Ors (2001) 7 SCNJ 513 @ 529-530; (2001),14 NWLR (Pt.733) 385 this Court – per Ayoola, JSC, held also that the dismissal of a plaintiff’s claim for declaration of title, does not result in and it is not tantamount to any award to the defendant who did not file a counter-claim.
In fact, even where there is a counter-claim or cross-action and the plaintiff in the main action fails, it does not necessarily follow that the cross-action succeeds unless findings are made in favour of the plaintiff in the cross-action entitling him to succeed. See the case of Amadi & Co. v. Ohuru & Ors (1978) 6-7 S.C. 217; (1978)11 NSCC 436 cited in the case of Orianwo & 4 Ors. v. Okene & 2 Ors (2002) 6 SCNJ 249 @ 276; (2002) 14 NWLR (Pt 786) 156 – per Ogundare, JSC. This is because, the cross-action, is an independent action by itself and the plaintiff therein, can only succeed on the strength of his own case and not on the weakness of the defence.”
In the absence of a counter-claim, the lower Court has no powers to declare the 1st and 2nd Respondents the owners of the land. This is going outside the case presented by the parties and the lower Court will be seen as going into the arena which he is not permitted to do in law. See Suberu vs State (2010) 3 S.C. (pt 11) 105; Pollyn & Ors vs Miejene & Ors (2011) 14 NWLR (pt 1321) 567. A Court is not a father Christmas that gives out gifts to children who pays him a visit during Christmas. The decisions of Courts are not based on emotion, sentiment or speculation but rather on proved evidence and the application of the law. It is the training of a judge to look at for evidence that supports the case of any of the parties as the Court is an unbiased umpire.
See Kaydee Venture Ltd vs The Hon. Minister FCT & Ors (2010) 7 NWLR (pt. 1192) 171. Conscious of that duty and responsibility, a Court can only use what is presented to it as what you give a Court is what you get. The 1st and 2nd Respondents did not ask for any relief by way of counter-claim, the lower Court was out of order in declaring the 1st and 2nd Respondents as the owners of the land, that is the subject property. The Appellant has referred to some cases. Let me add one more to the list. This is the case of Eyigebe vs Iyaji (2013) 11 NWLR (pt1367) 407 where the Supreme Court held thus:
“It is pertinent in this respect to relate and closely review the pleadings as well as the evidence given by both parties at the trial Court. This is apt especially where the law is well settled that it does not lie within the power of a Court to grant a relief not claimed by a party on his pleadings. The following authorities in the cases of Edebiri V. Edebiri (1997) 49 LRCN 919 at 940; Odukwe V. Ogunbiyi (1998) 6 SCNJ 102 and Eyo Ogboni V. Oja Ojah (1996) 6 SCNJ 140 are very relevant on the principle enunciated.
This Court while laying down the principle of law in the foregoing authorities for instance affirmatively held that the Court is without power to award a relief which a claimant did not ask for.
Similarly, a relief which is inconsistent with the claim should not be granted because the Court should not be seen as a charitable institution. It would further follow deductively that a defendant should not also be awarded a remedy which he did not ask for either by way of a counter-claim or a cross-appeal.”
The 1st and 2nd Respondents haven not filed a counter-claim is not entitled to be granted ownership of the land.
In the circumstance, I do not think I should determine here whether the 3rd Respondent was right in granting allocation of the subject property to the Azej Global Services not been a legal person under the law. This will be an academic exercise which Courts are not to go into. See Salik vs Idris & Ors (2014) 5 S.C. (pt II) 45. It will not be an eventful venture to go into the propriety of the 3rd Respondent allocating the subject property to AZEJ GLOBAL SERVICES which is a registered business name and not a limited liability company. I have no difficulty in resolving this issue in favour of the Appellant.
In this judgment, I resolved issues 1 and 3 in favour of the Appellant and issue 2 in favour of the 1st and 2nd Respondents. How this appeal will go will now depend on the relief sought. The Appellant in this appeal is seeking for the order:
“AN ORDER allowing this appeal; upturning the judgment of the trial Court dated 20th May, 2019 delivered by Hon. Justice Bello Kawu and in its place, enter judgment in terms of the reliefs sought by the Appellant as Claimant in her Further Amended Writ of summons dated 21st March, 2019 and filed on 22nd March, 2019.”
This appeal succeeds in part only to the extent that the judgment of the lower Court to the effect that the land, Plot No. 139 in Cadastral Zone B15 of Sector Centre A belong to the 1st and 2nd Respondents is set aside. The aspect of the judgment dismissing the claim of the Appellant in the lower Court is affirmed.
Parties are to bear their own cost.
RITA NOSAKHARE PEMU, J.C.A.: I read before now, the judgment just delivered by my brother EBIOWEI TOBI J.C.A.
I agree with his reasoning and conclusions.
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This appeal succeeds in part.
The judgment of the Court below which directed that the land, the subject matter of this appeal belongs to the 1st and 2nd Respondents is hereby set aside. This is because there is sufficient evidence to buttress the assertion. As he who avers must prove. See EYIGEBE V IYAJI (2013) 11 NWLR (part 367) @ 407.
However, part of the judgment dismissing the Appellant’s claim in the lower Court is hereby affirmed by me.
I abide by the consequential order made as to costs that parties are to bear their own cost.
HAMMA AKAWU BARKA, J.C.A.: Having carefully studied the record of proceedings and the submissions of learned Counsel, I find the resolution of the issues by my learned brother Ebiowei Tobi JCA agreeable to me and I have nothing useful to add.
The consequence is that this appeal succeeds in part and is allowed in part.
I abide on all consequential orders made in the lead judgment including that as to costs.
Appearances:
Ayuba Abang For Appellant(s)
C. I. Nkpe For Respondent(s)
