ZAHWA v. ATODU & ORS
(2021)LCN/15890(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, December 10, 2021
CA/ABJ/603/2016
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Stephen Jonah Adah Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
ABOKI ZAHWA APPELANT(S)
And
1. SAMAD ATODU (SUING BY HIS LAWFUL ATTORNEY MR ADESINA ADENEKAN) 2. HON. MINISTER FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL TERRITORY ADMINISTRATION 4. FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)
RATIO
WHETHER OR NOT A PLAINTIFF MUST SUCCEED ON THE STRENGHT OF HIS CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND
The general principle of law, which has been settled by a plethora of decisions of the Supreme Court, is that, in an action for declaration of title to land, a claimant or plaintiff must succeed on the strength of his case and not on the deficiency, failing or weakness of the defendant’s case. See J. M. Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337, per Webber, C.J; where the West African Court of Appeal held thus:
“The onus lies on the plaintiff… to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff… in this case must rely on the strength of his case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help and the proper judgment is for the defendant.”
See also Atilade v. Atilade (1968) 1 All NLR 27; O. K. O. Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393; Alhaji Lasisi Salisu & Anor. v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1535) 242 and Mr. Moses Benjamin & 2 Ors. v. Mr. Adokiye Kalio & Anor. (2018) 15 NWLR (Pt. 1641) 38. PER ADUMEIN, J.C.A.
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
The other settled principle of land, in land cases, is that there are five recognized methods, modes or ways of proving ownership of land. Title to land may be proved by:
i. by traditional evidence.
ii. by production of documents of title.
iii. by acts of ownership, numerous and positive enough to warrant an inference that the claimant is the true owner.
iv. by acts of long possession and enjoyment of the land.
v. by proof of possession of adjacent or connected land.
See Idundun v. Okumagba (1976) 9-10 SC 224; Piaro v. Tenalo (1976) 12 SC 31; Omorogie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460 and Alhaji Lasisi Salisu & Anor. v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1536) 242.
It is not correct, as submitted by the learned counsel for the appellant, that production of title documents is the only recognized method of proving title to land in the Federal Capital. PER ADUMEIN, J.C.A.
WHETHER OR NOT A COURT CAN RAISE ISSUES SUO MOTU ON BEHALF OF PARTIES BEFORE IT
If the trial Court ever based its decision on any estoppel, which it suo motu raised and decided without hearing the parties, then the Court was wrong in law. The law is settled that a Court is confined to and bound by the issues raised by the parties. Thus, in the case of Madam Fumike Ojo-Osagie v. Sunday Adonri (1994) 6 NWLR (Pt. 349) 131 at 154-155, the Supreme Court, per Iguh, JSC; held, inter alia, as follows:
“It has to be stressed in this connection that on no account shall an appellate Court formulate or raise an issue suo motu, no matter how clear it may appear to be and proceed to resolve it and to decide the matter before it on that issue without hearing the parties on such issue so formulated. See Okafor v. Nnaife (1972) 3 ECSLR 261; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 581; Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) at 22; Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1 at 16; and Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 at 420. If it does so, it will be breach of a party’s right to fair hearing. See Sheldon v. Bromfield Justices (1964) 2 Q.B. 573 at 578; Rex v. Hendon Justices Ex Parte Gorchein (1973) 1 WLR 1502”.
See also Okonkwo Okonji (Alias Warder) v. George Njokanma (1999) 14 NWLR (Pt. 638) 250 at 266 and Yekini A. Abbas v. Olatunji Solomon (2001) 15 NWLR (Pt. 735) 144 at 170. PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The 1st respondent, as plaintiff in the lower Court, instituted an action by way of a writ of summons in the High Court of the Federal Capital Territory, Abuja identified as Suit No. FCT/HC/CV/1404/2014 wherein he sought the following relief:
“1) A DECLARATION that the plaintiff is the lawful allotee/owner of Plot 665, Guzape District A09, Abuja.
2) A DECLARATION that the purported allocation of Plot 665, Guzape District A09, Abuja to the 4th Defendant by the 1st-3rd Defendants is illegal, null and void.
3) AN ORDER directing the 1st–3rd Defendants to issue to the Plaintiff a Certificate of Occupancy in respect of Plot 665, Guzape District A09, Abuja, the Plaintiff having satisfied the statutory requirements for same.
4) AN ORDER directing the 1st–3rd Defendants to register the Irrevocable Power of Attorney given by the Plaintiff to his lawful Attorney, Mr. Adesina Adenekan forthwith, the relevant statutory fees having been duly paid.
5) PERPETUAL INJUNCTION restraining the Defendants, by themselves, their agents, servants, privies, assigns or any other person howsoever described from laying claim, trespassing or in any way ascribing ownership of Plot 665, Guzape District A09, Abuja to themselves.
6) Cost of this action as may be assessed by this Honourable Court”
The 2nd, and 3rd and 4th respondents and the appellant were the 1st, 2nd and 3rd defendants, respectively, in the said suit. The 2nd, 3rd and 4th respondents filed a joint statement of defence (pages 82 to 99 of the record of appeal) and the appellant, who was the 4th defendant, filed his separate statement of defence (pages 58 to 65 of the record). They all denied the 1st respondent’s claim.
Upon the conclusion of hearing and after the addresses of the learned counsel for the parties, the trial Court delivered a reserved judgment on the 22nd day of September, 2016 whereby the 1st respondent’s claims were granted as prayed. Being dissatisfied with the decision of the trial Court, the appellant filed a notice of appeal on 27/10/2016 (pages 269 to 279 of the record of appeal).
The appeal was heard on the said notice of appeal, the appellant’s brief filed on 15/11/2016, the 1st respondent’s brief filed on 30/11/2016 and the joint brief filed on 15/10/2016 by the 2nd, 3rd and 4th respondents but which brief was deemed as properly filed on 21/09/2021.
In the appellant’s brief, settled by F. R. Onoja, Esq; the following two issues were submitted for determination:
“1. Whether the learned trial Judge properly evaluated the evidence, applied the right legal principles and came to the right decision in granting title to plot 665 Gusape District to the 1st Respondent in the circumstances (distilled from ground 1, 2, 3, 4, 7 & 8) of the Notice of Appeal).
2. Whether the learned trial Judge was not in error when his Lordship suo motu raised and relied upon the principle of estoppel by conduct in favour of the 1st Respondent in the circumstances of the instant case. (Distilled from ground 5 & 6 of the Notice of Appeal)”.
The 1st respondent’s brief was settled by Oluwole Aladedoye, Esq. and in it, two issues were identified as follows:
“1) Whether the learned trial Judge was not right in granting the reliefs sought by the 1st respondent having regard to the pleadings and evidence before him. (Grounds 1, 2, 3, 4, 7 & 8)
2) Whether the learned trial Judge was not right in invoking the principle of estoppel by conduct having regard to the pleadings and evidence before him. (Grounds 5 & 6)”.
Olalekan I. Oladapo, Esq. prepared and settled the 2nd, 3rd and 4th respondents’ brief, in which he adopted the issues raised by the appellant and concluded that “on the strength of the 2nd, 3rd and 4th respondents maintaining the stance they took at the Court below they hereby concede to this appeal”.
By way of a preamble to the resolution of the issues raised by the contending parties, it is now settled that the traditional duty or role of a respondent, who has not cross-appealed against a decision of a lower Court, is to defend the judgment of the lower Court or to remain silent about it. See S. N. Ibe v. Peter Onuorah (1999) 14 NWLR (Pt. 638) 340; New Nigerian Bank Plc v. Gabriel Egun (2001) 7 NWLR (Pt. 711) 1; John C. Anyaduba & Anor. v. Nigerian Renowned Trading Co. Ltd. (1990) 1 NWLR (Pt. 127) 397 at 407 and Hajia Yunusa Bakari v. Deaconess (Mrs.) Felicia Ogundipe & Ors. (2021) 5 NWLR (Pt. 1768) 1 at 34-35, where the Supreme Court held as follows:
“When this appeal was heard on 16th December, 2019 learned counsel for the 2nd and 3rd respondents, D. Ameh informed the Court that his brief was irregular. He did not say how his brief was irregular. Rather than defend the judgment of the Court of Appeal, the 2nd and 3rd respondents filed a joint brief attacking the judgment.
In their conclusion, they pray this Court to set aside the judgment of the Court of Appeal and in its place restore the judgment of the trial Court dismissing the claims of the 1st respondent.
Their role is fundamentally wrong. Their prayer ought to be for this Court to dismiss the appeal. Since the 2nd and 3rd respondents abandoned their role as respondents’ their joint brief would not be considered. It is hereby struck out.”
The arguments and prayer of the 2nd, 3rd and 4th respondents in their purported joint brief are completely anachronic or incongruous with those of a respondent and they are hereby discountenanced.
To determine the appeal, I adopt the issues formulated by the learned counsel for the appellant. The two issues will be taken together as follows:
1. Whether or not the trial Court properly evaluated the evidence and applied the right legal principles in arriving at its decision to grant title to the disputed land in favour of the 1st respondent.
2. Whether or not the trial Court erred in raising suo motu and relying on the principle of estoppel by conduct in favour of the 1st respondent.
Learned counsel for the appellant referred to Section 297(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 18 of the Federal Capital Territory Act and the cases ofOna v. Atenda (2000) 5 NWLR (Pt. 656) 244 and Madu v. Madu (2008) 6 NWLR (Pt. 1083) 296 and submitted that:
“The law is now settled that there is only one recognized method of establishing title to land within the Federal Capital Territory. That single method is by production of title documents”
The learned counsel contended that if the trial Court had properly evaluated exhibit “G” tendered by the 1st respondent and exhibit “DA” tendered by the appellant, the Court would have found that exhibit “DA” “is the first in time”. Counsel argued that the latin maxim “Qui prior est empore portior est jure”, therefore, “applies with full force to the question of who is entitled to the ownership of the disputed plot”.
Counsel cited the cases of Omiyale v. Macaulay (2009) 3-4 SC 1 and Adole v. Gwar (2008) 3-4 SC 78 and submitted that where parties are claiming title to land from a common grantor, the first in time prevails.
In urging the Court to resolve Issue 1 in favour of the appellant, learned counsel submitted, inter alia, as follows:
“We submitted therefore that when Exhibit G is compared with Exhibit DA it would not have been possible for the 1st Respondent who claims title to plot 665 to have succeeded at the lower Court. Exhibit G referred to a different land and no credible evidence was lead to show that plot 288 later became plot 665. No credible evidence was also lead by the 1st Respondent to establish the forgery pleaded in the statement of claim which was given as the reason for the emergence of Exhibit DA.
The lower Court did not even deem it necessary to make any pronouncement on the unproved allegation that the Appellant obtained Exhibit DA by forgery or abuse of office.
The lower Court was thus left with no choice but to consider Exhibit DA as being the first in time and the only document conveying a grant of 665 to no other person than the Appellant. His Lordship woefully failed to do so and thereby occasioned a miscarriage of justice”.
“What is more Exhibit G relied upon by the plaintiff as the principal document which establishes its root of title to the disputed property does not have the effect claimed by the holder of the document for the reason that it refers to a different Plot No. 288”.
On the second issue, learned counsel argued that the trial Court used the principle of estoppel to uphold the 1st respondent’s claim when “it has always been the law that estoppel does not and cannot be used as a sword in litigation. It is certainly not available to a plaintiff in a litigation process”. In support of this submission, learned counsel relied on the cases of Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 and Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1.
After referring to the cases of Eholor v. Osayande (1992) 7 NWLR (Pt. 249) 524; Ndiwe v. Okocha (1992) 2 NWLR (Pt. 252) 129; Kuti v. Balogun (1978) 1 SC 53 and Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252, learned counsel contended that:
“Even more worrisome to the Appellant is the fact that the learned trial Judge raised the issue of Estoppel suo motu in the considered judgment without affording the parties an opportunity to address the Court on whether estoppel can apply and in what manner.
It is important to note that the 1st respondent did not plead or raise the issue of estoppel by the statement of claim or in the reply. The Appellant and the 2nd to the 4th Respondent did not also raise the issue of estoppel by conduct. It therefore came as a surprise when the learned trial Judge raised the issue and dwelt extensively on it in the considered judgment.
Although a Court of law may raise issues suo motu, the law is settled that once a Court raises an issue suo motu it must give the parties an opportunity to address the Court on such issues before a determination is made one way or the other”.
On the other hand, learned counsel for the 1st respondent submitted that a party who desires to succeed in an action for declaration of title to land must situate his case among one of the five ways of proving title. To buttress this submission, learned counsel relied on the case of Aiyeola v. Pedro (2014) 13 NWLR (Pt. 1424) 409 at 446.
Counsel contended that it is incorrect, as argued by the appellant, that there is only one recognized method of establishing title to land within the Federal Capital Territory, that is by production of title documents. In support, learned counsel for the 1st respondent referred the Court to the cases of Madu v. Madu (supra) at 319 and Ona v. Atenda (supra) at 262.
The learned counsel argued that “the 1st respondent successfully proved his act of long possession and enjoyment of the land in dispute” as found by the trial Court on page 253 of the record of appeal and which finding was not appealed against by the appellant.
Learned counsel referred to the 1st respondent’s pleadings and evidence – both oral and document and argued that “the 1st respondent emphatically stated under cross-examination that Plot 665 is the new number for Plot 288”. Counsel contended further, inter alia, that:
“… the EXHIBITS tendered in this case show clearly that the Plot 665 in dispute with size number 1606.17m2 is one and the same as the hitherto Plot 288 in Guzape District, Abuja. EXHIBIT G is an “OFFER OF TERMS OF GRANT/CONVEYANCE OF APPROVAL” dated 27/11/2002 (See page 16 of the record of appeal). This EXHIBIT G has File number MFCT/LA/KG.2096, and conveyed the Honourable Minister’s approval of a Grant of Right of Occupancy in respect of a plot of about 1600m2 (Plot No. LD288) within Guzape District to the 1st Respondent”.
On the appellant’s exhibit “DA”, learned counsel for the 1st respondent stated that:
“… when this document was tendered as EXHIBIT DA in evidence by the 2nd to 4th Respondents, it shows that the size of the plot to which it relates is 2,800m2 and that the File numbers are materially different. EXHIBIT DA is on page 91 of the record of appeal”.
In urging the Court to resolve the first issue against the appellant, learned counsel for the 1st respondent submitted as follows:
“The principle of law encapsulated in the latin maxim “QUI PRIOR EST TEMPORE POTIOR EST JURE” does not apply in this case as the Appellant has been shown not to have any valid title to the land in dispute. All the legal authorities relied upon by the Appellant are therefore irrelevant and inapplicable to the peculiar facts of this case”.
Learned counsel referred to paragraph 8 of the 2nd, 3rd and 4th respondents’ statement of defence and contended, inter alia, as follows:
“Contrary to the submission of learned Counsel to the Appellant that the lower Court raised this issue suo motu, we submit that facts warranting the invocation of estoppel by conduct or estoppel in pais were specifically pleaded by the 2nd to 4th Respondents. Evidence thereon was adduced by DW1 in his Statement on oath and addresses canvassed thereon”.
The general principle of law, which has been settled by a plethora of decisions of the Supreme Court, is that, in an action for declaration of title to land, a claimant or plaintiff must succeed on the strength of his case and not on the deficiency, failing or weakness of the defendant’s case. See J. M. Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337, per Webber, C.J; where the West African Court of Appeal held thus:
“The onus lies on the plaintiff… to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff… in this case must rely on the strength of his case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help and the proper judgment is for the defendant.”
See also Atilade v. Atilade (1968) 1 All NLR 27; O. K. O. Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393; Alhaji Lasisi Salisu & Anor. v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1535) 242 and Mr. Moses Benjamin & 2 Ors. v. Mr. Adokiye Kalio & Anor. (2018) 15 NWLR (Pt. 1641) 38.
The other settled principle of land, in land cases, is that there are five recognized methods, modes or ways of proving ownership of land. Title to land may be proved by:
i. by traditional evidence.
ii. by production of documents of title.
iii. by acts of ownership, numerous and positive enough to warrant an inference that the claimant is the true owner.
iv. by acts of long possession and enjoyment of the land.
v. by proof of possession of adjacent or connected land.
See Idundun v. Okumagba (1976) 9-10 SC 224; Piaro v. Tenalo (1976) 12 SC 31; Omorogie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460 and Alhaji Lasisi Salisu & Anor. v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1536) 242.
It is not correct, as submitted by the learned counsel for the appellant, that production of title documents is the only recognized method of proving title to land in the Federal Capital Territory Abuja. In the case of Grace Madu v. Dr. Betram Madu (2008) 6 NWLR (Pt. 1083) 296, heavily relied upon by the appellant’s counsel, the Supreme Court held at page 319 of the Law Report as follows:
“The two crucial issues that arise for determination in this appeal are (1) as between the appellant and the respondent who has a better title to the land and (2) whether “Resulting Trust” operates in favour of the defendant/respondent. As rightly submitted by the appellant in her brief of argument, it has now become firmly established that there are five ways of establishing title to land and they are:
(1) by traditional evidence
(2) by document of title
(3) by various acts of ownership and possession numerous and positive to warrant inference of ownership
(4) by acts of long possession and enjoyment of the land; and
(5) by proof of possession of adjacent land to the land in dispute in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute”.
Perhaps, I need to emphasise that the dispute in Madu v. Madu (supra) related to title in the Federal Capital Territory, Abuja. It should be also noted that in Joseph Ona & Anor. v. Alhaji Diga Romani Atenda (2002) 5 NWLR (Pt. 656) 244, also heavily relied on by the appellant and which is a decision of this Court, there is no pronouncement that the production of documents of title is the only recognized means or way of establishing a claimant’s title to land in the Federal Capital Territory, Abuja.
In this case, the 1st respondent pleaded in paragraphs 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18-26 of his statement of claim as follows:
“2) That the plaintiff is the lawful Allottee of a parcel of land known and described as Plot No. 665 at Guzape District, A09, Abuja.
7) That the 4th defendant was a Director with the 3rd Defendant, before being appointed as Permanent Secretary with the Federal Government, in whose name the Plaintiff discovered a Statutory Right of Occupancy Bill was issued by the 2nd Defendant in 2012 in respect of the land described above.
8) That sometime in 2002, the 1st defendant granted approval of a grant of right of occupancy over Plot No. LD 288 (now known as 665) at Guzape District, A09, Abuja. The Offer of Terms of Grant/Conveyance of Approval dated 27th November, 2002 shall be relied upon at the trial.
9) That during the re-certification exercise of land within the Federal Capital Territory, the Plaintiff duly submitted his title documents for re-certification. The Re-Certification and Re-Issuance of C of O Acknowledgment dated 04/14/05 given to the Plaintiff by the Ministry of Federal Capital Territory shall be tendered at the trial.
10) That the plaintiff had paid his ground rent from 2003 to 2009 as evidenced by the Demand for Ground Rent dated 24/06/2009 and the receipt issued to him by the 2nd Defendant dated 30/06/2009. The Demand Notice, Bank Draft and receipts shall be relied upon at the trial of this suit.
11) That on the 16th of August, 2007, a Site Plan showing the size of the Plaintiff’s land at Guzape was printed and given to him by the 1st-3rd Defendants. This Site Plan will be tendered at the trial.
12) That the Plaintiff duly paid to the 1st-3rd Defendants the sum of One Hundred and Three Thousand Naira (N103,000.00) representing charges for the registration of the Power of Attorney pleaded above. The Bank Draft and Receipt issued by the 1st-3rd Defendants shall be tendered during trial of this case.
13) That by a document titled “STATUTORY RIGHT OF OCCUPANCY BILL” dated 24/06/2009, the Plaintiff was notified by the 1st-3rd Defendants to pay the sum of Three Million, Two Hundred and Twenty Seven Thousand, Eight Hundred and Sixty Seven Naira, Ninety Seven Kobo (N3,227,867.97) to enable them issue the Certificate of Occupancy in respect of this land to the Plaintiff.
14) That on the 25th of June, 2009, the Plaintiff duly paid the total sum demanded by the 1st-3rd Defendants by way of Bank Draft and he was issued a receipt on the 30th of June, 2009. The Statutory Right of Occupancy Bill, Bank Draft and Receipt shall be relied upon at the trial.
15) That the Plaintiff took possession of this land, sand-filled same and erected a small fence to prevent encroachment pending the grant of approval of development on this land.
16) That at the time the above payments were made by the Plaintiff, Guzape District had not been provided with Infrastructural facilities.
17) That the Plaintiff continued to pay his ground rent as and when due in respect of Plot No. 665, Guzape District, which ground rents were backed up by receipts of payment issued by the 1st-3rd Defendants. The Bank Drafts as well as receipt shall be relied upon at the trial.
18) That at all times relevant to this land transaction, the Plaintiff had been pursuing the issuance of a Certificate of Occupancy by the 1st-3rd Defendants. A letter of authority dated 03-11-2008 submitted to the 1st-3rd Defendants shall be tendered at the trial.
19) That sometime in 2011 during the plaintiff’s routine follow-up on the land file, he was informed that the file had been sent to the office of the 1st Defendant for regularization.
20) That the plaintiff engaged the services of a Legal Practitioner to help him carry out a search at the Abuja Geographic Information Systems (AGIS) in respect of this land, which search report showed that the land belongs to the Plaintiff and was free from encumbrances as at 26th of July, 2011. The Acknowledgment slip, receipt, Residential Legal Search Application and Legal Search Report shall be relied upon at the trial.
21) That the plaintiff kept on with his follow-up on this Land file until he was informed sometime in 2012 that his file was missing.
22) That the Plaintiff wrote a letter to the 1st Defendant about this development and re- submitted his application for regularization of this land. The letter dated 23rd April, 2012 shall be tendered during trial.
23) That to the Plaintiff’s greatest dismay, the 1st-3rd Defendants notified him that his request for regularization of title over this land has been refused and that his plot has been committed to an allottee whose interests, rights and privileges still subsist. The letter dated 5th of October, 2012 shall be relied upon at the trial.
24) That the above pleaded letter necessitated his demand for the identity of this purported allottee, whose identity was revealed by documents titled Statutory Right of Occupancy Bill and Demand for Ground Rent dated 06/03/2012. These documents shall be tendered at the trial of this suit.
25) That the 4th Defendant whose name appear as the purported allottee of this plot was a Director with the 3rd Defendant, who later became a Permanent Secretary with the Federal Government, after the Plaintiff had been allotted this plot of land.
26) That the Plaintiff shall contend that any purported allocation of this piece of land i.e. Plot 665, Guzape District to the 4th Defendant is an abuse of office and fraudulent.
PARTICULARS OF ABUSE OF OFFICE AND FRAUD
i) The plaintiff is the bonafide allottee of Plot 665, Guzape District, Abuja
ii) The date contained in the letter dated 06/03/2012 purporting to have issued a right of occupancy to the 4th Defendant i.e. 17/05/2001 was deliberately and fraudulently inscribed to precede the approval granted the plaintiff in respect of Plot 665, Guzape District, Abuja.
iii) The Plaintiff’s search revealed that as at 26th of July, 2011, the Plaintiff was the only allottee of this land and that there was no encumbrance of any sort on Plot 665, Guzape District, Abuja.
iv) This search report was issued by the Deeds Registrar and Company Secretary/Legal Adviser of the 1st-3rd Defendants.
v) The 4th Defendant used his influence as a former Director with the 3rd Defendant and later Permanent Secretary with the Federal Government to alter the records of the 1st-3rd Defendants in printing the letter dated 06/03/2012 reflecting his name as the purported allottee”.
On the other hand, the appellant pleaded in paragraphs 1 to 5 of his statement of defence as follows:
“1. The 4th defendant denies paragraphs 1, 2, 7, 14, 15, 16, 17, 18, 19, 20, 25, 26, 27, 28, 29, 30 and 31 of the statement of claim and put the plaintiff to the strictest proof thereof.
2. The 4th defendant is not in a position to admit or deny paragraphs 8, 9, 10, 11, 12, 13, 21 of the statement of claim and put the plaintiff to the strictest proof thereof.
3. The 4th defendant admits paragraphs 3, 4, 5 and 23 of the statement of claim.
4. The 4th defendant avers that paragraphs 25, 27, 28, 29 of the plaintiff of the plaintiff’s statement of claim are scandalous, abusive and provocative to the 4th defendant.
5. In so far as paragraphs 1, 2, 7, 14, 15, 16, 17, 18, 19, 20, 25, 26, 27, 28, 29, 30 and 31 are gross distortions of fact the defendant aver that the true facts of the case is as follows:
(a) The 4th defendant applied for a piece of land at Guzape District FCT Abuja and was issued with plot no 655 Guzape District Abuja on cadastral zone A09 dated 11/5/2011 on file no 11266. This document is pleaded also is the site plan showing plot Guzape A09 of Plot 665 and shall be relied upon.
(b) On the 25th January, 2011 and 12th May, 2011, the defendant applied to the Director land administration for certified true copies or his land documents for plots file Nos. F.C.T 769 and CD 665 Guzape District Abuja.
(c) That on the 5th day of July, 2011 the Director (Lands) Department of Land Administration in the office of the Federal Capital Territory Administration wrote to the 4th defendant in a letter reference No. F.C.T 769 titled Re: Application for
(d) That with special reference to paragraphs 25, 27, 28 and 29 of the statement of claim I aver that the averments of the plaintiff are just provocative utterances and deliberate falsehood without any legal proof but mere speculations and abusive.
(e) That I further aver that at the hearing of this suit the Court shall be urged to refer the title documents of the plaintiff especially the recertification and reissuance of C of O acknowledgment to Mr. Samad Atodo bearing file No. G2096 No. 04/14/05 and offer in terms of Grant/Conveyance of Approval 27/11/002 ref No. MFCT/LA/KG/2096 to the appropriate authorities for investigation as the case of the plaintiff is rested on fraud.
(f) That the plaintiff by his averments in paragraph 25, 27, 28 and 29 of his statement of claim intended the whole worked to believe that the plaintiff is a man who abused his office and a fraudster which is completely untrue but rather it is the plaintiff who is peddling around with forged papers to mislead the Court.
(g) That I obtained my title deeds to the plot 665 Guzape Abuja by due process and had since validated it by the recertification. I shall rely on the document issued by the Federal Capital Territory Administration, Development of Land Administration titled “Recertification and Reissuance of C of O Acknowledgment” file No. FCT11266 issued to me.
(h) That I further aver that at the hearing of this suit the Court shall be urged to refer the title documents of the plaintiff especially the recertification and reissuance of C of O acknowledgment issued to Mr. Samad Atodo bearing file No. G2096 No. 04/14/05 and offer in terms of Grant/Conveyance of Approval 27/11/002 ref No. MFCT/LA/KG 2096 to the appropriate authorities for investigations as the case of the plaintiff is a complete fraud. That the suit of the plaintiff is mere speculation.
PARTICULARS OF FRAUD
i. The recertification and reissuance of C of O acknowledgment exhibited by the plaintiff with the offer of terms of Grant/Conveyance of Approval of 27/11/002 gives the plot No. as LD 288 Guzape District Abuja and not CD 665.
ii. That the ministry of the Federal Capital Territory Re-certification and Re-issuance of C of O acknowledgment file No. KG 2096 No. 04/14/05 in favour of Samad Atodu exhibited by the plaintiff showed an improbable signature purported to have been signed by Magaji Galadima the administrator which the defendant alleged is forged”.
In their joint statement of defence, the 2nd, 3rd and 4th respondents, who were the 1st, 2nd and 3rd defendants respectively, in the trial Court, pleaded in paragraphs 1-13 as follows:
“1. The 1st—3rd defendants deny paragraph 1 and 2 of the Statement of Claim and further states that the Plaintiff was never at any time allocated Plot 665 at Guzape District, Abuja. The Plaintiff is put to the strictest proof thereof.
2. The 1st-3rd Defendants admit paragraphs 3 of the Statement of Claim.
3. The 1st-3rd Defendants admit paragraph 4 of the Statement of Claim only to the extent that Abuja Geographic Information System (AGIS) has a data base of all land within the Federal Capital Territory but deny that it issued receipts to the Plaintiff. The Plaintiff is put to the strictest proof thereof.
4. The 1st-3rd Defendants admit paragraph 5 of the Statement of Claim.
5. The 1st-3rd Defendants admit paragraphs 6 of the Statement of Claim only to the extent that the 4th Defendants is the rightful allotee of Plot 665 Guzape District, Abuja but is not in a position to admit or deny whether the 4th Defendant was a Director with the 3rd Defendant, the Plaintiff is put to the strictest proof thereof.
6. The 1st-3rd Defendants deny paragraph 7 of the Statement of Claim and further states that the 1st Defendant never granted approval of right of occupancy over Plot 665 Guzape District, Abuja to the Plaintiff. The Plaintiff is put to the strictest proof thereof.
7. The 1st-3rd Defendants deny paragraph 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20, 21, 22, 23, 24, 25(i)- (iv), 26, 27, 28, 29, 30, 31(1)-(6) of the Statement of Claim and put the Plaintiff to the strictest proof thereof.
8. The 1st-3rd Defendant states further that, plot 665, Guzape District, Abuja does not belong to the plaintiff as the valid and subsisting title holder to the plot which is the subject matter of this suit is the 4th Defendant and to other person.
9. The 1st-3rd Defendants states that by an offer of terms of grant/conveyance of approval dated 17/05/01 the 4th Defendant was offered Plot 665, Guzape District, Abuja and this allocation is covered by a Ministerial Approval dated 17/05/01. The said Offer and Ministerial list are pleaded.
10. The 1st-3rd Defendants states that after the recertification exercise of all land titles in the Federal Capital Territory, Abuja in 2005 it was discovered that many of the title documents submitted by allotees were falsified or forged and so therefore a committee was set up in 2010 to investigate such cases of forgery/falsified title documents.
11. The 1st-3rd Defendants state that the title documents of the Plaintiff submitted by the Plaintiff for recertification fell among such land titles which were forged/falsified.
12. The 1st-3rd Defendants would contend at the hearing of this suit that the purported title documents which the Plaintiff pleaded are forged/fraudulent/falsified and never originated from the 1st–3rd Defendants.
PARTICULARS OF FRAUD
(a) The old file number No. KG 2096 which the Plaintiff claims belongs to him is owned by Rose Adi Musa and not Samad Atodu (The plaintiff). The original sheet bearing the name of Rose Adi Musa is pleaded.
(b) The purported ministerial approval sheet which the plaintiff claimed is the approval sheet for his allocation is not among the original ministerial approval sheets in the safe keeping of the Department of Land Administration. The falsified approval sheet is pleaded.
(c) The falsified ministerial approval sheet dated 27/11/02 was concocted using names/allocation particulars of 4 (four) genuine allotees from a genuine ministerial sheet dated 12/08/02 reproduced on it to create a form of genuineness to the falsified ministerial list. The names are Jacob Aondve A. with file No. BN2548, Umar Kolo with file No. KG 2372, Jime Emmanuel with file No. BN 2268 and Gabriel Obioma with file No. IM 2608. All these allocations both on the same piece of land. The falsified approval sheet and the genuine approval sheet are pleaded.
(d) The particulars of the Plaintiff which includes his signature and passport photograph in his purported land application from which the 1st-3rd Defendants discovered is different from the particulars, signature and passport photograph on the application form which the Plaintiff submitted during recertification. The said application forms are pleaded.
13. The 1st-3rd Defendants states that assuming but not conceding that the Plaintiff had a genuine title, the title of the 4th Defendant precedes that of the Plaintiff and so at the date the Plaintiff claimed that he got his allocation to the land there was nothing to give him as the 4th Defendant was already in occupation of the land”.
In the 1st respondent’s written address, a sole issue for determination by the trial Court was formulated as follows:
“Whether the Plaintiff is not entitled to all his reliefs having regard to the totality of evidence led in this case”.
The above issue was adopted by the appellant’s learned counsel in the Court below. However, the learned counsel for the 2nd, 3rd and 4th respondents (then 1st, 2nd and 3rd defendants, respectively) distilled three issues thus:
“ISSUE ONE
Whether in view of the fact that plaintiff’s allocation was subsequent to the 4th Defendant’s allocation, the Plaintiff has any valid allocation.
ISSUE TWO
Whether the Plaintiff has led credible and compelling evidence to be entitled to any of the reliefs sought.
ISSUE THREE
Whether Ancillary reliefs can survive the demise of the Principal relief”.
Learned counsel for the appellant contended that, on page 257 of the record of appeal, the trial Court suo motu raised and relied on the principle of estoppel by conduct in favour of the 1st respondent. For easy understanding of my judgment, the portion of the decision of the lower Court complained of, on page 257 of the record of appeal, is as follows:
“Thus, where one party is by his words or conduct, made to the other party a promise or assurance which was intended to have legal relations between them and to be acted on accordingly, then once the party has taken him at his words and acted on it, the one who gave the promise or assurance having been made by him, that he must accept their legal relations as modified by himself even though it is not supported in point of law by any consideration but only by his words.
It is my firm opinion which is supported by the afore position of law that Defendants having accepted the various payments and infact given plaintiff vide their search report duly certified, a clean bill of health, cannot be heard to distance themselves from the fact that the land in question belongs to the 4th Defendant. What more, above position is fortified by the fact that Defendants tendered conflicting documents.”
The above statement of the trial Court is nothing more than an obiter dictum it is not the ratio decidendi of the judgment appealed against. From the pleadings of the parties, substantially reproduced in this judgment, no estoppel was pleaded and the trial Court, rightly did not decide the case on estoppel.
The portion of the judgment of the trial Court, heavily attacked by the appellant is merely to the effect the 1st respondent made various payments to the 2nd, 3rd and 4th respondents, which payments were duly accepted and it was wrong for the 2nd, 3rd and 4th respondents to deny these payments by their conflicting evidence.
If the trial Court ever based its decision on any estoppel, which it suo motu raised and decided without hearing the parties, then the Court was wrong in law. The law is settled that a Court is confined to and bound by the issues raised by the parties. Thus, in the case of Madam Fumike Ojo-Osagie v. Sunday Adonri (1994) 6 NWLR (Pt. 349) 131 at 154-155, the Supreme Court, per Iguh, JSC; held, inter alia, as follows:
“It has to be stressed in this connection that on no account shall an appellate Court formulate or raise an issue suo motu, no matter how clear it may appear to be and proceed to resolve it and to decide the matter before it on that issue without hearing the parties on such issue so formulated. See Okafor v. Nnaife (1972) 3 ECSLR 261; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 581; Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) at 22; Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1 at 16; and Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 at 420. If it does so, it will be breach of a party’s right to fair hearing. See Sheldon v. Bromfield Justices (1964) 2 Q.B. 573 at 578; Rex v. Hendon Justices Ex Parte Gorchein (1973) 1 WLR 1502”.
See also Okonkwo Okonji (Alias Warder) v. George Njokanma (1999) 14 NWLR (Pt. 638) 250 at 266 and Yekini A. Abbas v. Olatunji Solomon (2001) 15 NWLR (Pt. 735) 144 at 170.
In this case, the trial Court merely drew inferences from the oral and documentary evidence before it, which is permissible in law, and such reasoning and conclusions are not regarded as raising and deciding issues suo motu. See Brig. Gen. O. B. Olorunkunle (Rtd.) v. Alhaji Abayomi Shakirudeen Adigun (2012) 6 NWLR (Pt. 1297) 407 and Chief S. O. Adedayo v. Peoples Democratic Party (2013) 17 NWLR (Pt. 1382) 1.
The trial Court did not grant the 1st respondent’s claim on the basis of estoppel by conduct or any other species of estoppel. The lower Court entered judgment in favour of the 1st respondent because, according to the Court, he (the 1st respondent) proved his case on the balance of probabilities as required by law. For example, after reviewing the evidence of the parties and addresses of their respective learned counsel, the trial Court held, on pages 257 to 258 of the record of appeal, as follows:
“Exhibit “DA” (offer of terms of Grant/Conveyance of Approval dated 17th May, 2001 authored by Mallam M. S. U Kalgo, Director of Land Administration and Resettlement on behalf of the Hon. Minister, and Exhibit “DB” Recommended Application for Approval dated 10th May, 2001. These documents have the size of the Plot as 2,800m2.
It is instructive to note at this juncture that whereas Exhibits “DA” and “DB” have the size of the Plot as 2800m2, the Statutory Right of Occupancy Bill and Demand for ground rent issued by the 1st-3rd Defendant in favour of the 4th Defendant in respect of the same land in 2012 (Exhibit “D”) have the size of the Plot as 1606.17m2″
Earlier in its judgment, the trial Court found and held that the 1st respondent established his “nexus with the subject matter” by exhibits “K” and “J” which are letter of authority and bank draft and receipt from Abuja Geographic Information System (AGIS), respectively; that the 1st respondent took possession of the land by sand filling same and erecting a small fence thereon to prevent encroachment, that exhibits “A”, “D” and “E” – Legal Search Report dated 26/07/2011; Statutory right of occupancy bill dated 24/06/2009 and statutory right of occupancy bill and demand for ground rent issued to the appellant; and Demand for ground rent issued to the 1st respondent dated 24/06/2009; respectively, were issued by the 2nd, 3rd and 4th respondents.
After examining the evidence before it, the trial Court held and found, amongst other things, as follows:
“Exhibit “G” is a document titled offer of terms of grant/conveyance of Approval dated 27th November, 2002 authored and signed by Mallam M.S.U Kalgo, Director of Land Administration and Resettlement on behalf of the Hon. Minister of FCT in respect of a plot of about 1600m2 (Plot No. LD288) within Guzape District to the Plaintiff.
It is also in evidence that the Defendants informed the plaintiff that his file was missing, a search conducted by the plaintiff at AGIS revealed that this land in dispute belongs to the plaintiff and that there was no encumbrance thereon. This Legal Search Report is dated 26th July, 2011 and duly signed by the Deeds Registrar and the Company Secretary/ Legal Adviser of the 1st-3rd Defendants, it was admitted as Exhibit “A”.
After the issuance of Exhibit “A”, the 1st-3rd Defendants issued two documents on the same day i.e. 6th March, 2012 titled Statutory Right of occupancy Bill and Demand for ground rent requesting for payment of outstanding ground rent from 2002 to 2013 from the 4th Defendant (Exhibit “D”).
It is in evidence that 1st-3rd Defendants in their evidence ascribe ownership of the plot in dispute to the 4th Defendant.
The question that follows naturally is that who issued Exhibit “A” to the Plaintiff?
Why did the 1st-3rd Defendants issue the said Exhibits “A”, “D” and “E” to the Plaintiff, when they knew or had cause to know that the land in dispute belongs to the 4th Defendant?”
The above findings and observations of the honourable learned trial judge – Hon. Justice Y. Halilu, having regard to the totality of both documentary and oral evidence before the Court, cannot be faulted but be applauded.
By his documentary evidence and oral evidence in Court, the 1st respondent strategically proved that he is entitled to the land in dispute by various documents of title, whether equitable or legal, and by acts of possession.
The conduct of the 2nd, 3rd and 4th respondents to clandestinely wrestle title from the 1st respondent and transfer same illegally to the appellant, who was a former Director in the Federal Capital Development Authority and a Permanent Secretary of the Federal Republic of Nigeria, should leave a very sour taste in the mouth of every right thinking member of the public. Such an obvious blazen illegality is roundly condemnable and should not be encouraged. The 2nd, 3rd and 4th respondents, as public officers, should discharge their public duties honestly, efficiently, humbly and without discrimination against or favour for any citizen of the Federal Republic of Nigeria.
In conclusion, the live issue in this appeal, namely: whether or not the trial Court rightly granted title to Plot 665, Guzape District, Federal Capital Territory, Abuja in favour of the 1st respondent, is resolved in favour of the 1st respondent and against the appellant.
The appeal is devoid of any merit and it is hereby dismissed.
The judgment of the trial Court, per Hon. Justice Y. Halilu, delivered on the 22nd day of September, 2016 in Suit No. CV/1404/2014 is hereby affirmed.
The sum of N300,000.00 (Three Hundred Thousand Naira only) is hereby awarded as costs in favour of the 1st respondent and against the appellant.
STEPHEN JONAH ADAH, J.C.A.: I read the draft of the judgment just delivered in Court by my learned brother MOORE A. A. ADUMEIN, JCA.
I concur with the reasoning and the conclusion arrived thereat I do hold that the appeal lacks merit and I do dismiss the appeal. I abide by the consequential Orders inclusive of the Order as to costs as made therein.
BATURE ISAH GAFAI, J.C.A.: I have before now, read the draft judgment just delivered by my learned brother Adumein, JCA. I agree with the reasonings expressed by his lordship and the decision he arrived at on the appeal. His lordship has painstakingly and succinctly attended to all the aspects of this appeal and has efficiently resolved all the Issues submitted for determination; to such a degree that any addition by me will only result in repetition. It is a pity that the Appellant who occupied high position of trust as a Director in the 4th Respondent and later as a permanent secretary in the public service should abuse that trust by the facts leading to this appeal.
Be that as it may, I too find this appeal devoid of any merit and it is dismissed by me too. I abide by the Orders on cost.
Appearances:
F. R. Onoja, Esq., with him, T. A. Akpor, Esq. For Appellant(s)
Oluwole Aladedoye, Esq., with him, M. D. Ojo, Esq. – for 1st Respondent
Olalekan I. Oladapo, Esq., with him, Martha Isa, Esq. – for 2nd, 3rd and 4th Respondents For Respondent(s)