SWATE & ANOR v. AKAAHS & ORS (2022)

SWATE & ANOR v. AKAAHS & ORS

(2022)LCN/16423(CA)

In The Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, May 25, 2022

CA/ABJ/CV/250/2021

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

1. NAGANDE SWATE 2. ROMBEC PROPERTIES NIG. LTD APPELANT(S)

And

1. HONOURABLE JUSTICE KUMAI BAYANG AKAAHS 2. THE HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY, ABUJA 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY, ABUJA. RESPONDENT(S)

RATIO

WHETHER OR NOT A TRESPASSER IN POSSESSION CAN MAINTAIN AN ACTION IN TRESPASS AGAINST ALL THE WORLD

The Supreme Court has held that even a trespasser in possession can successfully maintain an action in trespass against all the world except the true owner – See the case of BELLO SALAMI & ANOR V. ALHAJI ADETORO LAWAL (2008) 14 NWLR (PT.1108) P. 546.
The 3rd Defendant did not file a statement of defence while the 4th and 5th Defendants abandoned theirs. There is no defence to the Claimant’s claim of trespass which he has successfully established. The 3rd, 4th and 5th Defendants have not established that they are the rightful owners of the Subject Matter so as to justify their acts of trespass. They have failed to discharge the onus of proof which shifted to them in the circumstances. Thus, therefore by the undisputed evidence before me, I hold the view that the Claimant has successfully established trespass on the preponderance of evidence and I so hold. The claimant is therefore entitled to the second, relief i.e. relief (b) of the Amended Statement of Claim and it is accordingly granted as prayed.” PER GAFAI, J.C.A.

THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

In an action for declaration of title to land, it is settled law that the burden of proof is on the Claimant to prove by credible evidence one or more of the five methods of proof of title to land by which he became owner of the land, namely: a. Evidence of traditional history of title; b. Production of genuine and valid documents of title; c. Numerous acts of ownership; d. Acts of possession over a long period of time, or, e. Acts of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute.

BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of the Federal Capital Territory Abuja in Suit No: FCT/HC/CV/2241/2019 delivered on the 16th of December, 2020 in which the Appellants’ counter-claims were dismissed.

Aggrieved by the judgment of the lower Court, the Appellants have approached this Court vide their Notice of Appeal filed on the 22nd of December, 2020 complaining against the judgment on three Grounds thus:
“GROUND ONE
The lower Court erred in law when it granted title of the land to the Claimant when there wasn’t any valid title presented by the Claimant in the case.
GROUND TWO
The lower Court erred in law when it used Exhibit 10 to grant title to title to the claimant when it was made during the pendency of the case.
GROUND THREE
The lower Court erred in law when it awarded trespass to the Claimant did not prove possession in the case.”

The respective particulars enumerated under these Grounds are noted. See pages 864 to 866 of the Record of Appeal.

The Record of Appeal was transmitted to this Court on the 18th of March 2021. The Appellants caused their Brief of Argument filed on the 22nd of June 2021. The 1st Respondent followed suit by his Brief of Argument filed on the 19th of July 2021 while the 2nd and 3rd Respondents also caused their Brief of Argument filed later on the 31st of January 2022. Both the Appellants’ and the 1st Respondent’s Briefs were deemed properly filed on the 14th of October, 2021 and the 2nd and 3rd Respondents’ Brief of Argument also deemed filed on the 10th of February 2022.

In the Appellants’ Brief of Argument settled by their learned counsel Uwem U. Umoanwan Esq., three Issues have been formulated; on:
“Whether Exhibit I, the Customary Right of Occupancy can convey title to the Claimant/1st Respondent in the prevailing circumstances of this case?
Distilled from Ground One
Whether Exhibit 10 tendered by the Claimant/1st Respondent was not made during the pendency of the case?
Distilled from Ground Two
Whether the Claimant/1st Respondent was entitled to an order of trespass having Presented faulty documents of the land in dispute?
Distilled from Ground Three.”

For the 1st Respondent, his learned counsel Kauna Penzin Esq. formulated three Issues also; on:
“1. Whether the trial Court was right when it held that the 1st Respondent established his title to Plot MF229 Cadastral Zone 07-05, Kubwa Extension (FCDA Scheme), Abuja, FCT and consequently entitled to declaration of title to the land? (Ground 1).
2. Whether having regard to the facts of this case, Exhibit 10 was an inadmissible document and the trial Court acted in error when it relied upon same? (Ground 2),
3. Whether the trial Court was right when it found that the 1st Respondent proved his case trespass against the Appellants and was entitled to damages? (Ground 3).”

For the 2nd and 3rd Respondents their learned counsel David Z. Dada Esq. formulated two Issues; on:
“(1) Whether the trial Judge was right when he held that the 1st Respondent has established his title to Plot MF22, Cadastral Zone 07-05, Kubwa Extension III (FCDA Scheme), Abuja, FCT and consequently entitled to declaration of title to the Land (GROUNDS 1 AND 2).
(2) Whether the trial Court was right when it found that the 1st Respondent proved his case of trespass against the appellants and entitled to damages (GROUND 3).”

Except for the 2nd and 3rd Respondents who did not formulate the similar second Issues of the Appellants and the 1st Respondent as a specific Issue, the three sets of Issues are basically the same and same will thus be treated together using the Appellants’ Issues as the baseline but without forsaking the worth of those by the Respondents.

As can be seen, the Appellants’ second Issue (supra) which is also the 1st Respondent’s second Issue although couched differently is on whether or not the lower Court was right when it admitted and relied on exhibit 10 as admissible evidence. It is important to determine this Issue first as that will properly define crucial aspects of the respective first Issues of the parties because a great deal of arguments under those Issues are also rooted in exhibit 10.

What exactly is exhibit 10? Sadly, as critical as the Appellants’ second Issue heralds on the legal status of exhibit 10 in the manner the Issue was formulated, the entire arguments by the Appellants under this Issue are canvassed in six short sentences. I will therefore not summarise but reproduce same here thus:
“5.3. We submit that the Writ of Summons of the Claimant/1st Respondent was filed on 20/6/2019 as captured in the face of the Writ of Summons. Any amendment is date back to time where original was filed.
5.4 Exhibit 10 was made during the pendency of the case and was dated 17/2/2020 tendered by the Claimant/1st Respondent in the case who has personal interest in the case.
5.5 We submit that a document tendered by a party who has personal interest in the case is inadmissible in law. See Section 83(3) of Evidence Act, 2011.
5.6 We submit that it would have been a different thing if such a document i.e. Exhibit 10 was tendered by another person who has no personal interest in the case but in official capacity. See the case of SUSANO PHARM CO. LTD. V. SOL PHARM LTD (2000) 4 NWLR (PART 651) PAGE 68, PARAS. B–D. See the case of SALAKO V. WILLIAMS (1998) 11 NWLR (PART 574) PAGE 515 PARAS. C- E.”

Notwithstanding, the learned counsel for the 1st Respondent clearly struggled with space and condensed her arguments on this Issue from pages 13 to 21 of the 1st Respondent’s Brief. As hinted earlier, the 2nd and 3rd Respondents’ counsel did not find this Issue worth his words and thus simply ignored the Appellants.

Although every paragraph in the 1st Respondent’s arguments under the Issue is loaded with notable legal principles and submissions, I will however only highlight same briefly here. It is in her arguments that exhibit 10 does not fall under the category of documents which are rendered inadmissible on the account that they were made during the pendency of litigation; placing her reliance on the provisions of Section 83(3) of the Evidence Act 2011 which she quoted:
“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

Relying on the decision by this Court in Oseni – Yekini & Anor. Vs. Otegbade (2014) LPELR–41101 (CA) where it was held interalia that:
“…The intention of the legislature in enacting this provision (sic) of Section 83(3) of the Evidence Act 2011 is to prevent a potential litigant from exploiting the other side by departing from the path of truth, or crafting documents in contemplation of litigation, or creating a situation where it will appear possible for the party to steal a match against the opponent or by outrightly overreaching the other party.”
the learned counsel submitted that although a document was made during the pendency of a suit, it will not be treated as inadmissible if it was demonstrated that the document was not made by a person interested in the outcome of the litigation or with the intention of stealing a match on the other party. Learned counsel further referred to yet another decision by this Court in Bukola vs. Oshundahunsi & Ors. (2012) LPELR—8546 (CA) where it was held as follows:
“On Issue No. 2, let me begin my consideration of this issue by restating the position of the law in relation to documents prepared in anticipation of impending litigations. Generally, speaking, such documents are not admissible evidence but there are exceptions to this general rule. In the case of Anisu v. Osayomi (2008) 15 NWLR (pt. 1110) p. 246 at 275, this Court per Abdullahi ,JCA held that: “As general principle, document made by a person interested when proceeding(s) are pending or is anticipated is not admissible. The provision, in my humble view, excludes documents made in anticipation of litigation by a person who is not personally interested in the outcome of the litigation. In other words, the disqualification of a person as person interested relates on/to a situation where such a person has personal interest in the matter and not where he merely has interest in an official capacity. Thus where the interest of the maker of the document is purely official or as a servant or employee having no direct personal interest these provisions do not apply to him and as such admissible.” Consistent with the decision of this Court outlined above, I am of the view that Exhibit DW2 though made in anticipation of an action, that in itself would not make it inadmissible in law. The said Exhibit was prepared by the 2nd and 3rd Respondents in their official capacity most likely without any benefit accruing to them. Hence the said Exhibit is admissible in law and I hold without any hesitation that the Judge was right in admitting it in evidence. However, that is not the end the matter. Like I have held above, even though the said Exhibit may have been prepared and issued in anticipation of the suit, that alone, as I have stated a while ago cannot make the document inadmissible rather that fact should go to the weight and to my mind it appears it was even in the Appellant’s interest to admit it in evidence to show how and when the 1st Respondent was issued with the document upon which she bases her title. Admissibility, generally speaking, is found on relevance of document. Though Section 91 (3) of the Evidence Act can apply to reject such document, there is evidence that processes of allocation of the plot had started and was ongoing before the filing of the suit (and which formed the cause of action). To that extent, the document became a necessary part of the 1st Respondent’s claim that should not be denied as evidence of her claim.”

Not done yet, learned counsel went further to distinguish the two decisions cited by her learned friend for the Appellants; namely Susano Pharm Co. Ltd. v. Sol Pharm Ltd (supra) and Salako vs. Williams (supra) by arguing that those decisions in reality support the 1st Respondent’s case I that both decisions are to the effect that the maker of the document in issue must be personally interested in the suit for the document to be rendered inadmissible. I note the other judicial authorities referred by the learned counsel on her arguments under this Issue. Although as stated earlier, this is only a summary, the entirety of the arguments for the 1st Respondent under this Issue is noted.

It is to be noted that there was no Reply Brief filed for the Appellants.

I have carefully perused exhibit 10, found at page 570 of the Record. It is a letter dated the 17th of February, 2020 written by one N. I. Abdullahi Esq. on behalf of the Director of Lands Federal Capital Territory; conveying to the 1st Respondent the 2nd Respondent’s approval for the regularization of the 1st Respondent’s title over the land in dispute. In the judgment of the lower Court, this letter was correctly listed as exhibit “9”; not 10 as repeatedly called by the parties, more particularly by the 1st Respondent’s counsel. See page 840 of the Record. It is to be noted that the series of events that finally culminated in exhibit 9 started way back in 2007 as chronicled through paragraphs 7-17 of the 1st Respondent’s Statement of Claim (then as Claimant) found at pages 6 to 12 of the Record. As is typical however with official reply correspondences, the 1st Respondent finally received exhibit 9 after he had already commenced the suit leading to this appeal. Secondly, exhibit 9 as explained earlier, was made by Mr. N. I. Abdullahi Esq. acting in his official capacity for and on behalf of the Director of Lands Federal Capital Territory. Neither the said N. A. Abdullahi who made the letter nor the Director of Lands of the FCT on whose behalf he made exhibit 9 could by any stretch of imagination be described as “a person interested at a time when proceedings were pending…” within the meaning and intendment of Section 83 (3) of the Evidence Act (supra). Indeed, on the evidence in the Record, neither the Appellants nor more particularly the 1st Respondent knew the said Mr. N. A. Abdullahi Esq; nor also is it shown that he was aware of any pending suit on the subject matter of his exhibit 9. I agree with the learned counsel for the 1st Respondent that the Appellants’ argument faulting exhibit 9 on the ground that it was tendered in evidence by a witness other than the said Mr. N. A. Abdullahi Esq. is one that is neither in the letter of nor deducible from the intendment of Section 83(3) of the Evidence Act (supra). The emphasis by those provisions is on the maker of the document to wit: “…made by a person interested…” and not on the witness through whom it is tendered. This is also the view expressed by this Court in its previous decisions in Bukola vs. Oshundahunsi & Ors (supra) and Olusegun & Anor vs. EFCC & Ors (supra) which I see no reason in this appeal to depart from. In effect, the Appellants’ second Issue along with 1st Respondent’s second Issue are resolved against the Appellants.

I now return to the Appellants’ first Issue which as may be recalled is on whether exhibit 1 can convey title to the 1st Respondent. The case of the 1st Respondent under this Issue is as argued under his first Issue also while the 2nd and 3rd Respondents’ is as canvassed in the arguments under their first Issue too. Learned counsel for the Appellant prefaced his arguments under this Issue with question “whether such a document can be classified as a document of title to warrant the lower Court to grant title to the claimant/1st Respondent.” Learned counsel then drew our attention to the provisions of Section 18 of the Federal Capital Territory Act Cap. 503 LFN by which he submitted that the 2nd Respondent has power to grant Statutory Right of Occupancy over lands situated in the FCT only. He therefore argued that exhibit 1 does not qualify as a Statutory Right of Occupancy or title document; placing reliance on the decision in Madu vs. Madu (2008) 6 NWLR (Pt.1083) 296. He argued further that the grant of a statutory right of occupancy by the 2nd Respondent to the 1st Respondent is ultra vires the powers of the 2nd Respondent under Section 18 of the FCT Act. A coronary argument also is that those provisions did not confer on the 2nd Respondent a discretion to issue a statutory right of occupancy in place of a customary right of occupancy. In addition, as argued, the 1st Respondent failed to establish title to the land; exhibit 1 being defective. He referred to Idundun vs. Okumagba (1976) 1 NWLR (Pt.200) 201; Agbeje vs. Ajibola (2002) 2 NWLR (Pt. 750) 127. Other supplementary arguments of the Appellants under this Issue are noted.

For the 1st Respondent however, it is argued that his title to the land in dispute was sufficiently proved by exhibits 7 and 9 contrary to the misconception of the Appellant that the 1st Respondent relied on exhibit 1 in proof of his title. Learned counsel for the 1st Respondent referred to the lower Court’s lengthy evaluation of the evidence on same at pages 855-856 of the Record in demonstrating that the lower Court granted title to the 1st Respondent based largely on exhibits 7 and 9 instead of exhibit 1 as is contended by the Appellants.

It is also the argument for the 1st Respondent that the Appellants have not appealed against the lower Court’s specific findings on exhibits 7 and 9 by which it upheld the 1st Respondent’s claim of title to the land. For clarity, learned counsel summarised those specific finding as follows:
a. A grant by an Area Council in the FCT (for instance Exhibit 1) is invalid and does not confer any title to land.
b. The 1st Respondent participated in the regularization of land process at the instance of the 2nd Respondent which the Court took judicial notice of.
c. The 2nd Respondent has the power to confer title to land in whatever form as he deems and he can choose to treat as the conferred by Area Councils as merely inchoate and validate them.
d. The 2nd Respondent has approved the retention of the 1st Respondent’s title to the land in dispute.
e. The effect of the 2nd Respondent regularizing the title of the 1st Respondent is that the 1st Respondent has a subsisting right of occupancy over the land i.e. the nature of the grant is a statutory right of occupancy in the terms of the provision of the Land Use Act.

It is her submission here that the Appellants having failed to appeal against those specific findings will not be allowed to rely on vague Grounds of Appeal as was held by the Apex Court in Access Bank Vs. Dura Trust Contractors Ltd & Anor (2019) LPELR-48732. Learned counsel submitted that there being no appeal against those specific findings, this Court cannot disturb same.

Learned counsel further stressed that the 1st Respondent duly proved his title to the land by easily satisfying the criteria for proof of title to land as laid down in Ajiboye vs. Ishola (2006) LPELR—301 (SC); Idundun vs. Okumagba (supra); Kwari vs. Marafa (2017) 8 NWLR (pt.1566), 1 among others. Streamlining the settled criteria for proving title to land in the context of the 1st Respondent’s case, she argued that the 1st Respondent duly proved his title because exhibits 7 and 9 are genuine and valid, that the grantor i.e. the 2nd Respondent had what he granted to the 1st Respondent and that the nature of the grant in exhibits 7 and 9 is of a statutory right of occupancy.

These are not the only but the main arguments for the 1st Respondent; their entirety is however noted.

The 2nd and 3rd Respondents’ arguments on this Issue are basically that by the combined effect of Section 297 (2) of the Constitution which vests the ownership of all lands in the Federal Capital Territory to the Federal Government and Section 18 of the FCT Act which vested on the 2nd Respondent the exclusive power over all lands in the FCT to grant title to land, the exercise of such power by the 2nd Respondent in favour of the 1st Respondent is valid and lawful. Just like the 1st Respondent, the 2nd and 3rd Respondents too argued that the regularization exercise they conducted by which the 1st Respondent’s title to the land was affirmed leading to the issuance of exhibits 7 and 9 to the 1st Respondent was lawful and proper and that exhibits 7 and 9 are sufficient evidence of the 1st Respondent’s title to the land under Section 18 of the FCT Act. Learned counsel for the 2nd and 3rd Respondents also referred the Court to the decision in Ajiboye vs Ishola (supra) and Idundun vs. Okumagba (supra) and submitted that the 1st Respondent had sufficiently proved his title to the land.

In resolving this Issue which essentially revolves around the question of proof of title to the land in issue, I began by examining the 1st Respondent’s Statement of Claim at the trial found at pages 6-12 of the Record, where found as relevant to the resolution the following pleadings:
“5. The Claimant avers that in 2001, he obtained the approval of the Honourable Minister of the Federal Capital Territory, for a Customary Right of Occupancy over Plot No. MF 22 Kubwa Extension III (FCDA SCHEME), which is covered by Right of Occupancy No. FCT/BLTP/LA/KD/1218 (now renumbered KD 43023) and bounded by beacon Nos. PB 1259, PB 1260, PB 1261. Copies of the letter conveying the approval of the Customary Right of Occupancy dated 15th May, 2001 and the Right of Occupancy No. FCT/BZTP/LA/KD/1218 are hereby pleaded and same will be relied upon at trial.
6. The Claimant further avers that subsequent to the grant of the Right of Occupancy, he made payment to the Bwari Area Council for the Certificate of Occupancy over the said land, being MF22, Kubwa Extension III (FCDA Scheme), Abuja, FCT, in the sum of N45,500.00 (Forty-Five Thousand and Five Hundred Naira). Claimant also paid N22,500.00 (Twenty Two Thousand and Five Hundred Naira) as processing and Developing Levy. Copies of receipts for the said payments, with Nos. 042278 and 042279 dated 28th August, 2004 are now pleaded and shall be relied upon during trial.
7. It is Claimant’s further averment that in 2007, the Minister of the FCT issued directives for the regularization of land titles and documents in the Federal Capital Territory, which the Claimant participated in the exercise, he was given a letter of acknowledgment dated 10th May, 2007 and it was at this stage his file number was changed from KD1218 to KD 43023. The letter dated 10th May, 2007 is hereby pleaded and will be relied upon at trial.
8. As the Claimant awaited receipt of the Certificate of Occupancy, another directive was issued requesting all Plot owners to pay N100,000.00 (One Hundred Thousand Naira) as Application Revalidation Fee and submit their land documents for the Accelerated Area Councils Title Regularization and Re-Issuance Scheme (AACTRRIC). The Claimant duly compiled, as he submitted his land documents and paid the said sum to the Abuja Geographic Information System (AGIS) as directed. Copy of the receipt for payment, with transaction No. OB 153122 would be relied upon at trial and same is hereby pleaded.
9. Claimant avers that sometime in January, 2013, he discovered that some unknown persons had encroached on his land known as Plot MF22, Cadastral Zone 07-05, Kubwa Extension III (FCDA Scheme), Abuja, FCT and erected an illegal fence upon it. He wrote a letter of complaint to the Director of Development Control of the 2nd Defendant dated 21st January, 2013. The said fence was subsequently demolished by the 2nd Defendant and this came after the 2nd Defendant marked the fence for demolition and it awaited a period of over one month to see if anyone would claim responsibility, but no one claimed ownership of the fence and land. A copy of the letter dated 21st January, 2013 is now pleaded and shall be relied upon during trial. The Defendants are hereby put on notice to produce the original at trial.
10. The Claimant further avers that after the demolition of the fence erected by the unknown persons, he made an application to the Director, AACTRRIC for revalidation of his Plot. The Claimant subsequently received a text message, stating that the revalidation process will require further scrutiny and by letter dated 1st April, 2014, the claimant made further clarifications on his ownership and requested the 2nd Defendant to ensure the revalidation process is duly considered to avoid a situation his Certificate of Occupancy is issued to a different person. The letter dated 1st April, 2014 is pleaded and will be relied upon at trial. The Defendants are hereby put on notice to produce the original at trial.
11. It is the Claimant’s averment that he later engaged workers to clear the land, with the intention to erect a fence and at this point, one Romanus Eze approached him and claimed ownership of the land, stating that he purchased same from the original owner. All efforts to see the prayers upon which the man claimed ownership were unsuccessful, as Mr. Romanus Eze stated that the Claimant should rather approach the Bwari Area Council for answers to his questions.
12. The Claimant avers that the security man he engaged to watch over the land, later informed him that some men had given some papers to the lady who owns the adjoining land (Plot 23) and negotiations are ongoing to sell the Claimant’s Plot 22 to her. The security man had earlier informed the Claimant that the lady in question had earlier approached him to express interest in the Claimant’s Plot but the Claimant replied that he was not disposing his land.
13. The Claimant avers that he wrote a letter dated 8th July, 2014, requesting the intervention of the Minister of the FCT, however, he did not receive any response. The said letter is hereby pleaded and will be relied upon at trial. The Defendants are hereby put on notice to produce the original at trial.
14. In his further averment, the Claimant states that while his application was pending, a Task Force Team on Land Appeals and Petition, was set up and the Claimant wrote a letter to the Chairman of the Committee dated 10th June, 2016. That the committee submitted its report and recommendation to the Minister of the FCT and a copy was made available to the claimant by a letter from the 1st Defendant dated 19th June, 2016, copy of the committee Report signed by the Chairman and Secretary of the Land Use Allocation Committee and a copy of letter from the 1st defendant are hereby pleaded and same will be relied upon at the trial. Defendants are hereby put on notice to produce the original of the letter dated 10th June, 2016 at trial.
15. Further to paragraph 14 above, the Land Use Allocation Committee’s findings reveal that 2 other persons (who are unknown to the Claimant), namely Nagande Swate (with file No. MUSC 4965) and Rombee Properties Nig. Ltd. (with file No. MISC 834722), submitted for regularization of title respectively in respect of the Claimant’s Plot MF22, Kubwa Extension III (FCDA Scheme) thereby causing a case of multiple allocations and same accounted for the delay in the regularization of the Claimant’s land.
16. The land Use Allocation Committee in its recommendation, stated that the Claimant, whose title is first in time, genuine and he has been in continuous possession should be retained, in respect Plot MF22, Kubwa Ext. III Abuja.
17. Upon the said recommendation, the 1st Defendant wrote the letter referred to in paragraph 14 above and informed the Claimant of his approval that the Claimant should retain the title to Plot MF22 Kubwa Ext. III, Abuja.”

Let us not forget that the Appellants’ main contention is that the lower Court wrongly relied on exhibit 1 in upholding the 1st Respondent’s claim to title while the 1st Respondent’s main contention is that it relied mainly on exhibits 7 and 9 among others in so doing. This contention similarly played out at the trial; which the lower Court considered in detail as follows:
“Now, from the available evidence before this Court, it is not in dispute that the Bwari Area Council granted a customary right of occupancy over the subject matter to the Claimant vide Exhibit 1 dated 15th May, 2001. It is not in dispute that the Claimant submitted his title documents to the 1st and 2nd Defendants for regularization which was acknowledged via Exhibit 4. It is not in dispute that the 1st and 2nd Defendants issued Exhibit 7 dated 19th June, 2019 to the claimant approving the retention of his title over the Subject Matter and the regularization of said title. It is not in dispute that the 1st and 2nd Defendants further wrote.
Exhibit 9 to the effect that out of five submissions for regularization title to the subject matter, only the Claimant’s was regularized with the approval of the 1st Defendant and as such the Claimant is the rightful holder in respect the subject matter.
The question now is what is the effect of all these documents on the Claimant’s claim of title to the subject matter?
I have looked at Exhibit 1. It is indeed a conveyance of a grant of Customary Right of Occupancy in the Subject Matter to the Claimant by the Bwari Area Council of the FCT. All the parties in this case are in agreement that the law (as it is) in the FCT does not recognize a grant ‘Customary Right of Occupancy’ in the FCT particularly by Area Councils as it is only the Honourable Minister of the FCT (the 1st Defendant) that has the power to grant interests in land in the FCT. They are quite right and I believe there is no need to over flog this well settled position of the law. See the provisions of Section 49 of the Land Use Act, Section 297 and 302 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 1 and 18 of the Federal Capital Territory Act. See also the ONA V. ATENDA (supra) MADU v. MADU (supra) and ERIBENNE V. UG & ANOR (2007) LPELR-4172 (CA) which are to the effect that customary right of occupancy does not exist in the FCT as ownership of the occupancy does not the land comprised in the Federal Capital Territory, Abuja is vested in the Government of Nigeria and only the Minister of FCT (i.e. the 1st Defendant in this case) has the authority to grant interests or rights of occupancy in land comprised in the FCT.
The effect of this is that any interest granted by the Area Councils of the FCT in land located in the FCT is invalid or at best inchoate. The 1st Defendant is not bound by such a grant and can make his own grant in respect of such land.
The matter does not however end there. This case suffers some exceptional peculiarities. The undisputed fact before this Court is that the Claimant submitted his title documents granted by the Bwari Area Council in respect of the Subject Matter to the 1st and 2nd Defendants for regularization. Exhibit 4 is an acknowledgment of same.
It is a notorious fact, of which this Honourable Court can take judicial notice that the 1st and 2nd Defendants embarked on the exercise of regularization of title and documents of FCT Area Councils. The implication is that the 1st Defendant who has authority to grant interest in land comprised in the FCT could choose to treat interests granted by the Area Council in such lands as merely inchoate and consequently validate same thus making a grant in respect of same. It is an absolute discretion of the 1st Defendant.
Thus, unless and until the 1st Defendant issues a document in confirmation of the vesting of a right of occupancy in respect of the subject matter upon the Claimant, the customary right of occupancy issues by the Bwari Area council vide Exhibit 1 is insufficient to entitle the claimant to the ownership of the Subject Matter.
Now the 1st and 2nd Defendants vide Exhibit 7 approved the retention of the Claimants title over the Subject Matter and the regularization of same. By their Exhibit 9, they confirmed the regularization of the claimant’s title to the subject matter. His title to the Subject Matter having been regularized by none other than the 1st Defendant, the claimant thus has a subsisting right of occupancy over the Subject Matter. It is a statutory right of occupancy because that is the nature of right of occupancy which the 1st Defendant can grant over land in the FCT — see provisions of the Land Use Act and the FCT Act. For purposes of clarity, paragraph 1 states as follows:-
“I have been directed to refer to the above subject matter and inform you that the Minister of Federal Capital Territory has approved that you retain your title over Plot Nov MF 22, within Kubwa Extension (Federal Capital Development Authority FCDA Scheme) acknowledge regularization vide file No. KD 43023 based on the extant policy of first in time.”
Thus, by exhibit 7, the 1st Defendant i.e. the Minister of FCT has evoked his powers conferred on him by Section 1 and 18 of the FCT Act, Sections 297 and 302 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 49 of the Land Use Act, to convey approval of plot MF 22 within Kubwa Extension III (Federal Capital Development Authority (FCDA) Scheme) to the claimant. The instrument of conveyance as to the manner and form it should be is entirely at the discretion of the 1st Defendant, the Minister of the Federal Capital Territory. In the instant cases exhibit 7 is the document conveying approval of the subject matter of this suit to the Claimant by the 1st Defendant.
Thus, pursuant to all the foregoing, I hold the view that the claimant has established his title to the land subject matter of this case by title documents and I so hold. He is entitled to the declaration of the title sought vide the first relief i. e. relief (a) of the Amended Statement of claim and it is accordingly granted as prayed.”
See pages 854 to 856 of the Record.

Without mincing words, let me say straightaway but with respect that there seems to be a self-induced confusion in the Appellants’ camp by their unfounded insistence that the lower Court relied on exhibit 1 in reaching the decision that the 1st Respondent proved his title to the land in dispute. From the above portion of the judgment, it is as clear as daylight that neither was the 1st Respondent’s claim to title based on exhibit 1 nor did the lower Court based its decision on his claim on exhibit 1. The 1st Respondent’s case as gleaned from his pleadings is clearly based on exhibits 7 and 9 both of which however only traced their root or history to exhibit 1. For reasons known only to the Appellants, they have suddenly become shy or developed cold feet to comment on or even mention exhibits 7 and 9 because throughout their arguments under this Issue, not a single word was said or hinted about exhibits 7 and 9. I hate to think although it so seems that the Appellants have turned the lucid findings of the lower Court upside down. It is beyond question that parties, nay this Court itself, are bound by the record of the lower Court. In Magaji vs. The Nigeria Army (2008) LPELR – 1814 (SC) at page 33 the Supreme Court held thus:
“An Appellant is bound by the record of appeal. He cannot go outside the record and canvass to an appellate Court what he thinks is in favour of his case, which is not the record. The witnesses duly took that oath. The Court of Appeal was very clear on that and I must go along with the Court.”
See also Brittania — U (Nig) Ltd vs. Seplat Petroleum Development Co. Ltd & Ors (2016) LPELR-40007 (SC); Audu vs. AGF & Anor (2012) LPELR–15527 (SC); Sapo & Anor vs. Sunmonu (2010) LPELR–3015 (SC).

To the extent that the Appellants simply ignored the clear findings of the lower Court on its decision upholding the 1st Respondent’s claim to title and proceeded on their deliberate voyage of error this Court cannot but agree with the learned counsel for the 1st Respondent that the Appellants’ arguments under this Issue are a clear misconception of the 1st Respondent’s case and the judgment of the lower Court. More importantly, there being no clear complaints by the Appellants against the specific findings of the lower Court on exhibits 7 and 9 in particular which formed the basis of its decision on the 1st Respondent’s claim to title, this Court cannot willy-nilly disturb the findings and decision on same. The decision of this Court in Access Bank vs. Dura Trust Contractors Ltd & Anor (supra) and by the Apex Court in Daniel vs. FRN (supra) both referred by the learned counsel for the 1st Respondent are supportive of this view. In effect, the Appellants are bound by those findings and the lower Court’s holding on same. This Issue too must therefore be and is thus resolved against the Appellants.

I now come to the Appellants’ third Issue which, as may be recalled, is on whether the 1st Respondent was entitled to Relief for trespass having presented faulty documents.

From the construction of this Issue and the scanty arguments under it which altogether are presented in seven short sentences, it is clear that its entirety is canvassed on the same false notion that the lower Court relied on exhibit 1 in its findings and decision upholding the 1st Respondent’s title to the land in dispute. For emphasis however, there is nothing legally objectionable in exhibits 7 and 9 by which among others the 1st Respondent established and proved exclusive possession to the land in dispute and the Appellants having failed to establish any or better title on same and having also failed to successfully controvert the 1st Respondent’s claim for trespass as rightly found by the lower Court, the Appellants were rightly held to be trespassers.

As referred by the learned counsel for the 1st Respondent, I have read the lower Court’s elaborate findings on the 1st Respondent’s claim for trespass; found at pages 858-859 of the Record thus:
“The instant case, it is not in dispute that the Claimant had originally dug the foundation upon which the 3rd, 4th and 5th Defendants (later in January, 2013) erected an illegal fence on the Subject Matter. It shows that the claimant was in actual physical possession of the subject Matter before the 3rd, 4th and 5th Defendants carried out their acts on same. It is not also in dispute that the Claimant complained of the 3rd, 4th and 5th Defendants demolished the 3rd, 4th and 5th Defendants’ illegal fence. These are evidence of acts of possession in favour of the claimant. The claimsnt certainly has established that he has been in exclusive possession of the subject matter. His evidence, which is unchallenged, is that the 3rd, 4th and 5th Defendants trespassed on the Subject Matter and erected a fence and gate-house thereon; the circumstances clearly show that the 3rd, 4th and 5th Defendants by their actions, trespassed on the Subject Matter in the Exclusive possession of the Claimant. What the 3rd, 4th and 5th Defendants would need to plead and prove to avoid liability for trespass therefore would be ownership of the Subject Matter or better title to same. The Supreme Court has held that even a trespasser in possession can successfully maintain an action in trespass against all the world except the true owner – See the case of BELLO SALAMI & ANOR V. ALHAJI ADETORO LAWAL (2008) 14 NWLR (PT.1108) P. 546.
The 3rd Defendant did not file a statement of defence while the 4th and 5th Defendants abandoned theirs. There is no defence to the Claimant’s claim of trespass which he has successfully established. The 3rd, 4th and 5th Defendants have not established that they are the rightful owners of the Subject Matter so as to justify their acts of trespass. They have failed to discharge the onus of proof which shifted to them in the circumstances. Thus, therefore by the undisputed evidence before me, I hold the view that the Claimant has successfully established trespass on the preponderance of evidence and I so hold. The claimant is therefore entitled to the second, relief i.e. relief (b) of the Amended Statement of Claim and it is accordingly granted as prayed.”

It is my considered view that the above findings and decision of the lower Court are flawless and cannot therefore be disturbed by this Court. Just like those before it, this Issue two is resolved against the Appellant.

The three Issues of the Appellants having thus been resolved against them, the appeal ends as one without merit, liable to be and is accordingly dismissed. The judgment of the lower Court in Suit No. FCT/HC/CV/2241/2019 delivered on the 16th of December, 2020 is affirmed.
I make no order on cost.

PETER OLABISI IGE, J.C.A.: I have read before now, the draft judgment of my Learned Brother, BATURE ISAH GAFAI, JCA.

I am of the view that my Learned Brother has succinctly dealt with the issues set out for the determination of the appeal to arrive at his findings, reasoning and conclusion in resolving the three issues distilled by the Appellants against the Respondents. I also agree that the appeal lacks merit and is hereby dismissed.

The judgment of the lower Court in Suit No. FCT/HC/CV/2241/2019 delivered on the 16th day of December 2020 is affirmed.
There is no order as to costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance, a draft copy of the leading judgment just delivered by my learned brother, ISAH BATURE GAFAI JCA., and I am completely satisfied with the reasoning and conclusion reached therein to the effect that the appeal lacks merit and is thus, liable to be dismissed.

In an action for declaration of title to land, it is settled law that the burden of proof is on the Claimant to prove by credible evidence one or more of the five methods of proof of title to land by which he became owner of the land, namely: a. Evidence of traditional history of title; b. Production of genuine and valid documents of title; c. Numerous acts of ownership; d. Acts of possession over a long period of time, or, e. Acts of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute.

See Chief Adeboye Amu & Anor V. Helen Adolor (2022) LPELR- 56796 (CA) per Biobele Abraham Georgcwill, JCA. See also Idundun V. Okumagba (1976) 6-10 SC 48. See also Nruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426; Ojah V. Eviawure (2000) FWLR (Pt. 57) 163; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 AT p. 133; Romaine V. Romaine (1992) NWLR (Pt. 235) 650.
In Ezukwu v. Ukachukwu (2000) 1 NWLR (pt. 642) 657 AT p. 679 it was reiterated inter alia thus:
“A Claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root of title need must be, firstly established before the exercise of the rights of ownership may be exercisable.”

Now, in the leading judgment, it has been demonstrated, and I agree completely with it, that the findings and conclusions reached by the lower Court in declaring the title to the land in dispute in favor of the 1st Respondent was correct. In my view, that is or should be the end of this appeal. This Court, being an appellate Court, does not make it a habit of interfering with the correct findings and/or decisions of the lower Court. Rather, we affirm such correct findings and/or decisions of the lower Court. I hereby do so affirm the decision of the lower Court appealed against as correct. See Agbon – Ojeme V. Selo Ojeme & Ors (2020) LPELR-49688 (CA) per Sir Biobele Abraham Georgewill, JCA. See also Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors 2004 13 NWLR (Pt. 889) 187 AT p. 198.

It is for the above few comments of mine but for the fuller details and reasoning as adroitly marshalled out in the leading judgment, that I too hold that this appeal lacks merit and is thus, liable to be dismissed in its entirety. Accordingly, I too hereby dismiss the appeal and shall abide by all the consequential orders made in the leading judgment, including the Order as to no cost.

Appearances:

UWEM U. UMOANWAN ESQ For Appellant(s)

PENZIN KAUNA MANKO for 1st Respondent.

DAVID ZAMWAWOBAYI DADA for 2nd and 3rd Respondents. For Respondent(s)