George Tozhewo & Ors v. Winning Clause Limited & Ors (2025) LLJR-CA

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER CHUDI OBIORAH, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the High Court of Federal Capital Territory Abuja delivered on the 12th day of March, 2021 by Honourable Justice A. O. Ebong.

The 1st respondent, as plaintiff, sued the appellants as the defendants at the lower court.

The 2nd respondent was the 10th defendant in the suit. The suit is a land matter and the subject matter is Plot 67 Kafe District Abuja.

The claim of the 1st respondent over the land is based on allocation of same by the 2nd respondent for development under the Mass Housing Development Programme. On the other hand, the appellants’ counterclaim is hinged on the basis that they are the original inhabitants of the land.

By the further, further amended statement of claim, the 1st respondent claimed against the defendants jointly and severally as follows:

1. A declaration that the defendants’ claim over plot 67 Kafe District FCT or any part thereof is in violation of sections 297 and 302 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and section 1(3) of the FCT Act 1976 and therefore unconstitutional, illegal and unlawful.
2. A declaration that the plaintiff’s leasehold interest over Plot 67 Kafe District, Abuja based on the development lease/contract she entered with the Honourable Minister of the FCT is valid and subsisting.
3. A declaration that the occupation of a part of the said plot 67 Kafe District Abuja by the defendants and their activities thereon constitutes a trespass.
4. N600,000,000 (Six hundred million naira) damages for trespass against the 1st – 9th defendants.
5. An order of specific performance compelling the 10th defendant to observe and fulfill the terms of the Development Lease Agreement he entered into with the plaintiff.
6. An order of perpetual injunction restraining the defendants whether by themselves, their agents, workmen, privies etc. from entering, remaining/occupying, trespassing, carrying out any form of activities including harassing and intimidating the plaintiff’s workers, tenants and visitors on the entire plot 67 Kafe District, Abuja or any part thereof.
7. N15,000,000.00 (Fifteen million naira) only being the cost of this action.
8. 10% interest on the above claimed sums from the date of judgment till final liquidation.

The appellants, as the 1st – 9th defendants, incorporated a counter claim in their further, further amended statement of defence and sought the following reliefs.

1. A declaration that the document dated the 17th March, 2011 purportedly issued by the 10th defendant/2nd defendant to counter claim, to the plaintiff/1st defendant to counterclaim with the accompanied (sic) Lease Agreement vesting plot 67, Kafe District on the plaintiff/1st defendant to counter claim is null and void.
2. An order on the plaintiff/1st defendant to counter- claim and the 10th defendant/2nd defendant to counter claim not to disturb the quiet possessions, residences and developments of the counterclaimants situate at plot 67 Kafe District Federal Capital Territory Abuja or/and Kuchbedna Village Abuja Municipal Area Council, Abuja having integrated, lached and acquiesced thereto.
3. An order of perpetual injunction restraining the plaintiff/ 1st defendant to counter-claim and 10th defendant/2nd defendant to counter claim, their servants, agents, privies or/and any authority, howsoever called, from causing or taking steps to eject, remove and/or demolish the buildings of the counterclaimants, situate at Kuchbedna Village, Abuja, without first making available to them alternative habitable residence or alternative place/piece of land to enable them erect residential apartments, with adequate infrastructure provided.
4. Damages or/exemplary damages in the sum of N500,000,000.00 (Five hundred million naira) only against the plaintiff/1st defendant to counterclaim and 10th defendant/2nd defendant.
5. The cost of this counterclaim.

At the end of the trial, the lower court granted the 1st respondent’s claim and dismissed the counterclaim of the appellants as an abuse of court process. The appellants were dissatisfied with the judgment of the lower court and sought refuge in this court for redress by way of an appeal.

The appellants filed their notice of appeal of two grounds of appeal on 19/3/2021 which is at pages 729 – 731 of the record of appeal. The record of appeal was transmitted on 28/6/2022 and deemed transmitted on 19/11/2024. The appellants’ brief of argument was filed on 29/11/2022 and the reply brief on 19/11/2024.

The 1st respondent’s brief of argument was filed on 1/9/2023. At the hearing of this appeal on 19/11/2024, Seidu Alfa, Esq. of counsel for the appellants and Dr. Chidi Nwankwo leading Richard Ubah, Esq. of counsel for the respondent adopted their processes paving the way for the judgment of this court.

The appellants’ counsel formulated a sole issue for determination, to wit:

Upon a holistic consideration and evaluation of the evidence before the lower court, the appellants have proved their case on preponderance of evidence (Distilled from ground 1 in the notice of appeal).

The 1st respondent’s counsel formulated two issues for determination of the Court of Appeal are as follows.

1. Whether or not the trial court was correct when it granted the 1st respondent reliefs 1, 2 and 3 based on the evidence before the court and the admission of the 2nd respondent. (Distilled from ground one of the notice and grounds of appeal)
2. Whether or not the decision of the lower court is not consistent with the evidence led at the trial. (Distilled from ground two of the notice and grounds of appeal)

I have looked at the issues formulated by the two sides. The issues are basically saying the same thing though in different words as they seek to determine if the decision of the lower court is right based on the evidence led in the case bearing in mind the fact that the parties have their respective claim and counter claim. Accordingly, and for brevity, I think the second issue formulated by the 1st respondent captures the point. I will set it down as the broad issue for determination without prejudice to consider the entire arguments and contentions made by the parties in this appeal.