Engr. Yakubu Ibrahim & Ors V. Simon I. Obaje (2005)
LawGlobal-Hub Lead Judgment Report
MARY UKAEGO PETER ODILI, J.C.A.
This is an appeal against the judgment of Hon. Justice U. I. Ndukwe Anyanwu of the Abuja High Court dated 30th July, 2002 wherein the learned trial Judge granted a declaration of title to land in respect of a piece of land situate at plot F96, Dutse Alhaji, Abuja, FCT, perpetual injunction restraining the appellants from committing further acts of trespass on the said land and N1.6 million damages awarded against the appellants as special damages for trespass. The appellants being dissatisfied filed an appeal to this Court on a notice of appeal dated 8th day of August 2002.
RELIEF SOUGHT:
An order setting aside the judgment of the lower Court and an order dismissing the plaintiff’s case at the lower Court. The parties filed their briefs of argument in accordance with the rules and exchanged same.
FACTS:
From the statement of claim, the plaintiff/respondent asserted that he is the owner of the landed property known and described as plot F96, Dutse Alhaji, Abuja and that he also had possession of the said parcel of land. That he bought the plot
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from the former owner, Mr. Otitoju Bonte who conveyed title to him, respondent by virtue of an irrevocable power of attorney dated 19th October, 2000 given for value. That the said plot F96, Dutse Alhaji is covered by a certificate of occupancy No. FCT/M2TP/OD/276 of 15th June, 1995 granted by Bwari Area Council. That a building plan for development of the plot was applied for and approved, by the supervisory authority. That respondent commenced development on the plot with the initial structure totally completed. That while construction was on, the defendants/appellants trespassed into the construction site and harassed the workers and disrupted the work. When these did not deter the work, the appellants got policemen who ordered the workers of the respondent to stop work. In the absence of the workers, the appellants got into the plot and destroyed the concrete structure and a report of this destruction was made by respondent to the police whereof plaintiff/respondent claimed:-
i. Declaration of title over plot F96 in his favour.
ii. An order of perpetual injunction restraining the defendants/appellants and their servants, agents and privies from
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any further trespass to the land.
iii. N1,600,000 (One million, six hundred thousand naira) special damages and listed are the items of the damages and value.
Also claimed is interest on the judgment sum at the current bank rate until judgment is delivered and thereafter at such rate and for such period as the Court should think fit.
The 1st defendant/appellant in his statement of defence while denying the respondent’s ownership of the said land in dispute averred that he is the bona fide owner by virtue of a written agreement dated 21st February, 1996. That he, 1st appellant has been in peaceful possession of the said land since that 21st February, 1996 when he purchased same from one Mohammed A. Kalgo. That the plaintiff/respondent could not have bought the piece of land from Mr. Otitoju Bonte vide a purported power of attorney, as the said Mr. Otitoju Bonte is not the owner of the said piece of land. That the said Mr. Otitoju Bonte had earlier requested 1st defendant/appellant to sell the said piece of land to him but 1st defendant/appellant refused before the purported allocation of the same to the said Otitoju Bonte. Appellants stated
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that the respondent did not commence any development or complete the initial structure on the said piece of land. That the appellants did not trespass into respondent’s purported construction site to harass and disrupt work and did not bring policemen to order workers out of the purported site. The 1st defendant/appellant said the 2nd defendant/appellant is his wife. That 3rd and 5th defendants/appellants are not members of 1st defendant/appellant’s family.
That 4th defendant/appellant is not a family member of the other defendants/appellants. The appellants denied destroying any purported concrete structure on the said land and that 1st appellant was away in Italy at the material time while 2nd appellant was with her parents in Benin City. That the plaintiff/respondent was not therefore entitled to the claims having not suffered any damage or injury as a result of the activities of the appellants or destruction of the purported concrete structure/construction site. That the claims be dismissed.
The learned trial Judge however found for the plaintiff/respondent and made orders as earlier stated in accordance with the claim of the
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respondent wherefore the appellants have come to the Court of Appeal to set aside the judgment and orders.
The appellants in their brief of argument formulated five issues which also were the same issues the respondent tackled in his own brief:-
ISSUES FOR DETERMINATION:
1. Whether a donee of power of attorney can validly commence a suit in his personal name in a Court of law.
2. Whether a writ of summons that is claiming a declaration of title to a piece of land within the Federal Capital Territory discloses a cause of action.
3. Whether a power of attorney can transfer title in land from one person to another.
4. Whether the award of N1,600,000 special damages is in accordance with the principle and law regarding award of special damages.
5. Whether the judgment is against the weight of the evidence adduced at the trial.
ISSUE NO. 1:
Whether a donee of power of attorney can validly commence a suit in his personal name in a Court of law.
In answer to this question, learned counsel for the appellants said that it is settled law that any action to be commenced is in the name of the donor. That any action as
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in the present case where the suit was commenced by the holder of the power of attorney in his personal name was incompetent and so there is no proper plaintiff. He cited the cases of:- Ude v. Nwara (1993) 2 SCNJ 47 at 68; United Nigeria Company Ltd. v. Nahman (2000) FWLR (Pt. 27) 1988, (2000) 9 NWLR (Pt. 671) 177 at 187-188.
That any suit without a proper plaintiff is incompetent and so the Court should answer question No. 1 in the negative.
In reply, learned counsel for the respondent said respondent manifestly complied with the provision of the Evidence Act and Sections 3 and 15 of the Land Registration Act, Cap. 515 Laws of the Federation of Nigeria, 1990. That the decision of the Court in Ude v. Nwara (1993) 2 SCNJ 47 at 66 and United Nigeria Company Ltd. v. Nahman (2000) FWLR (Pt. 27) 1988, (2000) 9 NWLR (Pt. 671) 177 at 187-188 must be distinguished from the present case since the situation and facts are not the same as in the case cited above. That the content and nature of a particular power of attorney must be considered in arriving at a decision. He cited the case of Cardoso v. Daniels (1986) 2 NWLR (Pt. 20) 1 at 45 where Oputa, JSC
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said a judgment must be based on legal rights of the parties as distinguished from matters of practice, procedure, jurisdiction or form.
Mr. Nwazota, learned counsel for respondent in the same view cited the Supreme Court case of U.T.C. (Nig.) Ltd. v. Pamotei (2001) 43 W.R.N. 63 at 76, 113, 124, (2002) FWLR (Pt. 129) 1557 and also Hassan v. Jauro (2002) 25 W.R.N. 18 at 21 (per Oduyemi, JCA).
Learned counsel for the respondent further asserted that the respondent caused the power of attorney to be registered as required by law since such registration constitutes a notice to the whole world that the property covered by the power of attorney is encumbered. That the contents of the power of attorney which was admitted as Exhibit A was considered by the lower Court to determine its proper position and relevance in the suit.
Having perused the different positions of the parties as represented by their counsel on the matter of the power of attorney, it’s competence or otherwise I would like firstly to refer to the case of United Nigeria Company Ltd. v. Nahman (2000) FWLR (Pt. 27) 1988, (2000) 9 NWLR (Pt. 671) 177 at 187-188 per Sanusi, JCA
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wherein he said:
“An agent acting under a power of attorney should as a general rule act in the name of the principal. If he is authorized to sue on the principal’s behalf the action should be brought in the principal’s name. A deed executed in pursuance of such a power is properly executed in the name of the principal or with words to show that the agent is signing for him, but the donee of the power may, where so authorized by the donor of the power, to execute any instrument with his own signature and, where sealing is required with his own seal, and act in his own name. This provision for execution and action by the donee in his own name exists as an alternative to the statutory procedure for the execution of a conveyance by the attorney of a corporation or by a corporate attorney. Any document executed or thing done under this provision is as effective as if executed or done in the name of the donor of the power.”
I answer the question No. 1 in the positive thereby accepting the position of the respondent’s learned counsel.
On issue No. 2:
Learned counsel for the appellants asked:-
?Whether a writ of summons that is claiming
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a declaration of title to a piece of land within the Federal Capital Territory discloses a cause of action?
Learned counsel for the appellants in answer to issue No. 1 said by virtue of Section 1(3) of the Federal Capital Territory Act, Cap. 28 Laws of Federation of Nigeria, 1990, the land within the Federal Capital Territory was vested exclusively on the Federal Government of Nigeria with effect from 1976. That all former occupants lost their radical title to the Federal Government which position learned counsel said was restated by Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999. He referred to the case of Joseph Ona v. Atanda (2000) 5 NWLR (Pt. 656) 244 at 267- 286.
Learned counsel for appellants said the position of ownership of land within the Federal Capital Territory Abuja is akin to the position of ownership of land in the States. He referred to Section 1 of the Land Use Act, 1978 by virtue of which section, all the title to land within the States are vested in the Governor of States of the Federation. Learned counsel for appellants said it will therefore be wrong in law for a plaintiff to claim for declaration
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of title to land. The highest title a litigant can possess is “right of occupancy”. That a plaintiff can only claim to be someone who is a holder of a certificate of occupancy or person entitled to be given such a right of occupancy. Therefore learned counsel urged the Court to answer issue No. 2 in the negative.
In answer to this issue No. 2, learned counsel for the respondent said there is no dispute as to the provision of the Land Use Act, Federal Capital Territory Act and the Constitution of Nigeria that all lands in Nigeria are vested in the various Governments of the federating States and the Federal Government. That notwithstanding, claims to title can be made by individuals against other individuals. The Government holds land in trust for Nigerians and would divest an individual of possession and or title for overriding public interest. He referred to Section 28(3)(A) Land Use Act, Cap. 202 Laws of the Federation of Nigeria, 1990. Learned counsel went on to say that the Supreme Court and other Courts in Nigeria in very many decisions have stipulated five ways through which a plaintiff may prove title to a piece of land. He referred to Idundun
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- Okumagba (1976) 9-10 SC 227; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Adelakun v. Ishgbekun (2002) 29 WRN 146 at 148, Hassan v. Jauro (supra).Learned counsel for the respondent stated that all the authorities have shown that a Writ of summons may be issued to claims for declaration of title to land even in the Federal Capital Territory. The respondent was in possession of plot F96 when appellants trespassed upon the site and destroyed the building thereon. That appellants want to show that the F.C.T., which is not a party to this suit has better title. That the law would not allow the appellants who have failed to show any title whatsoever to plead to right of a third party as they appear to be doing here. He referred to Adelakun v. Ishgbekun (supra) p.158.Mr. Nwazota for the respondent said respondent has proved his title to the piece of land (plot F96) in the lower Court. That assuming without conceding that the respondent failed to do so before the Court that fact would not also have any effect on the right of possession accruing to the respondent and that claims for title over land in F.C.T. by means of a writ discloses a cause of
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action.
The main question before this Court is who the rightful owner of the land in dispute is and thereafter the means of acquisition. It is to refer to some of the cited cases to unravel the mystery so to speak on the issue. There have been posited several ways in proof of title to land and so we shall refer to the case of Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511. The Supreme Court held at page 533 that it is now settled law that a party may prove title to a piece of land in any of the following five ways:-
a) By traditional evidence.
b) By documents of title.
c) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the reference of ownership.
d) By acts of long enjoyment and possession of the land.
e) By proof of possession of adjacent land in circumstance which render it probable that he is the owner of the disputed land, see Idundun v. Okumagba (1976) 9-10 SC 277.
In Otukpo v. John (2000) 8 NWLR (Pt. 669) p. 507 at 521 per Mohammed, JCA
“A certificate of occupancy is evidence of title or possession”
In the Case of Registered Trustees,
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Apostolic Mission v. Olowoleni (1990) 6 NWLR (Pt. 158) 514, it was held that possession of a certificate of occupancy is not a conclusive proof of title. The Court has got the power to inquire into the validity and existence of the title.
In Anwasi v. Chabasaya (2000) 6 NWLR (Pt. 661) 408 at 420 D-E, it was held that a certificate of occupancy is only a prima facie evidence of title to land, it can be set aside. That is that the claim to certificate of occupancy is rebuttable.
Following these authorities, it is clear to me that indeed, a writ of summons that is claiming a declaration of title to a piece of land within the Federal Capital Territory discloses a cause of action. In that regard, I am inclined to the position of the respondent’s counsel on this issue. I would hasten to add that the appropriate Court having jurisdiction in land matters in the Federal Capital Territory is the High Court of the F.C.T. (Federal Capital Territory) by virtue of Section 236 of the 1999 Constitution since it has been shown that there is no customary right of occupancy in the Federal Capital Territory and that Section 41 of the Land Use Act is also
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inapplicable in the Territory. The jurisdiction of that Court is subject however to the provisions of Section 230(1)(q) and (1) of Decree 107 of 1993 (now Section 251 of the 1999 Constitution) whereby the Federal High Court would assume jurisdiction where the Government of the Federation or any of its agencies is a party to the action. See Ona v. Atanda (2000) 5 NWLR (Pt. 656) 244 at 267-268 per Akintan, JCA (as he then was).
Based on the foregoing, I answer issue No.2 in the affirmative.
On issue No. 3, learned counsel for the appellants asked, whether a power of attorney can transfer title in land from one person to another?
Learned counsel for the appellants said under the Land Use Act, Section 21, alienation and surrender of rights of occupancy can only be done with the consent of the Governor in any of the following ways: assignment, mortgage, transfer of possession and sublease. Learned counsel for appellants said there is no way the above section can be stretched to accommodate power of attorney. That a power of attorney merely authorizes the donee to step into the shoes of the donor and act in donor’s name and in his stead. That
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the donee does not have capacity of his own, hence he cannot bring any action or act in his personal name. He cited Ude v. Nwara (1993) 2 SCNJ 47 at 66, United Nigeria Company Ltd. v. Nahman (2000) FWLR (Pt. 27) 1988, (2000) 9 NWLR (Pt. 671) 177 at 187-188. Learned counsel urged the Court to answer question No.3 also in the negative.
Learned counsel for the respondent on his part argued that there is no law that states that parties cannot enter into various contractual positions in ways and manner most suitable to them. What the Court would consider is the content or substance of any contractual term and not the form. He cited Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1 at 45, United Nigeria Co. Ltd. v. Nahman (supra) p. 182.
Mr. Nwazota, learned counsel for respondent said the appellants alleging that consent was not sought for and had before alienation goes to no issue since it was not canvassed at the lower Court, no evidence was led and above all it was not pleaded. Also that the appellants cannot seek to enforce the requirement for consent as they have not shown any privity thereat. That even if any contractual provision was made for their
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benefit, they cannot enforce it since they are not privy to it. He referred to the case of Ajagungbade III v. Adeyelu II (2002) 9 WRN 92 at 105. He further stated that individuals with the capacity to contract are at liberty to transfer bona fide titles to whosoever is qualified to assume such title where the requirement of the law is observed. That it is the rule that where a deed of conveyance is registered, it becomes sufficient proof of title to land. He cited Adelaja v. Alade (1999) 4 SCNJ 225 at 229, 230.
It is difficult for this Court to go along with the reasoning of the learned counsel for the appellants as he proceeded in this issue No.3 on wrong premises of the law. Firstly, the issue of the absence of Governor’s consent before the transfer of title or ownership to the respondent does not arise since the provisions of the Land Use Act in relation to the powers of a Governor of a State does not arise in relation to land in the Federal Capital Territory. See Section 49(1) of the said Land Use Act. Also Akintan, JCA (as he then was) in Ona v. Atanda (2000) 5 NWLR (Pt. 656) 244 at 267.
?Furthermore, the assertion on the matter of the
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absence of consent cannot even be entertained at this point, appellants not having pleaded same in pleadings nor canvassed or even inadvertently brought that in evidence at the lower Court. I am of the clear view that depending on the particular power of attorney that is, its contents and its intendment, it can transfer interest to a donee or the donee can equally hold unto all the rights or powers of the donor and since in this instance the donor’s certificate of occupancy is clearly evident and on display. The appellants have not shown any serious challenge in that regard and I hold that issue No. 3 has been answered in the affirmative.
On issue No. 4:-
Whether the award of N1,600,000.00 special damages is in accordance with the principle and law regarding award of special damages?
Learned counsel for the appellants said there was no evidence adduced in support of the items stated in the pleadings as special damages. That it is now settled law that any part of a statement of claim that no evidence is adduced in support is deemed to be abandoned. He cited Union Bank Plc. v. Sparkling Breweries Ltd. (2000) 15 NWLR (Pt. 689) 200 at 214;
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Nnanna v. Onyenakuchi (2000) FWLR (Pt. 20) 607, (2000) 15 NWLR (Pt. 689) 92 at 101.
That respondent abandoned his claim of special damages as enumerated at Paragraph 13 (iii) (a) – (p) of the statement of claim and so it was wrong of the trial Judge to award the sum of N1.6 million as special damages. That it is a well established principle of law that special damages must be specially pleaded and strictly proved. That proof of special damages is not by conjecture or by way of presumption but must be strictly proved. He cited the cases of:-Permanent Secretary, Federal Ministry of Education v. Akinloye (2000) 14 NWLR (Pt. 686) 100 at 105; Angel Spinning and Dying Ltd. v. Ajah (2000) FWLR (Pt. 23) 1332, (2000) 12 NWLR (Pt. 685) 532 at 551; Agunwa v. Onukwe (1962) 1 All NLR 537 at 539; Imana v. Robinson (1979) 3-4 SC p. 1 at 23.
Learned counsel for the appellants further contended that the appellants are not expected to controvert issues that no evidence was adduced at the trial. That he who alleges must prove. He referred to Section 137 of the Evidence Act. That respondent alleged that he suffered special damage, the onus is on him to prove same
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strictly. He stated on that respondent cannot rely on the failure of the appellants to question the price of the materials which were not even in evidence. Therefore that the trial Judge used an unknown principle of law in arriving at the award of N1.6 million naira as special damages and so issue No.4 should be answered in the negative.
The learned counsel for the respondent said the respondent as PW1 and other witnesses PW2, PW3 and PW4 all gave evidence showing that respondent’s building was destroyed and by the appellants. That 1st, 2nd, and 4th appellants as defendants testified for themselves without calling any other witness to testify on their behalf. That while 1st appellant in his statement of defence pleaded his international passport to show that he was not in the Country, that passport was not tendered and no proof or evidence was shown that he was not in the country as averred and so he abandoned that pleading and defence. Learned counsel for respondent cited the case of Ikenye v. Ofune (1985) 2 NWLR (Pt. 5) 1.
Learned counsel for respondent went on to say 2nd defendant/appellant was said to be in Benin with her parents but on
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cross-examination contradicted herself and admitted that she was in Dutse Alhaji on the date the destruction of the respondent’s building site was done. Learned counsel said evidence which is not in accord with facts pleaded goes to no issue. He cited Shell Petroleum Co. (Nig.) Ltd. v. Ambah (1999) 2 SCNJ 152, 154.
He stated on that 4th appellant as DW3 during his own evidence did not put up any defence to show that he was not present on the site at plot F96 and the other appellants did not come to Court at all and did not give any evidence in their defence. Learned counsel for respondent said the engineer as PW2 charged with the construction at plot F96, PW3 and PW4 who are policemen identified the appellants as being present at plot F96 and indeed carried out the destruction. That trespass and destruction of the respondent’s site at plot F96 was proved as shown by record of proceeding and since trespass is actionable per se the respondent is entitled to damages properly awarded by the lower Court. He cited Hassan v. Jauro (supra) p. 22.
?He stated on that, it is the law that damages for trespass must be granted if claim for title and
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injunction succeeds which respondent has established to be so and there being no miscarriage of justice to warrant disturbing the judgment that judgment of the lower Court should be upheld.
On this issue of whether or not the lower Court was right in awarding the special damages of one million, six hundred thousand naira to the respondent, it is necessary to get back to the evidence before the lower Court upon which learned trial Judge made her findings and decision. The respondent in testifying as PW1 stated that he acquired plot F96 through a power of attorney given him by Mr. Otitoju Bonte. That Mr. Otitoju Bonte himself had a certificate of occupancy. He said he, respondent applied for and got a building plan approved by the Area Council. All these were admitted in evidence as Exhibits A, B and C respectively. That he had built therein a one bedroom apartment fenced with a gate in place which was pulled down by the appellants. That he sustained losses totalling about N1.6 million as enumerated in the statement of claim. The evidence of PW1 and all other prosecution witnesses pinned the 2nd defendant/appellant at the site participating in the
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demolition of the structure and in getting into the premises in the first place when work was in progress and disrupting affairs as agents of the 1st defendant/appellant who was in the know that such should take place.
The 1st defendant/appellant as DW1 said he was outside the country at the material time. He did not tender any travel documents to show same nor produced any witness in support of that claim. He further said 2nd defendant/appellant who is his wife was not in Abuja on the day in question being in Benin with her parents. 2nd defendant/appellant as DW2 under cross-examination said she was in Dutse Alhaji, in Abuja on the day of the incident even though she denied being at the site at the time of the incident. 1st defendant/appellant claimed to have bought the land in dispute from one Mohammed Kalgo by an agreement admitted as Exhibit D, which was made in 1996. That he had paid N45,000.00 but was yet to apply for a certificate of occupancy. He admitted under cross-examination that the Certificate of Occupancy of Mr. Otitoju Bonte was made in 1995, which was the root of title of the plaintiff/respondent.
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The appellants’ attitude to
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the claims of damages made by the respondent was a blanket denial of such structure and that there was no destruction and that is the basis upon which appellants say the special damages had not been proved and should not have been granted by the learned trial Judge. I disagree with the appellants and am satisfied that the items of special damages were properly stated in the pleadings and the evidence sufficient as put forward by the respondent since really the appellants neither countered those special damages in their own pleadings and in evidence merely dismissed the issue of injury or damages in an offhanded way. I am resting my view having referred to the case of Permanent Secretary, Federal Ministry of Education v. Akinloye (2000) 14 NWLR (Pt. 686) 100 at 105 per Ige, JCA wherein she said:
“1. Where a plaintiff is claiming some specific amount as special damages he must particularize it and prove it strictly in order to succeed. [Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623; Oshijirin v. Elias (1970) 1 All NLR 153 referred to].
2. The standard of proof required from a plaintiff in support of a claim for damages when unchallenged is minimal because
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strict proof of special damages does not mean an unusual or extraordinary proof. Imana v. Robinson (1979) 3-4 SC 1; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417 referred to].
In Imana v. Robinson (1979) 3-4 SC 1 at 23, the Supreme Court had held that the term “strict proof? required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleading. It should therefore normally consist of evidence of particular losses, which are exactly known or accurately measured before the trial.
Considering these principles, what the respondent did in evidence was enough to prove his losses which were properly itemized and costed in pleadings and were not rebutted either in the statement of defence or in the evidence of the defence in Court. Therefore, issue No. 4 is answered in the affirmative and I see no. reason to disagree with the findings of the learned trial Judge or to alter the N1.6 million special damages she awarded.
On issue No. 5.
Whether the judgment is against the weight of the evidence adduced at the trial?
?Learned counsel for the appellants, Chief
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Karina Tunyan stated that it is the duty of the trial Judge to consider all evidence tendered by the parties at the trial. That the learned trial Judge failed to consider the evidence adduced by DW1 as to how he acquired the piece of land talkless of weighing the evidence adduced by both parties on imaginary scale as required in the case of Odofin v. Mogaji (1978) 11 NSCC 275 at 277. That the mere possession of a certificate of occupancy is not conclusive proof of title. He cited the cases of Otukpo v. John (2000) 8 NWLR (Pt. 669) p. 507 at 521, Anwasi v. Chabasaya (2000) 6 NWLR (Pt. 661) p. 408 at 42.0.
Learned counsel for the appellants said the trial Judge failed to consider Exhibit D, the written agreement of sale between Mohammed Kalgo and 1st appellant. That notwithstanding assurance of customary right of occupancy to Mr. Otitoju Bonte in a later date the interest of 1st appellant on the land will prevail since he acquired it earlier.
Countering that assertion, learned counsel for the respondent said the learned trial Judge carefully considered all the evidence of parties before arriving at a decision. That the 1st appellant did not trace
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his root of title apart from saying he bought a piece of land measuring 50 feet by 160 feet from one Mohammed Kalgo and stopped there. That 1st appellant did not show the source of title of the said Mohammed Kalgo. Learned counsel of respondent said by virtue of Section 1(3) FCT Act, Cap. 28, Laws of the Federation of Nigeria, 1990 the appropriate authority to give certificate of occupancy over plot F96, Dutse Alhaji through the Bwari Area Council (sic). He referred to Section 3, Ministers’ Statutory Powers and Duties Act, Cap. 228 Laws of the Federation, 1990. That the appellants had tendered Exhibit D as an unregistered document pertaining to land which ought not to have been received in evidence, He cited Section 15 Land Registration Act, Cap. 515 Laws of the Federation of Nigeria, 1990. That the non-existent Mohammed Kalgo cannot give what he does not have, “nemo dat quod non habet”.
In answer to issue No. 5, I would have recourse to the findings of the learned trial Judge, she stated in her judgment that 1st defendant is claiming title to this land but no document of title has been tendered to this effect and even though he asserted that
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his title is from Mohammed Kalgo there was no history to buttress that title. That the trial Judge found that nothing tangible had been said to controvert the truth of the claims of the plaintiff (respondent) and said:
“The plaintiff acquired interest in plot F96 in Dutse Alhaji FCT Abuja. The land was properly surveyed and the TDP attached to the certificate of occupancy (customary). This certificate of occupancy was properly signed and registered in the name of the beneficiary, Mr. Otitoju S. Bonte who devolved his interest to the plaintiff (respondent) with a power of attorney duly stamped. That the plaintiff (respondent) submitted a building plan which the Abuja Municipal Council (AMAC) approved before he commenced work.”
That the paper that defendant is exhibiting as his title to land cannot be accepted as title to land in the FCT and only the Minister of FCT or his delegate can give land in the FCT. That the evidence of all the prosecution witnesses placed the defendants/appellants on the site on that day and there was no independent evidence showing that defendants/appellants were in another place at the time and date of the
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incident. That plaintiff/respondent adequately pleaded and proved the damages and cost of materials.
The findings of the learned trial Judge cannot be faulted, the findings being based on exactly what was before her and even what this Court can see. The certificate of occupancy of Mr. Otitoju Bonte is dated 15th June, 1995 and Mr. Otitoju Bonte made an irrevocable power of attorney to plaintiff/respondent on 19th October, 2000. The 1st defendant/appellant claimed the unregistered agreement, Exhibit D between him and the Mohammed Kalgo whose source was and is still unknown and that agreement sometime in 1996 after Mr. Bonte’s certificate of occupancy, 1st appellant cannot be said to have acquired an interest earlier than that of respondent who by the power of attorney stepped into the shoes of Mr. Otitoju Bonte of an earlier title and from proper authority and source.
I am satisfied that the learned trial Judge made her decision and orders based on the evidence before her which weighted heavily in favour of the respondent. That is my answer to issue No. 5. There is no merit in this appeal, which I do not hesitate in dismissing. I do so dismiss
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the appeal. I affirm the decision and orders of the learned trial Judge. I award N5,000.00 as costs to the respondent.
Other Citations: (2005)LCN/1678(CA)
