Mrs. Hansine N. Donli V. Mallam Magaji Abdullahi & Ors(2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ATINUADE AKOMOLAFE-WILSON, J.C.A.(Delivering the Leading Judgment)

This is an appeal against two interlocutory decisions of Honorable Justice S. C Orji of the High Court of Federal Capital Territory Abuja delivered on 10th of November, 2011 and 3rd May 2012 respectively.

The 1st respondent as plaintiff claimed initially against the 1st – 3rd Defendants (now 2nd – 4th Respondents) by his amended statement of claim the following reliefs:

“a. A declaration that the purported revocation of the Plaintiff’s Certificate of Occupancy number FCT/ABI/KN.1202 (new number AN 10837 over Plot 268 Jabi District Abuja by the 1st Defendant (which revocation has not been communicated to the plaintiff) is null and void and of no effect whatsoever.

b. An order restoring the Plaintiff’s Certificate of Occupancy Number FCT/ABU/KN.1202 (new number An 10837) over all that parcel of land known and called Plot 268 Jabi District Abuja.

c. An order or perpetual injunction against the Defendants from disturbing the Plaintiff use, possession and quiet enjoyment of Plot 268 Jabi District Abuja and covered by Certificate of Occupancy Number FCT/ABU/KN.1302 with new number AN 10837.”

On 10th of March, 2008 an order for interlocutory injunction was granted in favour of the plaintiff (1st respondent) restraining the defendants acting by themselves or their servants, agents or privies and all persons claiming through them from taking possession, developing and/or exercising any right of ownership over the land in dispute pending the determination and leaving the substantive suit.

This order was pasted on the disputed land. The appellant to whom the 2nd and 3rd respondents had re-allocated the land after revoking the title of the 1st respondent, and who has been in possession since 25th of March 2006, brought an application, and was subsequently joined as 4th defendant to this action. The Appellant counter – claimed as follows:-

“1. A Declaration that the Revocation of the Plaintiffs rights in the disputed land is constitutional, since the Plaintiff failed to fulfill the terms and conditions for the grant of the revoked Certificate of Occupancy.

2. A Declaration that the grant of a Certificate of Occupancy to the 4th Defendant by the 1st Defendant is Lawful, Constitutional and in accordance with the interment of the Land Use Act the Plaintiff having breached the conditions for the grant.
3. An Order of perpetual injunction restraining the plaintiff and or his privies and assigns from interfering with the 4th Defendant’s possessory rights on the land.
4. The sum of 5 Million being general damages.
5. Costs of this action assessed as N1 Million.”

At the hearing the 1st respondent (plaintiff) testified as PW1 and called no further witness. The 2nd and 3rd respondents (1st, and 2nd defendants) called DW1 and DW2 to testify. DW1, one Mohammed Umar Gari, sought to tender the revocation letter, proof of service of the notice of revocation sent to the 1st respondent by DHL courier amongst other documents. The 1st respondent’s counsel objected to the tendering of the DHL courier on the basis that the DHL delivery note was served during the pendency of the case contrary to section 91(3) of the Evidence Act, as amended. This objection was overruled by the trial judge on the basis that section 91(3) (now S.83(3) cannot apply.

However, the trial judge held that the DHL delivering note was a copy and no foundation was laid by counsel to tender a copy but he neither rejected the document nor admit same. The document was thus left hanging in the air. DW2 testified as to the grounds of the revocation of the 1st respondent’s title on the ground of breach of conditions attached to the grant of the right of certificate of occupancy.

The Appellant (4th Defendant) as DW3 later sought to tender her certificate of occupancy as contained in her file, dated 16th May, 2007, among other documents. The 1st Respondent’s counsel objected on the basis that it was issued by the 2nd Respondent (1st Defendant) during the pendency of the suit contrary to section 91(3) of the Evidence Act (now section 83(3) of Evidence Act, as amended). The learned trial judge upheld the objection and rejected the Certificate of Occupancy and accordingly marked it as “rejected 2.” Being dissatisfied, the Appellant appealed against the said ruling by her notice of appeal dated and filed on 23rd of Monday 2011 (see pages 32 – 135 of the record of appeal).

After the close of the case, counsel to the 2nd and 3rd Respondents (1st and 2nd Defendants), who came into the matter midstream, brought an application for leave of the (trial court to amend paragraph 15 of their statement of defence dated 22nd October, 2008; re-open their case and call additional witness to tender the proof of DHL delivery note of the service of the notice of the revocation on the 1st respondent to enable court to properly admit same. All the other defendants did not oppose the application, but the plaintiff opposed it.

The learned trial court refused the application on the ground that “the document was not in the contemplation of the parties when the case was filed. The Appellant, piqued by the ruling of the court, filed the Notice of Appeal on 16/05/2004 (pages 166 – 170 of the Record of Appeal).