1

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT KUBWA

THIS THURSDAY, THE 13TH

DAY OF DECEMBER, 2012.

BEFORE: HON. JUSTICE Y. HALILU

SUIT NO: FCT/HC/CV/2019/11

BETWEEN:

MR. IKECHUKWU NWAMADI ................... PLAINTIFF

AND

1. THE CHAIRMAN BWARI AREA COUNCIL

2. BWARI AREA COUNCIL DEFENDANTS

3. EDWIN APOCHI

JUDGMENT

By a writ of summons filed on the 3rd

day of February, 2011, Plaintiff

claimed against the Defendant as follows:

1. An Order restraining the Defendants or their privies from

encroaching, taking over, trespassing into Plot 560 Gbazango

Bwari Area Council Abuja, pending the determination of this

matter.

2. An Order of the Honourable Court restraining the 1st and 2

nd

Defendants, their cronies, allies, privies, their affiliated bodies or

any other person(s) however described from issuing to the 3rd

2

Defendant or any other person(s) a certificate of occupancy in

respect of Plot 560 Gbazango, Bwari Area Council.

3. An Order mandating 1st and 2

nd Defendants and any other body

affiliated to it to fully process and issue the Plaintiff the certificate

of occupancy, same having been paid for by the Plaintiff.

4. N3,000,000.00 damages for the demolished structure and fence in

the plot of land.

5. N500,000.00 for inconveniences the Plaintiff suffered from the

Defendant for putting him through their actions/inactions.

6. Cost of this suit and the legal fees.

In support of the writ of summons, 14 paragraph statement of claim

was filed and an 18 paragraph witness statement on oath of the

Plaintiff was also filed.

1st and 2

nd Defendants were duly served and represented while the 3

rd

Defendant, though served through substituted means, his present in

Court could not be secured.

On receipt of the writ of summons, 1st and 2

nd Defendants filed 24

paragraph Statement of Defence and 24 paragraph witness statement

on oath of one Vincent Dodo, Staff of Zonal Land Office, Bwari Area

Council.

During the trial, Plaintiff testified for himself as PW1 and called one

other witness.

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It is the testimony of PW1 that some times in 1995, he was issued

Customary Right of Occupancy by the 2nd

Defendant via Abuja

Municipal Area Council Letter Headed Paper in respect of Plot 560

Gbazango, Bwari Area Council. PW1 tendered the said document

titled Conveyance of Provisional Approval dated 2nd

February, 1995

and it was admitted in evidence and marked exhibit “A”.

PW1 also averred that he also paid for the opening of the Policy File,

Documentation, Certification of Occupancy and Processing fees for

the Land Survey and Development. The said evidence of payments

with receipts Nos. 071513 and 071512 were tendered in evidence and

marked exhibits “B” and “C” respectively.

Plaintiff also tendered UBA deposit slip in respect of Regularisation

of policy documents in favour of AGIS. The said document was

admitted in evidence and marked exhibits “D”.

It is the testimony of PW1 further that after the issuance of the offer,

he secured the Plot of Land by fencing the land while he proceeds

with the processing of the Certificate of Occupancy.

That sometimes in 2006, he paid the necessary fees for recertification

and acknowledgment and a letter dated the 27th

day of June, 2007 was

issued him. The said letter, FCTA Regularization of Land Titles and

Documents of FCT Area Councils Acknowledgement was tendered in

evidence and marked Exhibit “E”.

4

Plaintiff also stated that at some points in time, he noticed that some

person(s) are trespassing and encroaching on the Plot of land and

therefore he wrote, through his lawyer, to Bwari Area Council. The

said letter in the letter headed paper of C. J. Okereke & Partners,

dated the 14th

day of November, 2008 and captioned ‘Re-

Encroachment on Plot No. 560 Gbazango Layout Kubwa Notice of

Encroachment’ was tendered in evidence and marked exhibit “F”.

Plaintiff stated further under examination-in-chief that at some point

in time, some persons claimed ownership of the Plot of land but with

the intervention of the Police, they all run away when they were

challenged to come forward with their offer letters.

Plaintiff testified that his offer letter was verified and confirmed as

genuine by one Musa Audu, Secretary Rural Land Use Adjudication

Committee.

However, it is the evidence of Plaintiff further that the Zonal Manager

replied him via a letter 27th

August, 2010 stating that after the

investigation carried out on the plot of land, it was discovered that

Plaintiff did not process the offer letter after he was issued same and

that one Mike Egbuna, who has earlier processed the land documents,

has changed the ownership of the land in favour of Edwin Apochi.

The copy of the said letter dated 27th

August, 2010 was tendered and

admitted in evidence and marked Exhibit “G”.

5

PW1 sought to tender Notice of Intention to sue Defendants dated the

9th

November, 2010. The said letter, having not being pleaded, was

admitted in evidence and marked Exhibit “I” rejected.

Under cross-examination, on whether Plaintiff carried out any

investigation on the land, he stated that he did not carry out any

investigation because he believed that the land is genuine.

PW1 stated that at the time he returned the Acknowledgement Letter

to Bwari Area Council, there was no any acknowledgement of such

receipt and he was not given receipt when policy file was opened.

On whether PW1 was aware that he needs building approval before

commencing work on the site, PW1 stated that he was aware but there

was no building approval.

Plaintiff reiterated the fact that the building was destroyed at DPC

level and the fence and that he does not know who destroyed the

structure.

Still under cross-examination, PW1 was asked to state the source of

his information that Mr. Rasaki submitted document on behalf of one

Engr. John with the name of Mike Egbunna and Edwin Apochi and he

responded that he was told by one Rasheed.

PW1 also denied knowing Musa Audu, the man who verified and

confirmed his letter of offer. Although, Plaintiff stated further that the

confirmation was done through one Alh. Ahmad.

6

PW1 could not produce anything to show that the letter is genuine as

demanded by Defendants’ counsel.

On the issue of the missing generator set in the building which was

destroyed at DPC level, PW1 stated he does not know how to answer

such question.

PW1 was not re-examined and as such, he was discharged.

On the 28th

July, 2011, Plaintiff was granted leave to file additional

witness statement on oath, consequently, counsel for the Plaintiff filed

additional 12 paragraph witness statement on oath of one Engr.

Samuel Eboh who was the Engineer that handled the Plaintiff’s

project at Plot 560, Gbazango, the subject matter of this suit.

On the 30th

day of September, 2011, Engr. Samuel Eboh testified as

PW2. He testified that he is a qualified builder with Ordinary National

Diploma in Building (Civil Works) with over 20 years of experience.

PW2 testified further that he was the one who supervised the fencing

of Plaintiff’s Plot of land at Gbazango at about 600m2 high

equivalents to five blocks height.

It is his testimony under examination-in-chief that sometimes in 2008,

he discovered that the fence and the units of one bedroom were

destroyed and Plaintiff reported the matter to Bwari Area Council.

Although, PW2 stated that they did not know who did the destruction

but averred that one Mr. Bankole and Mr. Rasaki who is a quantity

surveyor and a client to one Engineer John emerged, claiming

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ownership of the subject matter of this suit. That they were

apprehended by the Police and asked to produce their title documents

which they could not and subsequently, they flew away and never

seen again.

PW2 stated further that after a while, the said Mr. Rasaki resurfaced

with Labour workers and building materials to the site. That they

were again arrested by the Police and after interrogation they were

released on bail and asked to come at a later date for further inquiry

and investigation. That Mr Rasaki never showed up and has since

removed the building materials in the site and was never seen again.

Under Cross-examination, PW2 stated that he was in the Police

Station as alleged in paragraph 6 of his witness statement on oath and

on whether any body was living in the Two Units of One Bedroom

flat he erected, PW2 stated that no one was living in.

PW2 was asked whether he was in Court on the day the Plaintiff

(PW1) gave evidence and whether he remembered what the Plaintiff

told this Court. It was his response that he was in Court when PW1

gave evidence in respect of his case, however, he cannot remember

everything that was said by the Plaintiff.

PW2 also testified under cross-examination that he doesn’t know who

demolished the building and the fence and as to whether Plaintiff had

approval before commencing development, he doesn’t know.

8

PW2 also testified that he is a registered member of Chartered

Institute of Nigerian Builders Association and that he is a known

member of the Association.

PW2, when asked where he signed his statement on oath, he said in

the Court and he pointed at the Registrar’s Office.

On whether PW2 knows Mr. Bankole and Mr. Rasaki, he answered in

affirmative.

PW2 also testified under cross-examination that he wasn’t aware

whether Plaintiff conducted search on the Land and that he cannot

remember at what date and year he stopped work at the site.

On what makes an Engineer qualified as such, PW2 stated that the

works handled previously determined how qualified an Engineer is.

PW2 was not re-examined and he was discharged.

All effort by the Plaintiff to subpoen one Theresa Ade of the Nigerian

Police, Gbazango Police Station, Kubwa, Abuja to come and tender a

letter could not yield result as the DPO wrote this Court on the 25th

October, 2011 informing this Court that the said Theresa Ade has

been seriously sick and admitted at Samaritan Hospital, Suleja-Niger

State.

Consequent upon the above, Plaintiff, on the 16th

December, 2011

closed their case and the 27th

day of January, 2012 was fixed for

defence.

9

Learned counsel for the Plaintiff made frantic effort to reopen his case

and amend the statement of claim to align with the evidence already

given in this matter. Unfortunately, the Application was vehemently

opposed by the learned counsel to the 1st and 2

nd Defendants and

eventually refused by court.

On the above ground, the 12th

day of March, 2012 was fixed for

definite defence. On the said date, counsel for Defendants led in

evidence one Mr. Vincent Dodo, Staff of Zonal Land Office in charge

of Kubwa area in Bwari Area Council. He testified as DW1.

It is his testimony in-chief that from the investigation carried out on

Plot 560 Gbazango, Bwari Area Council about 600 square meters, the

name of Mr. Ikechukwu Kelechi Nwamadi was not on the list of

allotees and was not charted in the name of Mr. Ikechukwu Kelechi

Nwamadi.

DW1 testified that contrary to the averment contained in paragraph 4

of the Plaintiff’s statement of claim, receipts are issued for payments

made to the Council.

DW1 stated further under examination-in-chief that recertification

exercise was carried out in 2006 and the letter of complaint dated the

14th

November, 2008 was sent to the Zonal Manager, Bwari Area

Council and that 1st and 2

nd Defendants were not part of any

transaction with the police on this matter.

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DW1 also averred that 1st and 2

nd Defendants have no knowledge of

Mr. Bankole as alleged by the Plaintiff but admitted that the name of

Mike Egbuna was changed to Edwin Apochi.

It is the testimony of DW1 further that from their record, there is no

confirmation as alleged by Plaintiff and that where there is any, a

copy of such confirmed documents and the process must be recorded

in the file. DW1 stated further that investigation of Plots complained

are done officially and are documented.

DW1 stated that from the investigation carried out as a result of

Plaintiff’s letter of complaint, it was revealed that Plot No. 560

bearing Ikechukwu Kelechi Nwamadi as contained in the offer letter

was not found on the list of allotees. That the Cartographic unit has

confirmed that Plot 560 above was charted for Edwin Apochi and not

Mr. Ikechukwu Kelechi Nwamadi.

DW1 continued by saying that the TDP submitted by Mr. Ikechukwu

Kelechi Nwamadi, from their record and the policy file vide file No.

EN-765 and file No. BN-404 was confirmed forged by the

Cartographic Section. That the name of allotee bearing Mike Egbuna

later changed ownership to Edwin Apochi is the one in their records

and was duly processed.

DW1 tendered a letter of complaint on encroachment of Plot 560,

Gbazango Layout, Kubwa dated the 14th

day of November, 2008

which was addressed to the Zonal Manager, Bwari Area Council,

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Abuja and attached the following documents as submitted by the

Plaintiff along with the complaint letter:

(1) Conveyance of Provisional Approval of Plot No. 560 of about

600m2 at Gbazango Layout dated 2

nd day of February, 1995 in

the name of Ikechukwu Kelechi Nwamadi,

(2) Federal Capital Territory Administration regularisation of land

Titles with Documents of FCT Area Council Acknowledgement

dated the 27th

day of May 2007 with file No. 765.

(3) Photocopies of receipts and a Deposit slip

(4) Right Occupancy No FCT/BZTP/LA granted to Ikechukwu

Kelechi.

The said letter was admitted in evidence and marked exhibit “DA”.

DW1 also tendered Investigation Report on Plot 560, Gbazango

Layout of about 600m2 dated 29

th June, 2011. The said letter was

admitted in evidence and marked Exhibit “DB”.

DW1 states the particulars of forgery as followed: that the TDP

submitted was not signed by the Zonal Land Surveyor and same did

not emanate from the Zonal Land Office.

It is the testimony of DW1 that 1st and 2

nd Defendants did not collude

with 3rd

Defendant or with any person whatsoever in respect of plot

560 or any other plot and that the reply written to the plaintiff and the

investigation on the said plot of land in question was done officially

in discharge of his duty.

12

DW1 stated that 1st and 2

nd Defendants denied paragraphs 16, 17, 18,

19, 20 and 21 (1), (2), (3), (4), (5), (6) and (7) of Plaintiff’s statement

of claim and stated that Plaintiff is not entitled to any of the claims

stated in the claims for the reason above sated which emanated from

the official records.

Under cross-examination, learned counsel reminded DW1 of the

implication of telling lies before this court which he said could lead to

imprisonment.

DW1 testified under cross-examination as follows, that he is a level

08 officer and a district officer of Kubwa in charge of designing

layout and site reports and also represent the Zonal Officer in case of

any land matter.

On whether he was the one was conducted investigation of this

subject matter, DW1 said no, that it was one Umeza Rasheed

(deceased) who carried out the investigation as he was the district

officer then. That the said Umeza died in 2010.

DW1 was asked to tell the Court how lands are acquired at the Area

Council and this is what he has to say, “you apply with a non-

refundable deposit of N100,000.00, filed and return form wherein you

shall be allocated plot of land if you are lucky, by issuance of an offer

letter”. He continued by saying, “if you were issued letter of

allocation, you have succeeded but you must continue with process of

documentation.”

13

Other things to be done as stated by DW1 include the registration of

the land by payment of certain amount of money.

DW1 sated under cross-examination that what prompted the

investigation was the letter of Complaint brought through C. J.

Okereke & Partners.

DW1 was asked to tell the Court the process of resolving complaints

of this nature as regard the Plaintiff’s case and he states as follows,

“we resolve the issue by asking for the complaint’s land documents,

confirm the validity among others by confirming the TDP from our

Cartographic Office wherein a policy file shall be required from

Abuja Geographic Information System, AGIS in respect of the Plot in

question before a site officer shall be sent to the site to write the

report for proper verification.

DW1 stated that Policy files are opened after registration of the land

with Area Council and they are kept in AGIS.

On how DW1 knows that Edwin Apochi is the owner of the Plot in

dispute, DW1 stated that the name was contained on the list of

allotees with duly signed TDP which was charted in Cartographic

office. That the name was also contained on the Policy file at AGIS

and his documents are good documents.

DW1 stated further under cross-examination that the Cartographic

Office draws the TDP and prints it. On whether any party can produce

TDP, DW1 stated that he doesn’t know.

14

DW1 also stated that Mr. Apochi produce TDP before the

investigation was carried out and that it is not possible for a Plot of

Land to have two files.

DW1 also testified under cross-examination that it is the Revenue

Office that can warrant issuance of receipt of Bwari Area Council in

respect of land matters and that such receipts cannot be issued without

confirming the genuiness of the transaction. DW1 also stated that

receipts are not issued indiscriminately.

DW1, still under cross-examination testified that he has two years of

experience and on whether he has ever notice the fact that Policy Files

get missing, he said the Area Council do not keep Policy Files but

AGIS and he doesn’t know of any case of missing file at AGIS. DW1

also stated that nobody has ever complaint of missing Policy File.

Learned counsel for the Plaintiff asked whether DW1 knows him as a

Lawyer in this Jurisdiction and he said, ‘yes’ and whether DW1

knows he has a complaint on Policy file, DW1 said, ‘not a Policy File,

it was the case file and that he was asked to visit a site and report and

he did report.

DW1 was not re-examined, therefore he was discharged and that was

the case of the 1st and 2

nd Defendants. Consequently, the suit was

adjourned to 18th

day of May, 2012 and subsequently, to the 14th

day

of June, 2012 for adoption of final written addresses.

15

In compliance with the order of this Court, learned counsel for the 1st

& 2nd

Defendants filed their final written address on the 30th

day of

March, 2012. On receipt of the 1st & 2

nd Defendants’ final written

address, learned counsel for the Plaintiff filed on the 11th

day of May,

2012. It was adopted on the 14th

day of May, 2012.

Learned counsel for the Plaintiff formulated the following issues for

determination:

1. Whether the Plaintiff has proved his case in respect of Title and

possession of the land the subject matter of this case.

2. Whether there was establishment of fraud against the Plaintiff

by the Defendants in this civil matter.

3. Whether the non joinder of a party can vitiate the case of the

Plaintiff where he has a right.

4. Whether the Plaintiff is entitled to his claim against the

Defendants.

On issue 1, i.e., whether the Plaintiff has proved his case in respect

of title and possession of the land the subject matter of this case, it is

the submission of learned council for the Plaintiff that Plaintiff has

proved his case on a balance of probability in accordance with

Evidence Act 2011. This is because, as learned counsel stated, the

three elementary components of a valid contract were present in the

transaction of the Plaintiff with the 1st and 2

nd Defendants. Thus, there

was offer, qualified acceptance and consideration.

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Learned counsel submitted that it is common principle of law that

where a party testifies on material points, (in this view), the offer of

land and evidence of payment as acceptance and consideration, the

Defendant ought to cross-examine him, to show that his testimony is

untrue. Where in this case this was not done, the Court would readily

conclude that the adverse party, in this case, the Plaintiff will be

entitled to judgement since his evidence remained uncontradicted by

the Defence.

He argued further that Defendant never denied the receipt was not

issued by it. He submitted and urged the Court to act positively on the

evidence and hold that the Plaintiff has proved his case against the

Defendant in respect of the offer, acceptance and consideration. The

case of OMOREGBE vs D.P. LAWANI (1980) S.C. 108 P117 was

cited.

It is the contention of counsel that Defendant could not call any

witness to testify to the effect that carto unit confirmed that Plot 560

was charted in favour of Edwin Apochi as alleged in the their

Statement of Defence and that the law is clear that he who asserts

must prove. He argued further that there was no document to prove

the above assertion, not even a copy of the offer letter or the

purported TDP charted in favour of the 3rd

Defendant or in favour of

any other person.

Counsel urged the Court to discountenance this line of argument and

hold that Plaintiff has proved his case on preponderance of evidence.

17

On Issue 2, i.e., whether there was establishment of fraud (forgery)

against the Plaintiff by the Defendants in this civil matter, it is the

contention of learned counsel for the Plaintiff that the issue of fraud is

a mere allegation that were not proved nor substantiated, and that it is

well known that files are numbered in accordance with the offerees

state letters and EN represents Enugu, while BN represents Benue

State. The Plaintiff is from Owerri, Imo State and could not be given a

TDP with Enugu or Benue State number.

Counsel contended that it is clear and unequivocal that the Plaintiff

mentioned in its letter to the Defendants through its lawyer, the

documents he relies on to make his claims to the land and such

documents he mentioned in the letter, he also pleaded in the statement

of claim and also testified on. Counsel also stated that DW1, under

cross-examination rightly stated that TDP’s cannot be made by

offerees but by the offerors i.e. the 2nd

Defendant. Hence, in his view,

the defence is contradicting itself.

Counsel respectfully submitted that it is settled law that, he who

asserts must prove. The onus of a party alleging fraud as in this case

of forgery, is even greater than what is required in civil. He relied on

the case of OLALOMI VS NIG. INDUSTRIAL DEVELOPMENT

BANK (2009) M.J.S.C. PAGE 136 AT 154 where it was held that

fraud requires a high degree of probability in its proof. Allegation of

fraud must be proved beyond reasonable doubt. It requires proof in

the realm of probability not fantastic probability. See also GEORGE

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VS DOMINION FLOOR MILLS LTD (1963) ALL N.L.R 70,

OMOBORIOWO VS AJASIN (1984) 1. S.C.N.L; AINA VS

JINADU (1992) 4 N.W.L.R Pt. 233 PAGE 91.

Learned counsel submitted that no particulars were pleaded/proved

for or in support of the allegation of connivance, collusion or fraud

against the Plaintiff with the Cartographic unit where the Defendants

insinuates the forgery occurred. Reliance was placed on the case of

ANYANWU VS UZOWUAKA (2009) 7 M.J.S.C PART 1 PAGE 1

AT 29, PARA A-B.

Learned counsel for the Plaintiff contended that the point being made

here is that the Defendant palpably failed to ventilate evidence before

this Court in proof of its allegation of forgery which is fraud, making

a heavy weather on the issue of TDP which was not pleaded by the

Plaintiff in an attempt to impute fraud on the Plaintiff’s transaction

with the Defendants. These, as he said, are mere conjectures which

cannot take the place of admissible and persuasive evidence.

Counsel also stated that Plaintiff was not offered an opportunity to

cross-examine anybody from Cartographic unit on the alleged

questionable dealing that this allegation is spurious, and not proved.

On Issue 3, whether the non joinder of a party can vitiate the case

of the Plaintiff where he has a right, counsel for the Plaintiff

submitted that non-joinder of the Minister of F.C.T does not vitiate

this action against the Defendants since there has been established a

19

right of the Plaintiff which has been infringed upon, and that if the

Minister must necessarily be before the court, the Defendants or the

court can suo motu order his appearance/being made a party in this

suit.

Again, counsel submitted that 1st and 2

nd Defendants have not denied

being proper parties in this suit, and that there are evidences of

transactions by the Plaintiff with the 2nd

Defendant and to strengthen

that, DW1, under cross examination stated that the 2nd

Defendant does

not issue its receipt indiscriminately. Thereby, as stated by learned

counsel for the Plaintiff, confirming the fact that, the receipts issued

to the Plaintiff by the 2nd

Defendant were for a genuine transaction.

Counsel contended further that the law is that only a party to a

contract can sue or be sued, therefore, it is the duty of the Defendant

who believes that it has a principal to join the said Principal in an

action against it, if it has acted for or on its behalf. Counsel referred to

Order 10 Rules 5 (1) of The High Court Civil Procedure Rules FCT

Abuja 2004 which states; “Where it appears to a Court, at or before

the hearing, that all persons possibly interested in the suit have not

been made parties, the Court may adjourn and direct that those be

made either Plaintiffs or Defendants in the suit.”

And Order 10 Rules 3 (2) which states; “Judgement may be given

against any one or more Defendants according to their respective

liabilities.”

20

Flowing from the above, counsel submitted that no cause or matter

shall be defeated by reason of misjoinder or non-joinder of parties.

The case of IYERE VS B.F & F.M LTD (2008) 12 M.J.S.C Page

128 Paragraphs B-C was relied upon.

Counsel urged the Court to hold that Defendants ought to join the

Minister or any other party that are necessary in this matter.

On issue 4, whether the Plaintiff is entitled to his claim against the

Defendants, Learned Counsel for the Plaintiff submitted that Plaintiff

has proved before this Court that he was given an offer in respect of

the subject matter of this suit. He has also proved that he paid for the

processing of the subject matter through the receipts tendered and

admitted in evidence. That he tendered the evidence of recertification

of the documents of the land before Abuja Geographic Information

Systems. That none of these facts and evidence has been controverted.

That he has also given evidence which was corroborated to show that

he has started development on the land. That the duty of charting the

TDP and issuance of necessary title documents rests on the

Defendants.

On the issue raised by the Defendants that it is the law that before

buildings are erected, there must be an approved plan, counsel stated

that that is erroneous and goes to no issue as there is no law backing

that.

21

On the issue of PW2 being in Court as at the time PW1 testified,

learned counsel submitted that that should be discountenanced as

PW2 was never a witness at the time PW1 testified.

Counsel also submitted that it does not lie in the mouth of the

Defendants to say that Plaintiff must have fallen in the hands of dupes

as the Court does not act on such speculations.

Learned counsel submitted further that the law is that a person in

possession of a property is the owner until the contrary is proved. The

burden of proof, as he said, rests on the party asserting that the

possessor is not the owner. The case of UDE VS NWARA (1993) 2

N.W.L.R PART 278 relied upon.

Learned Counsel for the Plaintiff stated further Defendants have not

been able to prove the fact that Plaintiff is not the owner of the plot he

has been in possession. Counsel cited Section 134 of the Evidence

Act 2011 which provides; “When the question is whether any person

is the owner of anything of which he is shown to be in possession,

the burden of proving that he is not the owner is on the person who

affirms that he is not the owner”

In conclusion, learned counsel for the Plaintiff submitted that Plaintiff

has established sufficient evidence in proof of his case, and he urged

the Court to accordingly award the Plaintiff his claims.

22

On the part of 1st and 2

nd Defendants, 19 pages Final Written

Address was filed and learned counsel for the 1st and 2

nd Defendants

formulated the following issues:-

1. Whether the Plaintiff is in any way entitle to his claim against

the 1st Defendant.

2. Whether the Plaintiff is entitled to his claim against the 2nd

Defendant.

3. Whether the Plaintiff has proved his case to entitle him to his

claim.

Arguing issue 1 above, learned counsel for Defendants submitted that

1st Defendant is the Chairman of Bwari Area Council and has no

connection to this matter. That Exhibit “A” which is the Conveyance

of Provisional Approval was not signed by the Chairman of Bwari

Area Council rather purportedly signed by Musa Audu, a staff of

FCDA who as at 1995 was the Zonal Land Manager and the Secretary

of the Rural Land Use adjudication Committee. Counsel referred to 1st

paragraph of Exhibit “A” which reads thus:- “I am pleased to convey,

the chairman, caretaker committees approval of a customary right

of occupancy.”

Counsel submitted further that as at 1995, the Committee comprising

of the Chairman, Secretary and other members which was known as

Rural Land Use Adjudication Committee had the Zonal Land

Manager of that particular Area Council where the land is situated as

23

the secretary. In the instant case, as stated by counsel for Defendants,

the Conveyance letter was signed by the Zonal land manager i.e.

Secretary of that Committee and that The Zonal Land Manager is a

staff of the FCDA (Federal Capital Development Authority).

Counsel contended further that FCDA was not joined by the Plaintiff

as a party to this suit, neither was the Minister of the FCTA (Federal

Capital Territory Administration) made a party. Counsel also stated

that Exhibit “D”, which is the UBA teller (Deposit Slip) is a purported

deposit of some money paid to the Account of Abuja Geographic

Information Systems and same purportedly stamped by Abuja

Geographic Information Systems, and that Exhibit “E” which is the

purported acknowledgment was issued by AGIS.

Exhibit “F” which is the letter written by the Plaintiff via his lawyer

was addressed to the Zonal Manager, Bwari Area Council and copied

to the Director land, Recertification Office, Area 11, Garki, Abuja.

Learned counsel submitted that the only document that amanated

from Bwari Area Council are Exhibit “B” and “C” which are receipts.

Counsel referred this Court to all the above mentioned Exhibits and

submitted that Exhibit “B” is a payment of N10,000 Certificate of

Occupancy and Exhibit “C” is N6,500 payment for processing.

Counsel submitted that Bwari Area Council is constitutionally

permitted to collect revenue from all transactions made within its

jurisdiction except where expressly provided for.

24

Furthermore, counsel submitted that payments made in respect of

lands are made upon presentation of a photocopy of offer letter i.e.

(Conveyance of Provisional Approval) simplicita. Counsel drew the

attention of the Court to the evidence of DW1 where Plaintiff’s

counsel, upon cross examination, asked whether payment made in

respect of lands is an evidence of genuinety and that DW1 answered

No.

Therefore, counsel contended that Exhibit “B” and “C” were simply

payment (revenue) made by the Plaintiff upon presentation of the

offer letter without any confirmation. Counsel submitted further that

the revenue office of the 1st Defendant is a different office from that

of the zonal lands as such, payments made to the Revenue

Department of the 1st Defendant Office does not and cannot confer

genuinety of title to the Plaintiff.

Counsel argued further that from the totality of the Plaintiff’s

Statement of Claim, 1st Defendant is no where mentioned. The

transactions carried out by the Plaintiff were all between the Plaintiff

and the Zonal Land Manager and AGIS. Reference was made to

Exhibits “A”, “D”, “E”, “F” and “G”, and that 1st Defendant was

never a party to the purported transactions made by the Plaintiff.

Counsel also referred to paragraphs 1 - 20 of the Plaintiff’s Statement

of Claim.

25

Counsel therefore submitted that this matter does not bother the 1st

Defendant. The case of Ojoh .V. Kamalu, 2LNSCQR pg. 300 was

cited where Niki Tobi, JSC held that:

“The law is elementary that it is not the function of a Court to

instigate parties to litigate on issues that do not bother them.”

Learned Counsel submitted that the totality of the Plaintiff’s case does

not in any way bother the 1st Defendant therefore, Plaintiff’s case

against 1st Defendant must failed.

On Plaintiff’s claim 1 against the 1st Defendant, learned counsel for

the Defendants submitted that the said land have been in possession of

the 1st Defendant, neither has the 1

st Defendant trespassed on the said

land till date. That Plaintiff has not shown this Court that 1st

Defendant is in possession or has ever accosted him on the said land.

Counsel argued further that Plaintiff in evidence admitted that the

reason why he brought 1st and 2

nd Defendants to Court is because of

Exhibit “G” which is the letter from the 2nd

Defendant, Zonal Land

Office.

It is the contention of learned counsel for the Defendants that 2nd

Defendant is the Zonal Land Office of FCDA which completely

different office from the 1st Defendant.

Counsel submitted therefore that 1st Defendant is nowhere mentioned

even in Exhibit “G”, therefore, Plaintiff is not entitle to any relief

from the 1st Defendant.

26

On Plaintiff’s second claim, counsel submitted that 1st Defendant

cannot issue Certificate of Occupancy as issuance of Certificate of

Occupancy is handled by AGIS.

On claim 3, counsel submitted that 1st Defendant is not in the position

to process and issue Certificate of Occupancy, the office in charge is

the Zonal land office which is a different office.

On claim 4, learned counsel for the Defendants submitted that there is

no connection whatsoever between the Plaintiff and 1st Defendant and

they reiterated the fact that 1st Defendant is completely different from

the Zonal Planning Office. Counsel further submitted that paragraph 2

of Exhibit “G” which reads as follows:

“Please be informed that the Zonal Planning Office has gone

through all its records and policy file received from AGIS has

revealed that” shows that the office of the Zonal Land Manager is a

Zonal Land Office of FCDA in Bwari Area as such, transactions

made with that office cannot and should not be treated as being made

with the 1st Defendant. Exhibit “G” and “F” was referred to and urged

the Court to so hold.

On Plaintiff’s claims 5, 6 and 7, learned counsel for the Defendants

submitted that plaintiff is not entitled to these claim as same is

frivolous. The case of DADA VS. DOSUNMU 27, NSCQR 518

where Niki Tobi JSC held that “the role of the Court is to apply the

principle of substantial justice according to law.”

27

Counsel submitted that, it is trite law that he who asserts must proof.

In the instant case, Plaintiff has failed to proof that he is entitled to

these claims from the 1st Defendant, and that no contract whatsoever

was carried out between the Plaintiff and 1st Defendant. The claim is

rather a misplacement of claim and such is frivolous and urged the

Court to so hold and dismiss the claim against 1st Defendant. Counsel

relied on the case of BANI HARUNA .V. MODOBBO (2006) EPR

719-720 where it was held that “the principle has long been

established that no one is punished for the crime of another”

Counsel submitted further that it is one thing to claim a relief and

another to prove it. The case of SKYE BANK .V. AKINPELU (2010)

42 NSCQR4 527 was relied upon.

On issue 2, whether Plaintiff is entitled to his claim against the 2nd

Defendant, learned counsel for the Defendants contended that it is

trite that he who asserts must prove. That Plaintiff is

asserting/claiming that 2nd

Defendant connived with the Plaintiff’s

adversaries and is trying to deprive the plaintiff his title as alleged in

paragraphs 8 and 9 of Statement of Claim.

However, Counsel for the Defendant, stated that, Plaintiff in evidence

admitted he has brought the 1st and 2

nd Defendants to Court because

of Exhibit “G”.

Counsel submitted that the reply i.e. Exhibit “G” is simply a reply to a

complaint of the Plaintiff after due investigation from the list of

28

allotees, the Cartographic Unit and the Policy file from AGIS.

Counsel referred this Court to Exhibit “F”, “G”, “DA” and “DB”.

That 2nd

Defendant simply related what is on record to the Plaintiff.

Counsel stated further that Plaintiff also admitted that he did not

conduct a search on the plot before or after he was given the

purported letter i.e. Exhibit “A” “Conveyance of Provisional

Approval neither did he conduct any search at all, until 2nd

Defendant wrote him i.e Exhibit “G”.

Counsel reiterated the fact that the said conveyance in the name of the

Plaintiff is not on the list of allottees from the records, neither is it

charted in his name and there is no building plan approval. That

Plaintiff merely attached an unsigned building plan to his letter to the

2nd

Defendant i.e Exhibit “D1”

Counsel for the Defendants submitted that 2nd

Defendant did not

collude with any person to deprive the Plaintiff any title and that 2nd

Defendant was not a party to the matter when the Plaintiff reported

his adversaries to the police.

On issue 3, whether the plaintiff has proved his case to entitle him to

his claim, Counsel submitted that, Plaintiff has failed to prove his case

to entitle him to his claims. This is because, as stated by counsel for

the Defendants that Plaintiff in evidence admitted he has never

conducted a search on the plot in issue, and that he has failed to

present the acceptance form as alleged in Paragraph 3 of Plaintiff’s

29

Statement of Claim. That Plaintiff has failed to tell or show this

Honourable Court where he made the payment as alleged in

paragraph 4 of his Statement of Claim and to whom the payment was

made to for such a fundamental purpose and was not receipted for.

Counsel submitted that AGIS is the office that opens Policy Files and

there is always evidence of payment for opening Policy File, and that

Plaintiff must have fallen to the hands of dups.

Learned counsel for the Defendants contended that in paragraph 5 and

7 of Plaintiff’s Statement of Claim, Plaintiff avers that after the

purported payment that was not receipted for, he fence the plot.

However, counsel stated that in paragraph 7 of Plaintiff’s Claim,

Plaintiff averred that in 2008 some people encroached and destroyed

the fence and the 2 units of one bedroom flat erected up to lintel level.

Counsel submitted that Plaintiff have not shown this Honourable

Court any evidence of such destruction of fence, however assuming

but not conceding that he build a fence and a 2 units of one bedroom

flat, counsel submitted that Plaintiff have not presented any

documented evidence or pictures to show that there was a demolition.

Furthermore, Counsel submitted that Plaintiff have admitted in

evidence upon cross examination that he did not obtain any building

approval before erecting the fence and the 2 units of one bedroom flat

build to DPC level.

30

Flowing from above, counsel for the Defendants submitted that the

law is settled that before any development is made, the developer

must obtain a building plan.

On the issue of confirmation of the offer letter by one Musa Audu,

learned counsel submitted that Plaintiff has admitted that he does not

know Musa Audu, and that Plaintiff failed to show and or tell this

Court who took the said offer to Musa Audu and where Musa Audu

wrote and signed ‘confirmed’ on his offer or any other document at

all. That it is a mere assertion and this Court is a Court of law and

record which is bound by evidence presented to her. Therefore,

counsel submitted that in the instant case, no evidence whatsoever is

before this court to make this Court act on the above fact.

On the issue of Generator set alleged missing in the demolished

structure by the Plaintiff, Counsel for the Defendants submitted that in

evidence, Plaintiff admitted that nobody had ever lived in Plot 560

neither was anyone staying in the Plot of land. Counsel also stated

that when Plaintiff was asked how his generating set got missing in

the house that was just at DPC level, he said he does not know how to

answer that question.

Counsel submitted that this averment is vexatious, therefore, counsel

urged the Court to dismiss same.

On the claim of Plaintiff that he suffers high blood pressure and that

he paid N600,000.00 professional fees, learned counsel submitted

31

that this two claims have been abandoned by the Plaintiff. This is

because, as stated by learned counsel for the Defendants, Plaintiff did

not mention this fact anywhere in his statement on oath neither did he

show any other evidence with regards to these assertions.

Counsel submitted, from the above, that facts pleaded but not adduced

in evidence are deemed abandoned. Counsel referred to the case of

case of BUHARI & ORS VS OBANSANJO & ORS (2004) IEPR

153 where A. I IGUH, JSC held that “the law is settled that where

counsel proffered no argument on any issue before the court, such

issue must be deemed as having been abandoned”. Counsel urged

the Court to so hold.

Counsel submitted that from the totality of the Plaintiff’s case,

Plaintiff have failed to prove that he is entitled to his claims.

It is the contention of learned counsel for the 1st and 2

nd Defendants

that the evidence of PW2 be expunged from the record of the Court

having admitted in evidence that he was in Court when PW1 gave

evidence and heard all the testimony and cross examination of PW1.

Counsel submitted further that the law is that when a witness is giving

evidence in Court, all other witness must be out of Court and out of

hearing.

In conclusion, counsel for the Defendants submitted that it is

elementary law that Plaintiff must succeed on the strength of his case

32

and not on the weakness of the Defendant. Counsel urged the Court to

dismiss this case against the 1st and 2

nd Defendants.

Permit me to state that learned counsel for the 1st and 2

nd Defendants

filed reply on point of law to plaintiff’s final written address and they

reacted as follow:

1. In response to paragraph 9 of Plaintiff’s summary of facts,

counsel submitted that public officers are bound by the civil

service rules and official records which are public documents.

See section 109 of the Evidence Act.

2. In response to paragraph 12 of Plaintiff’s summary of facts,

counsel submitted that it is not the duty of the 1st and 2

nd

Defendant to know the address of the 3rd

Defendant, it is the

duty of the Plaintiff to ensure that parties are served. That the

purpose of the substituted service as provided in Order 11 of the

Rules of Court is to ensure that parties are served but where the

address is not known the aim of the service which is to come

and defend has been defeated.

3. In response to paragraph 13 of the summary of facts, submitted

that 1st and 2

nd Defendant proved his case by calling a witness

and tendered documents.

4. In response to facts distilled from pleading as presented by the

Plaintiff, counsel submitted that investigations were carried out

from their records and the policy file.

33

5. Contrary to what was contained in the Plaintiff’s evidence as

presented, learned counsel for the 1st and 2

nd Defendant stated

that It was never pleaded that Bwari Area Council was invited

and they failed to show up, therefore learned counsel for the

Plaintiff cannot, in his address aver that 2nd

Defendant was

invited and they never showed up. Counsel referred to W.S.N.

ONNOGHEN JSC, in the case of ADEKEYE VS ADESINA

(2010) 44 NSCAR 490 also in the words of A.M MUKHTAR,

JSC where he stated that the law is settled that evidence on

facts not pleaded should be ignored, as they go to no issue.

Learned counsel for the 1st and 2

nd Defendants urged the Court to

ignore the submission of the Plaintiff above.

In response to argument of learned Counsel for the Plaintiff on issue

one, counsel for the Plaintiff submitted that the ingredients of a valid

contract is not present in this matter, as such the issue of contract

cannot arise here, that Plaintiff have not told this court that he bought

the land from the Bwari Area Council. Counsel referred to the

evidence of DW1 upon cross examination by the Plaintiff wherein

DW1 further explained the procedure and what is expected of a

person who has an offer of allocation. That the offer letter alone is not

a genuine title, it must be duly registered.

On the issue of forgery, counsel submitted that 1st and 2

nd Defendant

called a witness from the same office who is the district officer and

34

whose schedule is to handle complaints, visit site, investigate and

represent the Zonal Land Manager in Court.

Learned Counsel for the 1st and 2

nd Defendants contended further that

Plaintiff’s submission that 1st and 2

nd Defendant ought to subpoen an

officer from the Cartographic unit is rather a misplacement of fact and

law.

On issue 3, Counsel submitted that Plaintiff must success on the

strength of his case not on the weakness of the Defendant, see NEPA

VS INAMETI (2002)11 NWLR (pt. 778) 39.

On issue 4, Counsel referred to Section 7 of the FCT Act, 2004 which

provides as follows;

S. 7 “Development without authority’s approval is prohibited.

(1) As from the commencement of this Act, no person or body

shall within the Federal Capital Territory, carry out any

development within the meaning of this Act unless the written

approval of the authority has been obtained by such person or

body;

Provided that the authority may make a general order with

respect to the interim development of the land within the Federal

Capital Territory and may make special orders with respect to

the interim development of any portion of land within the

particular area.

35

(2) The authority shall have power to require every person who

otherwise than in pursuance of an approval granted or order

made under subsection(1) of this section proceeds with or does

any work preformed and reinstate the land or where applicable,

the building, in the condition in which it was before the

commencement of such work, and in the event of any failure on

the part of any such person to comply with any such

requirement, the authority shall cause the necessary work to be

carried out and may recover the expenses thereof from such

person as a debt.

Counsel submitted that it is mandatory for anybody carrying out

development of any land to first obtain an approval from the Minister

of FCT.

Counsel referred to the case of UBA PLC VS SAMBA PET. CO.

LTD (2002) 16 NWLR (pt. 793) 361 at 401 paragraph F-G, where it

was held that;

“Damages due to the legitimate exercise of a right is not

actionable, even if the actor contemplated the damages, it is

damnum obseque injuria (i.e losee without wrong). The

damage must be attributed to the breach by the Defendant of

some duty owing to the Plaintiff”.

Counsel submitted that though Plaintiff’s house was not demolished

by the 1st and 2

nd Defendant, neither has the Plaintiff pleaded same

36

only to be asking for damages, therefore, counsel submitted that

whatever building whatsoever that was demolished is a loss without

wrong because Plaintiff never obtained an approval to develop the

land.

Reference was made to the case of DANTOSHO VS MOHAMMED

(2003)6 NWLR (pt. 817)457 at 488 paragraph F-G, where it was

held that “that it is not enough that the right of the owner or person

in exclusive possession was invade. It is settled principle of law that

where a person who initially entered upon land lawfully or pursuant

to an authority given by the true owner, or person in possession

subsequently abuses his position or that authority he becomes a

trespasser abinitio, his conduct relating back so as to make his

initial entry trespass.”

Finally, learned counsel for the 1st and 2

nd Defendants submitted that

Plaintiff have only shown this Court he is a trespasser. Counsel urged

the Court to hold and dismiss the claim of the Plaintiff against 1st and

2nd

Defendants.

I have gone through the reliefs sought by Plaintiff against the

Defendants and the evidence alluded in aid of the claim, on one part,

and the defence of the 1st and 2

nd Defendants and the corresponding

evidence in aid of their defence on the other part.

The issue, whether Plaintiff has made out a case of ownership based

on possession, has been formulated for determination by this court.

37

In summary, the case of the Plaintiff against the Defendants is that he

was issued customary right of occupancy in 1995 over plot 560

Gbazango, Bwari Area Council, on the headed paper of AMAC,

which he duly accepted whereof he paid for policy file

documentation, certificate of occupancy and processing fee for the

survey and development of the said land, which was later forced by

Plaintiff.

It is the case of Plaintiff that in 2008, he notice trespassers on the said

land in the persons of Mssrs Bankole and at a later time Rasaki, a

quantity surveyor, who claimed to be working for one Engr. John who

also claimed he had the land. Eventually, they all left after Plaintiff

reported the trespass to police.

Eventually, Plaintiff’s counsel wrote a letter to the Zonal Manager of

the 1st and 2

nd Defendants to save him from trespassers to his land in

2010, November, 14th

.

The Zonal Manager’s response to Plaintiff’s letter aforementioned,

was to the effect that the land in issue belonged to one Edwin Apochi

in view of the change of ownership made by Mike Egbuna in his

favour.

Plaintiff who did not find the response well, later filed this action in

court as per his writ of summons.

In the cause of hearing, Plaintiff who pleaded and frontloaded

documents, tendered the following documents as Exhibits “A”, “B”,

38

“C”, “D”, “E”, “F”, “G”, “H” and “I” (rejected) in evidence through

the Plaintiff himself.

a) Abuja Municipal Area Council letter of conveyance of principal

approval dated the 2nd

February, 1995.

b) Bwari Area Council receipts nos. 071513 and 071512 issued one

Ikechukwu Kelechi Nwamadi dated the 16th

August, 2006.

c) United Bank of Africa deposit slip dated the 19th

December,

2006.

d) Regularization acknowledgment letter issued by FCTA dated

the 27th

June, 2007.

e) Letter on letter headed paper of CJ Okerke & Partners dated the

14th

day of November, 2008.

f) Letter from Bwari Area Council dated the 27th

day of August,

2010 to C.J Okerke & Partners.

g) Letter by C.J Okereker & Partners to Chairman Bwari Area

Council dated the 1st day of November, 2010.

h) Another letter by CJ Okereke & Partners to Chairman Bwari

Area Council dated the 1st day of November, 2010..

On the part of the 1st and 2

nd Defendants, their defence to the claim of

the Plaintiff as contained on the writ of summons filed on the 8th

February, 2011 is that they do not have any official records of

39

Ikechukwu Kelechi Nwamadi as the bonafide allottee of plot 560

Gbazango layout, Kubwa.

It is further the defence of 1st and 2

nd Defendants that their

cartographic department charted the said plot in favour of one Edwin

Apochi and not Ikechukwu Kelechi Nwamadi, the Plaintiff, in this

suit. 1st and 2

nd Defendants also maintained that the change of

ownership between Mike Egbuna and Edwin Apochi was duly

processed and is on the record of Bwari Area Council.

1st and 2

nd Defendants equally maintained that the TDP submitted by

Plaintiff to Bwari Area Council lands department was confirmed

forged, see paragraph 19 of 1st and 2

nd Defendants’ statement of

defence. 1st and 2

nd Defendants led in evidence a sole witness in the

person of Vincent Dodo, who tendered letter dated the 14th

day of

November, 2008 written by C.J Okereke & Partners and another

document, captured, investigation report on plot 560 Gbagango layout

of about 600m2, dated the 29th

June, 2011 which were admitted and

marked Exhibits “DA” and “DB” respectively.

Permit me at this juncture to observe that in law, prove of grant is not

the same with proof of title.

Proof of grant is one of the five ways of proving title to land.

See IDUDUN VS OLUMAGBA (1970) 9 – 10 SC 246.

Therefore he who relies on documents of grant to prove title must not

stop at the production of the document stage, but shall proceed to

40

plead and prove same by evidence unless such a title has been

admitted.

The following are ways of proving title to land.

1. Traditional evidence

2. Production of documents of title duly authenticated.

3. Act of Positive possession over a period of time.

4. Long possession and enjoyment of the land.

5. Proof of possession of connected or adjacent land in .............

rendering it probable that the owner of such connected or adjacent

land would in addition be the owners of the land in dispute.

See ECHANOMI VS OKOTIE &ORS (2011) LPELR – 4969, see

IDUNDUN VS OKOMDGBA (1976) 9 – 10 SC 246.

In view of the fact that Plaintiff’s emphasis is on grant of land made

him by Abuja Municipal Area Council, over plot 560 Gbazango,

Bwari Area Council vide Customary right of Occupancy dated 2nd

February, 2995, the court shall for now examine the said claim of

Plaintiff viz – a- vis the defence of the 1st and 2

nd Defendants to

ascertain the veracity of Plaintiff’s claim.

It is also instructive to note that 3rd

Defendant, Edwin Apochi, the

supposed person whose record as stated by Dw1 is with Bwari Area

Council and owner of land in dispute, refused and or neglected to

41

attend this court throughout the proceedings in this matter despite

receipt of writ of summons and hearing notices. Needless to say, that

3rd

Defendant did not lead any evidence and or file any statement of

defence.

The court therefore is left with the claim of Plaintiff and defence of 1st

and 2nd

Defendants to conferred with.

I shall narrow my scope of search of Plaintiff’s kind of title to Exhibit

“A” which is the conveyance of provisional approval issued Plaintiff

by Abuja Municipal Area Council dated the 2nd

day of February,

1995, having tendered in evidence the said title document as prove of

title to the land in issue.

It is common knowledge in law that for there to be a valid contract,

there must be offer, acceptance construction and an intention to create

legal relation.

One other fundamental principles of law of contract is that the parties

must reach consensus ad-idem in respect of the terms thereof for the

contract to be regarded as legally building and enforceable.

See NJINKONYE VS MTN NIG. COMMUNICATION LTD (2008)

9 NWLR (pt. 1092) 339 at 363 paragraphs F-H.

An offer is a definite indication by one person to another that he is

willing to conclude a contract on the terms purposed, which when

accepted, will create a building legal obligation. The offer may be

verbal, written or implied from the conduct of the offeror. The offeree

42

has the option of accepting or out rightly rejecting the offer. See

AMANA SUITS HOTELS LTD VS PDP (2007)6 NWLR (pt. 1031)

453 at 476 paragraphs F-H.

Acceptance of an offer on the other hand, is the reciprocal act of

action of the offeree to the offeror in which he indicates his agreement

to the terms of the offer as conveyed to him by the offeror. Simply

put, acceptance is the act of compliance on the part of the offeree

(Plaintiff in this case) with the terms of the offer.

Certainly, it is the element of acceptance that underscores the bilateral

nature of contract.

Acceptance of an offer may be demonstrated by conduct of parties, by

their words, or documents that have passed between them.

See AMANA SUITS HOTELS LTD VS PDP (2007) 6 NWLR (pt.

1031) 453 at 477 – 478 paragraphs F-A.

A cursory look at Exhibit “A” i.e the conveyance of provisional

approval, particularly paragraphs three and four, which I shall

reproduce for ease of reference, will reveal a fundamental aspect of

this contract which was never met.

Paragraph three

“The date of commencement of this right of occupancy will be

the date of acceptance as signified by you, and should be

within two months from the date of this letter”...

43

Paragraph four

“I attach herewith two copies of letter of acceptance for your

completion and thereafter return a copy of same to me for my

records purpose, please.”....

Poser.. Did Plaintiff accept the offer of conveyance of provisional

approval vide letter of offer dated the 2nd

February, 1995 made by

Abuja Municipal Area Council..

If yes, why has Plaintiff not tendered the letter of acceptance in

evidence?

If no, could there then have been any existent contract between

Plaintiff and 1st and 2

nd Defendants?..

Suffice to state, in land matters, the burden is on the Plaintiff who

pleads title to prove that title.

This indeed is consistent with the burden of proof in our adjectival

law as contained in the evidence Act. See section 131(1), 132 and 133

(1) and (2) of the Evidence Act 2011.

See also the case of AREMU VS ADETORO (2007) 7 SC (pt. 11).

Plaintiff in the cause of trying to prove his title tendered conveyance

of provisional approval and the documents mentioned supra, which

were all generated on the strength of Exhibit “A”.

44

Exhibit “A” for all intents and purposes, had conditions therein

contained that were meant to be complied with to give legal efficacy

to the offer thereby culminating into a contract.

The said conditions provided for in paragraphs 3 and 4 of the said

Exhibit “A” i.e conveyance of provisional approval afore-reproduced

were never complied – with by the Plaintiff thereby leaving the offer

of grant of provisional approval unaccepted by the offeree i.e Plaintiff

in this case.

Having not accepted the said offer of conveyance of provisional

approval as provided under the said grant, I shall go further in view of

the age of the grant which is the 2nd

day of February, 1995, to

ascertain whether 1st and 2

nd Defendants did have or take any step

impliedly, by ratifying the inherent lacunae on the part of the Plaintiff

not to have signed an acceptance copy of the letter that accompanied

the grant of provisional approval and returned same to the applicable

department, to infer acceptance on their part.

It is in evidence that Plaintiff who testified to the effect that he fenced

the said subject matter of litigation did not seek and obtain approval

to so do, neither did Plaintiff obtain approval to commence building

on the said land, having not had any TDP chatted in his favour. Below

is the extract of what Plaintiff said when he was cross – examined by

learned counsel for the 1st and 2

nd Defendants,

Charity Allah O. :- “When did you start work on the land”?

45

Plaintiff :- 1996.

Charity Allah O.:-“Are you aware before you start development you

must have approval”?

Plaintiff.:- Yes.

Charity Allah O.:-“You didn’t have a building approval when you

started developing the land?

Plaintiff :-Yes, I intent to get it.

Charity Allah O.:- “Who destroyed your building?

Plaintiff:- I do not know.

Plaintiff who was led by his counsel in evidence also tendered letter

dated 14th

November, 2008 captioned, re-encroachment on plot No.

560 Gbazango layout Kubwa notice of encroachment which was

marked Exhibit “F”.

In response to Exhibit “F”, 1st and 2

nd Defendants wrote reply to

Plaintiff’s counsel which is contained in Exhibit “G” dated the 27th

August, 2010 captioned, re-complaint of encroachment in respect of

plot No. 560 of about 600m2 at Gbazango layouts.

For ease of reference, I shall re-produce paragraphs 2, (i) and (ii) of

the said Exhibit “G”.

46

Paragraph 2(i)

Please be informed that the zonal planning office has gone through all

its records and policy file received from Abuja Geographical

Information System (AGIS) revealed that:

i

“That plot No. 560 of about 620m2 at Gbazango layout and

name of allottee bearing Mike Egbuna later changed

ownership to Edwin Apochi was duly processed. While the

offer letter bearing Ikechukwu Kelchi Nwamadi was not

processed and is not genuine.”

ii

“The cartographic unit of the zonal land survey confirmed

charting of TDP in favour of Edwin Apochi ride file No. BN –

404.”

Exhibit “DB” dated the 29th

June, 2011 captioned “investigation

report on plot 560 Gbazango layout of about 600m2, tendered by 1st

and 2nd

Defendants, merely corroborates and strengthened the content

of Exhibit “G” supra..

I must be quick to mention forthwith that when attempt to prove title

fails, acts of possession based on that title cannot sustain claim of

title.

47

See UKAEGBU & ORS VS NWLOLO (2009) 3 NWLR (pt.

1127)194 SC. Also see DODO DABO VS ABDULLAHI (2005)2 SC

NJ 76.

Plaintiff who had all the time in this world to have signed acceptance

copy of the conditional conveyance of provisional approval of the

customary right of occupancy aforementioned to create a valid

contract never did that, neither did Plaintiff obtain approval from the

1st and 2

nd Defendants to erect fence round the said subject matter of

dispute and or the DPC erected on the land to infer acceptance on his

part to bund the 1st and 2

nd Defendants.

Certainly, he who seeks equity must as a matter of fact and law do

equity.

Indeed equity does not aid the indolent but the vigilant.

See OGBEIDE VS OSIFO (2007) ALL FWLR (pt. 365) 548 at 566 –

507 paragraphs B-C.

When therefore the claim of Plaintiff is juxtaposed with the evidence

and Exhibits tendered by both Plaintiff and 1st and 2

nd Defendants, it

is ominous that Plaintiff has failed to prove his title to the land in

question.

I truly and wholly agree with the submission of learned counsel for

the 1st and 2

nd Defendants that Plaintiff never in the 1

st place accepted

the offer made to him abinitio within the two months stipulated

therein on the bodies of the said letter of grant.

48

For the purposes of emphasis, Plaintiff in land matters, must establish

his title by leading credible evidence, if he must succeed.

The attitude of Plaintiff, I must say is must lackadaisical and careless.

It his cross, he has to carry it.

Permit me to observe that, the mere fact that an acknowledgment

letter was issued Plaintiff tendered and admitted as Exhibit “E” does

not connote regularisation of the said customary right of occupancy

conveyed in Exhibit “A”, to operate as estoppel. Infact, for such a title

to be deemed regularized, a statutory right of occupancy ought to be

issued in place of the customary right of occupancy by the Hon.

Minister of FCT.

See section 297(2) of the 1999 constitution of Federal Republic of

Nigeria as amended and section 18 of the FCT Act.

On the whole, I am most convinced, after a careful analysis of the

facts of this case visa-vis the evidence adduced that Plaintiff has

failed woefully both in the court of law and morality to establish his

title in line with established principles of law afore – dismissed.

In view of above fact, every other relief sought by Plaintiff as

endorsed on the said writ of summons, must fail, the head of the fish

is rotten, you truly do not expect any part of the fish to be spared.

I shall dismiss the claim of Plaintiff for all the reasons aforementioned

and given against the 1st and 2

nd Defendants.

49

Consequently suit No. FCT/HC/CV/2019/11 is hereby and

accordingly dismissed.

Justice Y. Halilu

Hon. Judge

13th

December, 2012