Frank Eribenne V. Mr. Ali Sunday Ug & Anor (2007)

LawGlobal-Hub Lead Judgment Report

HON. JUSTICE OLUFUNLOLA OYELOLA ADEKEYE, J.C.A

The claim of the plaintiff Mr. Ali Sunday Ugo before the High Court of the Federal Capital Territory reads as follows:-

(I) Declaration that the plaintiff is the owner or a person with sufficient interest and entitled to certificate of occupancy in that piece of land situate, lying and being at Angwar Magaji Pyape-Nyanya Abuja Municipal Area council measuring 30M X 30M (100 feet by 100 feet) fenced round within the portion of property demarcated by beacons AZ1, AZ2, AZ3 and AZ4 belonging to the 2nd defendant.

(II) The sum of N5, 000,000 (five million naira) as general damages against the 1st and 2nd defendants jointly and severally for trespass.

(III) An order of the Honourable court directing the 1st defendant to immediately remove the structure erected on the plaintiffs land without his consent, permission or authority.

(IV) Injunction restraining the defendants themselves, or agents, servants, privies assigns or howsoever called from disturbing or further disturbing the plaintiff or any of his authorized agents from peaceful enjoyment of the land in question.”

Parties filed and exchanged amended statement of claim and amended statement of defence. The facts of the case briefly are that the plaintiff purchased a plot of land in Abuja to erect a residential building through his friend James Ochigbo who then resided in Abuja. The plaintiff himself ordinarily resides in Lagos. The piece of land 30m x 30m in dimension was purchased from the 2nd defendant Alhaji Allah Yayi Zakoyi.

The plot is located within a larger piece of land owned by the 2nd defendant and marked with beacons AZ1- AZ4. The plaintiff took possession of the land fixed his beacons and fenced same round, pending the time the 2nd defendant would process the certificate of occupancy on the land. He paid a purchase price of N120, 000 in respect of the land and deposited another sum of N15, 000 towards processing of the certificate of occupancy for the land.

Parties executed a power of Attorney on the 9th of June 1993 as evidence of payment for the land. On a visit of the plaintiff to the land in December 2000 he met the 1st defendant Mr. Frank Eribenne on the land erecting a house inside his fence. The 2nd defendant made an effort to grant him an alternative piece of land in the process of settling the matter amicably. The plaintiff refused the land as it was inside a thick jungle. Meanwhile the 1st defendant hurriedly continued with the construction of his house on the land. Vide pages 70-87 and 87-101 of the Record. This prompted the plaintiff to resort to court action. The 1st defendant claimed to have purchased the same piece of land in dispute from one Engineer Zakari Dogo for a sum of N400, 000 in 1999. Engineer Zakari Dogo traced his title to the plot of land to the 2nd Defendant and buttressed his claim with a power of Attorney executed by the parties in 1991 exhibited as DF1. DF1 was pleaded and tendered as evidence of payment of a sum of N220,000 paid by Engineer Zakari Dogo on 11/5/91 in respect of a piece of land with fence.

The 1st defendant claimed that when he bought the land from Engineer Dogo in 1999 he met the land already fenced with 9 inch blocks. The power of Attorney DF2 was executed. Vide pages 103-107 of the Record. The 2nd defendant testified that he sold the land in dispute to Engineer Zakari Dogo in 1999, six years after the first transaction with James Ochigbo, who was intermediary between himself and the plaintiff because he did not hear from either James Ochigbo or the plaintiff again. He further admitted that at the time he sold the land to the plaintiff in 1993 he did not sell the land to any other person before him. Vide pages 108-113 of the Record. Two witnesses testified for the plaintiff, the 1st defendant testified for himself while three witnesses testified for the 2nd defendant. The learned trial judge in his considered judgment delivered on 21/2/05 found that the plaintiff proved his case against the 1st and 2nd defendants and held as follows:-

(1) That the plaintiff is the owner or person with sufficient interest in the properly in question situate at Angwar Magaji, Pyape-Nyanya in Abuja Municipal Area council measuring 30M X 30M (100 feet by 100 feet) fenced round within the portion of property demarcated by beacons AZ1, AZ2, AZ3 and AZ4 belonging to the 2nd defendant.

(2) The 1st defendant being an innocent purchaser for value could not be said to be liable for damages for trespass. The 2nd defendant therefore is to pay the plaintiff fifty thousand naira (N50, 000) as damages for trespass.

(3) The 1st defendant having acquired no valid title shall forthwith remove the structure he puts in place on the land in question without the plaintiffs consent, permission or authority and

(4) The defendants are by themselves, their agents, servants, privies assigns or by any person claiming interest through them hereby restrained from disturbing the plaintiff or any of his authorized agents from peaceful enjoyment of the land in question.”

Vide pages 120-129 of the Record. The 1st defendant being dissatisfied with the judgment of the trial court has appealed to the court of Appeal upon five grounds of appeal, and one additional ground was filed with the leave of this court. The Respondent also filed a cross/appeal against the judgment.

Briefs were filed and exchanged. At the hearing of the appeal- the appellant Frank Eribenne adopted and relied on the appellants brief filed on 7/11/05, and distilled four issues for determination as follows:-

(I) Whether it is correct to infer that the transaction between the plaintiff/Respondent and the 2nd defendant is prior In time to that between Engineer Zakari Dogo and 2nd defendant in view of Exhibits “A: and DF’.

(II) Whether the plaintiff/Respondent has by the available evidence shown a better title to the piece of land as required by law against a bona fide claimant of title who is also in possession to warrant the granting of the Reliefs sought by him.

(III) Whether it is right in law to disregard a piece of evidence given under cross examination which is in favour of the adversary on account of the fact that the party giving it did not plead it, whereas the party in favour of whom it is given pleaded same, while in the same vein using the pleadings of the same party not supported by evidence as a basis for drawing a vital conclusion.

(IV) Whether the trial court was right in declaring the plaintiff/respondent owner or person with sufficient interest in the piece of land in dispute and proceeding to award damages and an injunctive order in his favour without advertising its mind to Section 297(2) of the 1999 Constitution of the Federal Republic of Nigeria.

The Respondent in his brief filed on 23/11/05 settled three issues for determination as follows:-

(i) Whether the learned trial judge was right in concluding that the transaction between the plaintiff/Respondent and the 2nd defendant was earlier in time to that between Engineer Zakari Dogo and the 2nd defendant.

(ii) Whether the learned trial judge was right in finding title in favour of the plaintiff/Respondent

(iii) Whether the decision of the trial court is in breach of Section 297(2) of the 1999 Constitution.

The written address filed by the 2nd defendant before the trial court was struck out as he was absent on the date of adoption. He did not file an appeal against the judgment directly.

In view of the similarities between the issues distilled for determination by the appellant and the Respondent, I intend to be guided by the issues raised by the appellant in the determination of this appeal.

ISSUE ONE

Whether it is correct to infer that the transaction between the plaintiff/Respondent and the 2nd defendant is prior in time to that between Engineer Zakari Dogo and 2nd defendant in view of Exhibits “A: and DF1.

The learned counsel for the appellant submitted on this issue that the appellant acquired his interest in the piece of land in dispute from one Engineer Zakari Dogo who took him to the 2nd defendant from whom he purchased the land. A receipt of payment dated 11/5/91 and marked Exhibit DF1 was issued to Engineer Zakari Dogo who also issued the appellant a receipt of payment – Exh. DF2. The plaintiff/Respondent and the 1st defendant/appellant traced their interests to the piece of land in dispute to the 2nd defendant before the trial court. The Respondent relied on Exhibit A as a receipt of payment issued by the 2nd defendant, while the 1st defendant/appellant relies on Exh. DF1 made in favour of Engineer Zakari Dogo. The transaction between Engineer Zakari Dogo and the appellant was however acknowledged by Exhibit DF2.

The learned counsel submitted further that the way to determine the order in which two competing interests created by a common vendor take priority is by their dates of coming to existence. In short the one with an earlier date takes priority over the one of a later date – qui prior est tempore portior es Jure – which means first in time is generally better in law. Exhibit A is dated 25/6/93 while Exhibit DF1 is dated 11-5-91. The learned counsel cited cases –

Kari V Ganaram 1999 2 NWLR pt 448 Pg 380.

Shobajo V Ikotun 2003 FWLR pt 172 Pg 1751 and 1753.

The learned counsel maintained that the learned trial judge was clearly in error when on page 127 of the judgment in the Record he decided to overlook the superiority of Exh. DF1 for the following reasons:-

(I) That Exhibits DF1 and DP2 were stamped on the same date.

(II) That Engineer Zakari Dogo was never called to give evidence in proof of Exh. DF1.

(III) That Section 149 (d) applies in favour of the plaintiff.

The pleadings of 2nd defendant in paragraph 5(1) relied on by the learned trial judge is contradicting and not supported by evidence.

It is trite that pleadings not supported by evidence go to no issue. Exh. DF1 was not rebutted by evidence. The learned counsel relied on cases:-

Adake V Akun 2003 FWLR pt 176 pg 626-627 NNPp V Otele 2004 All FWLR pt 208 pg 908 Matori V Bauchi 2004 All FWLR pt 197 page 1010 at Pg 1018.

The Respondent’s learned counsel Mr. Olurundare replied that it is a sound principle of law that to determine competing interests created by a common vendor the court will have to look at their dates of creation. The appellant’s case was that he bought the land in dispute from Engineer Zakari Dogo on 1st of October 1999 while the plaintiff/Respondent derived his title from the 2nd defendant/Respondent.

The appellant only traced his title to the 2nd defendant/Respondent on Exh. DF1 which was executed between Engineer Zakari Dogo and the 2nd defendant/Respondent.

Exh. DF1 was pleaded and tendered by the appellant as evidence of payment to 2nd defendant/Respondent. It was the evidence that the piece of land was already sold to Engineer Zakari Dogo in 1991 for a sum of N220, 000 with a fence thereon. By 1993 when it was allegedly sold to the plaintiff/Respondent it was no longer available for sale. The 2nd defendant/Respondent claimed that he sold the land to Zakari Dogo in 1999 six years after the first transaction with Chigbo because he could not see Chigbo or the plaintiff. The 2nd defendant/Respondent admitted under cross/examination that before selling the land to the plaintiff/Respondent in 1993, he did not sell the land to any other person.

There is no competing interest in the circumstance of this case. In 1999 when he sold the land to Zakari Dogo – the appellant’s vendor, the 2nd defendant/appellant had divested himself of any title he had since 1993. The principle of Nemo Dat Quod Non Habet applies. The learned counsel supported the foregoing submission with the case of Karl V Ganaram 1997 2 NWLR pt 488 pg 380 at pg 403.

The appellant confirmed in his evidence that Engineer Zakari Dogo informed him that he purchased the land fenced by 9 inch blocks. The appellant bought the land with knowledge of the 1st Respondents interest on the land, which amounts to an admission against interest. There is no need to prove what was admitted.

The learned counsel submitted that Sections 20 and 75 of the Evidence Act should be invoked in the circumstance. Further that a party who purchases a property with the knowledge of the equity of an earlier purchaser of the same property cannot benefit from his transaction. He cited the case of Universal Vulcanizing (NIG) Ltd V U.T.T.C. 1992 2 NWLR pt 266 Pg 388.

Exhs A and DF1 were admitted as acknowledgement of receipt of purchase price and not as evidence of title.

Olowolaramo V Unechukwu (2003) 2 NWLR pt 805 pg 537.

Exh. DF1 was inadmissible as the appellant was not a party to the document. It amounts to hearsay evidence contrary to Section 91 of the Evidence Act. The maker Zakari Dogo was not called to tender it in evidence. Consequently Exh. DF1 should not be afforded any probative value.

Exh. DF1 was not registered in accordance with Section 15 of the land Registration Act Cap 515 Laws of the Federation of Nigeria – though it qualifies as a document.

Exh. DF1 and DF2 were not rebutted because the 2nd Respondent admitted that he did not sell the land to anybody before the 1st Respondent in 1993. Such admission does not require any further proof when it is pleaded. Counsel referred to the case of Adake V Akun 2003 14 NWLR pt 840 pg 418 at pg 429.

The learned counsel concluded that this issue be resolved against the appellant.

ISSUE NO. 2

Whether the plaintiff has by the available evidence shown a better title to the piece of land as required by law against a bona fide claimant of title who is also in possession to warrant the granting of the reliefs sought by him.

The learned counsel for the appellant submitted that the plaintiff/respondents claim before the lower courts are declaratory, injunctive and damages for trespass and the removal of the appellants house where he resides. Such reliefs can only be granted to a claimant who proves better title to the land in dispute. Where two parties are contending their interest in a piece of land the court has a duty to determine who has a better title by guiding itself with the five ways of proving title to land. The plaintiff must adduce cogent evidence which must tilt the imaginary scale in his favour, if he must succeed.

Mogaji V Odofin 1978 4 SC 91

Onwuama V Eze Okoli 2002 FWLR pt 100 pg 1213 at 1217

Both parties traced their interests in the land in dispute to the 2nd defendant/respondent through Exh. ‘A’ made on 26/6/93 and Exh. DF1 made on 11/5/91 and DF2 made on 10/10/99. Exhs DF1 and DF2 debunk the plaintiff’s alleged act of possession the construction of the fence as Exh. DF1 made in 1991 refers to its existence as at the time. The 2nd defendant/respondent parted with the land in 1991, the 2nd Respondent had nothing to sell in 1993. The learned counsel supported his submission with the case of Kari V Ganaram (supra) and Shobajo V Ikotun (supra)

The learned trial judge obviously erred in his judgment when he held that the 2nd Respondent having transferred the land to the 1st Respondent in 1993 had nothing to transfer to Zakari Dogo in 1999 – he consequently declared the 1st Respondent the owner of the land while directing the appellant to remove his house from the land.

This court is urged to answer Issue NO.2 in the negative.

The learned counsel for the Respondent in his submission on this issue re-emphasised that Exhs. A, DF1 and DF2 were admitted in evidence not to prove title but to establish how much and when money was paid to the 2nd Respondent. The 2nd Respondent was categorical in his pleadings and oral evidence that he sold land in dispute to Engineer Zakari Dogo in 1999 six years after selling the same land to the 1st Respondent. He went further to say that he did not previously sell the land to anybody before the 1st Respondent.

He admitted that fence and beacons were erected on the land by the plaintiff/Respondent’s friend/agent Ochigbo in 1993.

If the 2nd Respondent is claiming to have sold the land to Zakari Dogo in 1991 his evidence is conspicuously inconsistent which does not remove facts he had earlier admitted. The learned counsel referred to the case of Egbunike V ACB Ltd 1995 2 NWLR pt 375 Pg 34.

The 2nd Respondent admitted that the plaintiff/Respondent put beacons on the land within four months of purchase through his friend Ochigbo and this is substantiated by evidence before the court. In the case of Ajero V Ugorji 1991 10 NWLR pt 621 pg 1 at pg 14 – cultivation of land, erection of a building line or fence and demarcation of land with pegs at its corners all have been held to be evidence of possession.

Thompson V Arowolo 2003 7 NWLR pt 818 pg 163 at Pg 232.

Even the appellant admitted that he saw a fence on the land in dispute.

This court is urged to resolve the 2nd issue in favour of the Respondent.

ISSUE NO. 3

Whether it is right in law to disregard a piece of evidence given under cross examination which is in favour of the adversary on account of the fact that the party giving it did not plead it, whereas the party in favour of whom it is given pleaded same, while in the same vein using the pleadings of the same party not supported by evidence as a basis for drawing a vital conclusion.

The learned counsel for the appellant submitted on this issue that the learned trial judge erred when he preferred the pleadings of the 2nd defendant not supported by evidence quoted by him at page 127 of the records to the effect that the transaction between Engineer Zakari Dogo and 2nd defendant was in 1999 and consequently held that the transaction of 1993 was first in part of time against that of 1991. It is trite law that pleadings not backed by evidence go to no issue. The learned counsel cited cases in support of the foregoing –

Adake V Akun 2003 FWLR (pt 176) pg 626 Buhari V Obasanjo 2005 All FWLR pt 258 pg 1604 and 1614

Motunwase V Sorungbe 1988 1 NWLR 90 at pg 102.

The court is urged to resolve this issue in the negative.

The Respondent’s learned counsel replied that learned trial judge was right in finding title for the 1st Respondent. The 2nd defendant/respondent admitted almost all the claims of the respondent – particularly paragraphs 3, 4, 5, 6, 8 and 9 of the statement of defence. In his oral evidence both in examination he admitted selling the land in dispute to the Respondent in 1993.

Before he sold the land to the plaintiff in 1993 he did not sell it to any other person. He did not remove the plaintiff/respondent’s fence or beacon on the land. This court is urged to resolve this issue against the appellant.

ISSUE NO. 4

Whether the trial court was right in declaring the plaintiff/respondent owner or person with sufficient Interest in the piece of land in dispute and proceeding to award damages and an injunctive order in his favour without adverting its mind to Section 297(2) of the Constitution of the Federal Republic of Nigeria 1999.

The learned counsel for the appellant submitted that by virtue of Section 297(2) of the Constitution of the Federal Republic of Nigeria 1999 – the ownership of all lands comprised in the Federal Capital Territory Abuja vests in the Federal Government of Nigeria. Ownership of land in the territory therefore does not customarily vest in individual indigenes or chiefs in the Federal Capital Territory.

No customary rights over land conferring ownership exist so that 2nd defendant/Respondent had nothing to pass. The learned counsel referred to the case of –

Ona V Atenda 2000 5 NWLR pt 656 pg 244

In other words

The learned trial judge erred when he granted the declaratory relief to the plaintiff/Respondent without recourse to Section 297(2) of the Constitution of the Federal Republic of Nigeria 1999.The learned counsel referred to Section 1(3) of the Federal Capital Territory Act Cap 503 Laws of Federation of Nigeria 1990.

The learned counsel for the 1st Respondent replied that a party is not permitted on appeal to change the case he had made at the trial court since an appeal is a continuation of the case put forward in a court of first instance. He cited the case of I.M.N.L V Pegofor Industries Ltd 2005 15 NWLR pt 947 Pg 1 at Pg 19.

The appellant relied for his root on the unregistered power of Attorney Exhibits DF1 and DF2 given to himself and Engineer Zakari Dogo. By the submission of the appellant on this issue he had admitted that his root of title is defective. Section 297(2) of the 1999 Constitution did not however say it has abolished the customary right vested in indigenes or chiefs in the Federal capital Territory or Anybody.

The case of Ona V Atenda cited by the appellants counsel did not decide on ownership of land in the Federal capital Territory but on whether there can be proper delineation of land in Abuja into Urban and Rural Land. The Supreme Court reviewed this case in Suit No. SC 187/2000 – Ona V Atenda delivered on 4th of November 2004(unreported).

The appellant did not plead this or make it an issue at the lower court.

The law is that a party who relies on the provision of a statute as defence should plead in his statement of defence facts relied upon for bringing a particular transaction within the ambit of t

he statute. I.M.N.L. V Pesofar Industries Ltd 2005 15 NWLR pt 947 pg 1 at pgs 18-19.

The Court of Appeal is urged to invoke Section 16 of the Court of Appeal Act to make appropriate order in respect of the plaintiff’s right on the disputed land.

I have painstakingly considered the submission of parties in this appeal.

I regard it right and also appropriate to commence consideration of the issues for determination with issue No.4. On the 7th of November 2005 this court granted leave to the appellant to raise and argue a fresh point of law not advanced in the trial court. By this the trial court was held to be wrong when it declared the plaintiff/Respondent owner or person with sufficient interest in the piece of land in dispute and proceeded to grant an injunctive order without adverting its mind to Section 297 (2) of the Constitution of the Federal Republic of Nigeria 1999.

This court has rightly granted the appellant leave to incorporate and argue this point as it raises an issue of law which on the other hand affects the competence of court to hear and determine the case. It raises an issue of jurisdiction. A court can only be competent when the subject matter of a suit is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. Once there is a defect in competence, it is fatal and the proceedings however well conducted are a nullity.

Madukolu V Nkemdilim 1962 2 SCNL 341. Ajao V Ajao 1986 5 NWLR pt 45 pg 802 Asoro V Lemonu 1994 7 NWLR pt 356 pg 284 Edene V Ugwu 1997 3 NWLR pt 491 Pg 57.

The learned counsel for the 1st Respondent argued in the appeal that the appellant is precluded from raising this issue on appeal. As a party is not permitted to change the case he had made at the trial court since an appeal is simply the continuation of the case put forward in the court of first instance A party is not allowed to approbate and reprobate in the conduct of his case. He supported this contention with the case I.M.N.L. V Pegofor Industries Ltd 2005 15 NWLR pt 947 pg 1 at Pgs 18-19. I agree with the foregoing submission but it is not applicable in the circumstance of this case. The reason is that jurisdiction is a radical and cruxial issue of competence. In the determination of jurisdiction of a court, the enabling law vesting jurisdiction has to be taken in the light of the relief or reliefs sought. The moment the relief sought comes within the jurisdiction of a court as adumbrated by the facts the court must assume jurisdiction, the reverse is also operative if the reliefs sought do not come within the jurisdiction of the court as presented by the facts – the court must decline jurisdiction. Jurisdiction is an exact law that has to be applied exactly to the given case A-G Lagos State V Dosunmu 1989 3 NWLR pt 111 Pg 552.

The question of jurisdiction being radically fundamental can be raised at any stage of a proceeding and even for the first time in the apex court, the Supreme Court. Its being raised in the course of pleadings can neither be too late or premature. The court can also suo motu raise it. Once it is apparent to any party that the court may not have jurisdiction, it can be raised even orally being an issue of law.

Petro-Jessica Enterprises Ltd V Leventis Technical Co. Ltd 1992 5 NWLR pt 244 pg 675.

Where the issue raised on appeal involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs be adduced which would affect the decision, the court will allow the question to be raised and points taken to prevent an obvious miscarriage of justice. It is therefore in the interest of justice and in an effort to prevent a miscarriage of justice to consider the provisions of Section 297 (2) of the Constitution of the Federal Republic of Nigeria as it affects the claim of the plaintiff/Respondent before the trial court.

Oshotoba V Olujitan 2000 5 NWLR pt 655 pg 159 Nalsa & Team Associates V NNPC 1996 3 NWLR pt 439 pg 621 Bankole V Pelu 1991 8 NWLR pt 211 pg 523 A-G Oyo State V Fair lakes Hotel 1988 5 NWLR pt 92 Pg 1 Adefulu V Okulaja 1998 5 NWLR pt 550 Pg 43

The sum total of the submission of learned counsel for the appellant on this issue is that the title acquired by both parties from the cross/Respondent is defective and same should be declared void. He has no interest to pass to the vendors as title in the land in the Federal capital Territory vests in the Federal Government.

Section 297 (1) of the 1999 Constitution provides that:-

“There shall be a Federal Capital Territory Abuja the boundaries of which are as defined in part II of the First Schedule to this Constitution.”

Section 297(2)

“The ownership of all lands comprised in the Federal Capital Territory Abuja shall vest In the Government of the Federal Republic of Nigeria.”

For the sake of emphasis and better understanding of the argument and submission of the parties. I shall restate the claim of the plaintiff/Respondent before the lower court:-

(I) Declaration that the plaintiff is the owner or a person with sufficient interest and entitled to certificate of occupancy in that piece of land situate, lying and being at Angwar Magaji Pyape-Nyanya Abuja Municipal Area council measuring 30M X 30M (100 feet by 100 feet) fenced round within the portion of properly demarcated by beacons AZ1, AZ2, AZ3 and AZ4 belonging to the 2nd defendant.

(II) The sum of N5, 000, 000(five million naira) as general damages against the 1st and 2nd defendants Jointly and severally for trespass.

(III) An order of the Honourable court directing the 1st defendant to immediately remove the structure erected on the plaintiffs land without his consent, permission or authority.

The background facts of the case reveal that there are two contestants to the land – situate at Angwar Magaji Pyape-Nyanya – Abuja. Both of them, the plaintiff/Respondent/cross-appellant and the appellant paid purchase prices to the respective vendors and were issued Exhs A, DF1 and DF2 according to the evidence before the lower court as acknowledgement of payment. The land now in dispute is located within Abuja Municipal Area council.

By virtue of Section 299 of the 1999 Constitution – “The provisions of the constitution shall apply to the Federation and accordingly.

Section 299(a) “All legislative powers the executive powers and judicial powers vested In the House of Assembly, the Governor of a state and in the court of a state shall respectively vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory Abuja.

Section 301 (C) reads:-

“References to persons, offices and authorities of a state were references to the persons, officers and authorities of the Federation with like status, designation and powers, respectively.

The learned counsel for the appellant on this issue relied heavily on the case of Ona V Atenda 2000 5 NWLR pt.656 pg 244.

The issues for consideration in the Ona V Atenda case are as follows:-

(a) Whether the combined effect of Section 1(3) of the Federal Capital Territory Act, and Section 261 (2) of the Constitution of the Federal Republic of Nigeria 1979, as amended, abolished customary Right of Occupancy in the Federal Capital Territory.

(b) Whether there is need to designate specific areas within the Federal Capital Territory as Rural or Urban areas if answer to question one is positive.

(c) What is the status of occupiers or holders of such land by virtue of Section 36(1) of the Land Use Act?

(d) What court has jurisdiction over the lands within the Federal Capital Territory is it Area Courts or High Courts having regard to the existing laws?

A full court of the Court of Appeal Abuja Division gave the unanimous decision that:-

By virtue of section 1(3) of the Federal Capital Territory Act 1976, Section 261(2) of the Constitution of Nigeria 1979, and Section 297 (2) of the 1999 Constitution the territory known as the Federal Capital Territory was created by the Act as the Federal Capital Territory of Nigeria. The ownership of all lands comprised therein was vested absolutely in the Federal Government of the Republic of Nigeria, The provision of the Land Use Act by Section 49(1) M – shall not apply to the land held by the Federal Government.”

The effect of the foregoing is that complete dominion or title or proprietary right over all lands that comprised the Federal Capital Territory has become completely that of the Federal Government independent of any other person or authority. The Federal Government has been clothed with exclusive right on the land as its owner and not just holding it in trust for the people.

By virtue of Section 18 of the Federal Capital Territory Act, only the minister for the Federal Capital Territory can grant statutory rights of occupancy over lands situate in the Federal Capital Territory. Whatever customary rights the original owners of the land had prior to the acquisition of the entire area ceased to exist as from February 1976 when the Federal Capital Territory came into effect.

I observe in the Record of Appeal that the suit before the lower court was filed on the 26th of February 2001, while Mr. Larry now learned counsel for the appellant entered appearance for the 1st defendant in the suit on the 8th of March 2001. It is noteworthy that throughout his defence before the lower court Mr. Larry did not raise the issue of Section 297(2) of the 1999 Constitution and its effect on the land in dispute. This court being an appellate court has no jurisdiction to hear witnesses, reliance is only placed on the evidence on printed record in the hearing and determination of Appeals. The learned counsel did not invoke the powers of court to take further evidence from parties in respect of this issue raised.

The 2nd defendant before the trial court now cross-respondent before this court, in his evidence-in-chief on page 109 of the Record of Appeal said that he had ten plots and was processing certificate of Occupancy for them at the same time.

This court can only presume that the ten plots were legally and properly allocated to him by appropriate authorities of the Federal capital Territory. As at the time he sold the land he was pursuing his Statutory Right of Occupancy at the office of the Minister of the Federal capital Territory.

The learned counsel for the Respondent in the appeal made available to this court the case SC/187/2000 of Abaji Area Council Ors V Jonas & Ors an unreported judgment of the Supreme Court delivered on the 4th day of September, 2004. The Supreme Court in the suit allowed the appeal and remitted the suit back to the High Court of the Federal Capital Territory for proper trial of the issues in controversy. The substance of the judgment is of no assistance to this court in the determination of issue No. one in this appeal.

The Federal Government shall grant Statutory Rights of Occupancy to land owners for any purpose. In short any interest or rights acquired in the land must be covered by a statutory right of occupancy.

The first leg of the claim of the plaintiff is for:-

“A Declaration that the plaintiff is the owner or a person with sufficient interest and entitled to certificate of occupancy in that piece of land situate, lying and being at Angwar Magaji Pyape-Nyanya Abuja Municipal Area council measuring 30M X 30M (100 feet by 100 feet) fenced round within the portion of property demarcated by beacons AZ1, to AZ4 belonging to the 2nd defendant.

The learned trial judge in finding in favour of the plaintiff/Respondent in his claim for declaration concluded that he has sufficient interest in the property that is, the land in dispute. This entitles the plaintiff/respondent to a Right of Occupancy as the land is located in the Abuja Municipal Council.

Adisa V Oyinwola 2000 10 NWLR pt 674 pg 116 (SC) Savannah Bank Ltd V Ajilo 1989 NWLR pt 97 pg 305

It is my conclusion that the decision of the lower court has not offended against Section 297 (2) of the 1999 Constitution.

This issue is resolved in favour of the Respondent.

ISSUE NUMBER ONE

Whether it is correct to infer that the transaction between the plaintiff/Respondent and the 2nd defendant is prior in time to that between Engineer Zakari Dogo and 2nd defendant in view of Exhibits “A and DF1.

In support of the foregoing the appellant made the point that the way to determine or ascertain the order in which two competing interests created by a common grantor/vendor is by their dates of creation. He invoked the principle of qui prior est tempore portior as jure which in other words means that he who is first in time is generally better in law. He explained in the light of this case that the appellant and the plaintiff/Respondent both traced their respective interests in the piece of land to the 2nd defendant/respondent. The appellant relied on DF1 made on 11/5/91 in favour of one Engineer. Zakari Dogo from whom he acquired interest and DF2 with which Engineer Zakari Dogo transferred interest to the appellant.

The plaintiff/Respondent held a contrary view, as there is no competing interest created by a common grantor/vendor in the instant case. The appellant’s case was that he bought the land in dispute from Engineer Zakari Dogo on 1st October 1999. Exhibit DF2 was tendered as an acknowledgment of payment. It is in form a power of Attorney executed between the appellant and one Alhaji (Engineer) Zakari Dogo on the 1st of October 1999, Another Power of Attorney tendered by the appellant Exh. DF2 as root of his title was executed between Engineer Zakari Dogo and Chief Allah Yayi Zakoyi the cross/Respondent on the 11th of May 1991. Both documents are on pages 137-143 of the Record of Appeal.

In considering the claims to the root of title to the land in dispute by the appellant and the plaintiff/Respondent respectively certain salient facts are worthy of note:-

a. That the cross/Respondent sold the land in dispute to the plaintiff/Respondent for a sum of N120, 000 and the Power of Attorney Exh. A was executed to that effect. A further some of N15, 000 was given to the defendant/Respondent to secure a Certificate of Occupancy in respect of the land.

b. Shortly after purchase the plaintiff/Respondent erected a dwarf wall up to about five-feet high on three sides and about 3-feet in the front around June and July 1993.

c. By December 2000 – there was an almost completed bungalow on the land.

d. The bungalow was erected by the appellant.

e. Appellant claimed interest in the land through purchase from one Engineer Zakari Dogo in 1999. Exh. DF2 was executed to that effect and a sum of N400, 000 was paid as purchase price.

f. Appellant also tendered Exh. DF1 a Power of Attorney executed between Engineer Zakari Dogo and the Cross/Respondent for the purchase of the land in dispute in 1991 for which a sum of N220,000was paid.

g. Engineer Zakari Dogo claimed to have purchased the plot of land in 1991 with the fence on it.

h. The appellant met the fence on the plot without a gate in 1999 when he purchased the land from Zakari Dogo.

i. The cross/Respondent admitted selling the land in dispute to the plaintiff/Respondent in 1993, and under cross-examination that before he sold the land in question in 1993 to the plaintiff he did not sell the same land to any other person.

j. The cross/Respondent however revealed that because of the pressure from the plaintiff/Respondent in respect of the Certificate of Occupancy in respect of the land in dispute – he offered the plaintiff/Respondent an alternative and a bigger piece of land at the same price, to which he was under the impression that the plaintiff/Respondent had agreed through his friend James Ochigbo.

k. How the defendant/Respondent pleaded in paragraph 5 (1) of his statement of defence as follows: – that “since the allocation was accepted he then sold the piece of land now contested by the plaintiff to one Engineer Zakari Dogo in 1999 six years after the first transaction with Ochigbo because he could not see Ochigbo or plaintiff again.

l. The defendant gave evidence that he offered the plaintiff/Respondent an alternative plot of land, a new allocation which he accepted through his friend James Ochigbo now deceased and the latter gave him the impression that the offer of the land was accepted.

m. In paragraph 8 of the statement of defence the defendant/Respondent stated that:-

”Second defendant also avers that he did not sell the land in question directly to the first defendant but to Zakari Dogo and that he was not part of the transactions leading to the subsequent transfer of same to the 1st defendant by Zakari Dogo.”

I cannot but advert my mind to the conflicts in the evidence adduced by the defence before the trial court as follows:-

A.) The date the land in dispute was supposed to have been sold to Engineer Zakari Dogo appear on Exh. DF1 as 11/5/91.

B.) The 2nd defendant who was the vendor confirmed by oral evidence that he sold the plot to Engineer Zakari Dogo in 1999 six years after the sale to the plaintiff since he could not see the plaintiff and Ochigbo his representative.

C.) There is further evidence on printed record from the 2nd defendant that before the sale to the plaintiff in 1993 he did not sell the land to any other person.

D.) There is also evidence on printed Record that as soon as the plaintiff acquired the land he erected a dwarf fence and placed beacons on it.

E.) Zakari Dogo and the 1st defendant met the fence without gate on the land when they purchased the land.

The foregoing raised a glaring confusion as to the date the defendant/Respondent sold the land to Zakari Dogo between 11/5/91 and 1999.

The answer to the question is fundamental to the proper determination of the issue involved in this case. I regard the evidence of Zakari Dogo as very vital to this case being the only avenue of clarifying their conflict and to resolve the issue of who first acquired interest in the land in dispute as between the appellant and plaintiff/respondent. I have to point out that though Exh. DF1 was admitted in evidence the probative value to be attached to it is a different issue for the judge to determine. That the only reliable evidence as to the sale of the land is that of the cross/Respondent that he sold the land to Zakari Dogo in 1999, six years after selling the land to the plaintiff/Respondent because he did not hear from him and his representative James Ochigbo. The obvious outcome is that Engineer Zakari acquired no interest in the land as the cross/Respondent had nothing to transfer to him; While Engineer Zakari Dogo had nothing to transfer to the appellant. The cross/Respondent had yielded all equitable interest in the land in dispute to the plaintiff/Respondent since 1993 when the plot of land was sold to him, The maxim qui prior est tempore portior es jure – which means he who is first in time is generally better in law is not applicable to the facts of this case and also the issue of acquisition of the land in dispute from common grantor/vendor.

Issue one is resolved in favour of the plaintiff/Respondent.

ISSUE NUMBER TWO

The reliefs sought by the plaintiff/Respondent are declaratory, injunctive and damages for trespass and of course removal of the 1st defendant/appellant’s house in which he lives with his family from the land in dispute. These reliefs can only be granted to a plaintiff who successfully proves title or better title to the land in issue.

It is trite and I agree with the appellant that in a claim for declaration of title, the plaintiff must succeed upon proof based on balance of probabilities and preponderance of evidence. He must therefore bring forward cogent evidence which must tilt the imaginary scale in his favour, if he must succeed. The plaintiff must also succeed on the strength of his own case and must not rely on any weakness in the case of the defence, except where it tends to strengthen the plaintiff’s case.

Mogaji V Odofin 1978 4 SC 91 Kodilinye V Odu 1935 2 WACA 336 Bello V Eweka 1981 1 SC 101 Ngene V Igbo 2000 4 NWLR pt 651 pg 131 Mogaji V Cadbury Nigeria Ltd 1985 22 NWLR pt 7 pg 393

The five ways of proving title to land are as follows:-

(1) By traditional evidence

(2) By production of documents of title which are duly authenticated

(3) By acts of selling, leasing, renting out all or part of the land or farming on it or on a portion of it.

(4) By acts of long possession and enjoyment of land and

(5) By proof of possession of connected or adjacent land rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.

Idundun V Okumagba 1976 9-10 SC 227 Thompson V Arowolo 2003 FWLR pt 164 Pg 315. Ishie V Mowanso 2000 13 NWLR pt 684 Pg 279

Where the issue is as to which of two claimants has a better right to possession or occupation of a piece of land in dispute the law will ascribe such possession and/or occupation to the person who proves better title thereto.

Aromire V Awoyemi 1972 1 All NLR pt 1 pg 101 Fasoro V Beyioku 1988 2 NWLR pt 76 Pg 263 Olohunde V Adeyoju 2000 10 NWLR pt 676 Pg 562

Where two parties are on land claiming possession, the possession being disputed, trespass can only be at the suit of that party who can show that title of the land is in him.

Umeobi V Otukoya 1978 4 SC 33

Mogaji V Cadbury Nigeria Ltd 1985 22 NWLR pt 7 Pg 393

Finally only a person in possession of land in dispute at the material time can maintain an action for damages for trespass.

Olagbenro V Ajagungbade 111 (1990) 3 NWLR pt 136 pg 37

Adebanjo V Brown 1990 3 NWLR pt 141 pg 661

Amakor V Obiefuna 19743 SC 67

Bamgbade V Balogun 1994 1 NWLR pt 323 pg 718

Both parties gave evidence of purchase of the disputed land and evidence of possession.

A valid sale of land by native law and custom is without the necessity for a conveyance as obtained under the English Law. What is required is the handing over of the purchase money by the purchaser to the vendor and the delivery of possession by the vendor to the purchaser.

A purchaser who entered into possession under a contract of sale after payment of the purchase price acquired an equitable title which may be converted into a legal estate by specific performance.

The equitable title can only be defeated by a purchaser of the land for value without notice of the prior equity.

Elema V Akenzua 2000 13 NWLR pt 683 pg 92

Aminu V Ogunyebi 2004 10 NWLR pt 882 pg 457.

The evidence of the plaintiff/Respondent in support of title to the land in dispute is more acceptable to the lower court and this court and same has been considered in Issue No.1. The purchase receipt tendered by the plaintiff/Respondent Exh. A is evidence that there was an agreement for sale of land and that the consideration for sale was paid by him. Ibemere V Unaegbu 1992 4 NWLR pt 235 pg 390

Olowolaramo V Umechukwu 2003 2 NWLR pt 805 pg 537.

Once there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained.

Orasanni V Idowu (1959) 4 SCNLR pg 97.

The plaintiff/Respondent immediately after payment of the sum of N120, 000 to the defendant/Respondent in 1993, planted beacons and erected a dwarf fence on the land. In the case of Ajero V Ugorji 1991 10 NWLR pt 621 pg 1 at page 14 the Supreme Court pronounced that acts of possession include cultivation of a piece of land, erection of a building line or fence and demarcation of land with pegs at its corners.

Thompson V Arowolo 2003 7 NWLR pt 818 pg 163

The appellant and his vendor admitted finding the fence on the land when same was purchased by them. This confirms that the appellant had adequate notice of prior equity on the land, which has defeated any interests he might have assumed that he acquired in the land at the time of paying a sum of N400, 000 to Engineer Zakari Dogo.

The appellant erected a residential building on the land regardless of the fact that he found a fence and beacons on the land and also that his predecessor in title met same objects on the land when he purchased same from the defendant/cross Respondent. This should have prompted them to further inquire into the availability of the land for purchase.

It is trite that a party who purchases a property with the knowledge of the equity of an earlier purchaser of the same property cannot benefit from his transaction.

Universal Vulcanizing (Nig) Ltd V U.T.T.C. 1992 9 NWLR pt 266 pg 338

The conclusion of the learned trial judge that the plaintiff/Respondent has proved his claim fur title on the land is impeccable. The 2nd Issue is therefore resolved in favour of the plaintiff/Respondent.

ISSUE NUMBER 3

This issue challenges the admissibility of pleadings not supported by evidence, and evidence led during cross-examination on issues joined by parties though not supported by pleadings. The appellant held that the learned trial judge erred when he preferred the pleadings of 2nd defendant/cross Respondent not supported by evidence at page 127 of the records to the effect that the transaction between Engineer Zakari Dogo and 2nd defendant was in 1999 and therefore held that the transaction of 1993 was first in time against that of 1991. It is trite that pleadings not backed by evidence go to no issue.

The appellant cited the case of –

Adake V Akun 2003 FWLR pt.176 pgs 636-7

The learned counsel for the Respondent submitted that the question for determination here is whether the learned trial judge in view of the state of pleadings and evidence led was right in finding title in favour of the plaintiff/Respondent.

The 2nd defendant/cross-respondent admitted almost all the claims of the plaintiff/respondent in his pleadings. In the evidence in chief and cross-examination he gave evidence relevant to his pleadings. The vital evidence was that he did not sell the plot in dispute to two persons and before he sold the land to the plaintiff/Respondent in 1993 he did not sell it to any other person neither did he remove the plaintiff/respondent’s fence or beacon on the land. The resale of 1999 to the appellant’s vendor cannot take priority over the purchase of the plaintiff made in 1993. The court is urged to resolve this issue in favour of the Respondent.

This issue to my mind challenges the finding of fact of the learned trial judge. First and foremost it is trite that in the course of trial evidence led not supported by the averments of the parties and vice versa should attract immediate objection by the opposing counsel and same should have been expunged from record. A party is bound by his pleadings and can go outside it to lead evidence or rely on facts which are extraneous to those pleaded.

On pages 127-128 of the Record the learned trial judge reviewed the evidence of the parties before the court. Paragraph 5(1) of the statement of defence quoted was supported by evidence of the parties on oath and his evidence during cross-examination. The only contradictory piece of evidence is the document Power of Attorney supposed to have been executed between him and Zakari Dogo in 1991 – whereas the 2nd defendant/cross respondent gave evidence of effecting the sale in 1999. Zakari Dogo was not available to give evidence during the trial before the lower court. The attitude of the appellate court to evaluation of evidence remains that it is preeminently the duty of the trial court to see, hear and assess each witness as to whether he should be believed or not, and where the trial court has discharged that responsibility, the appellate court will not interfere with such finding unless they are shown to be perverse, unsupported by evidence or based on evidence not legally admissible.

A finding of fact will be perverse where it is speculative and not based on any evidence or the court took into consideration matters which it ought not to have taken into account or the court shut its eyes to the obvious.

Adimora V Ajufo 3 NWLR pt.80 pg 1

Atolagbe V Shorun 1985 1 NWLR pt.2 Pg 360

Adeosun V Jibesin 2001 11 NWLR pt.724 pg 290

Uke V Ugboaja 1993 6 NWLR pt.301 pg 539

Woluchem V Gudi 1981 5 SC 291

Balogun V Agboola 1974 10 SC 111

Kyari V Alkali 2001 11 NWLR pt.724 Pg 412

Ojokolobo V Alamu 1998 9 NWLR pt.565 pg 226

Ebba V Ogodo 1984 1 SCNLR pg 372

Ogedengbe V Balogun 2007 9 NWLR pt.1039 Pg 380.This issue is resolved in favour of the Respondent. In sum this appeal lacks merit. It is dismissed accordingly. Judgment of the lower court is affirmed.

CROSS APPEAL

The 1st Respondent lodged a Cross-Appeal in this suit, and relied on the Cross Appellant’s Brief filed on 23/11/05 and the Cross-Appellant’s Reply Brief to the 2nd Cross-Respondent Brief of Argument deemed filed on 7/11/06.

The Cross/appellant distilled one sole issue from the three grounds of appeal which reads:-

“Whether the trial court properly found the appellant/1st defendant to be innocent purchaser for value without notice so as to exculpate him from being damnified in damages.”

In response to an application filed on 20/10/06 for an order that the plaintiff/Respondent/Cross-appellant be granted leave to argue his cross/appeal ex-parte – the 2nd defendant/Respondent reacted to the cross/appeal. The cross/Respondent raised a singular issue from the cross/appellant’s three grounds of appeal as follows:-

Whether the cross-appellant by the totality of his claims and evidence before the court has proved title and therefore entitled to the declaration of title sought from which success trespass can be inferred and damages there from awarded?

The Cross/appellant in favour of the issue raised submitted that according to pleadings and evidence before the court the 1st defendant/appellant admitted in paragraph 3(c) of the statement of defence of buying the land in dispute from one Engineer Zakari Dogo with a fence thereof. It was the evidence that Engineer Zakari Dogo bought the land in dispute in 1991 vides a Power of Attorney tendered as Exh. DF1 from the defendant/Respondent. In the evidence of the appellant he informed the court that while negotiating for the land he saw the fence on the land and he gathered the information from his vendor Engineer Zakari Dogo that he bought the land with the fence in 1991 from Chief Allah Yayi Zakoyi Chief of Mararaba. The appellant however indicated that he did not inquire into who erected the fence on the land. The appellant further submitted that the defendant/appellant is caught in the web of “Caveat Emptor”

The appellant cannot be regarded as innocent purchaser for value without notice as he was aware of the presence of the cross/appellant on the land in dispute. He cannot be exculpated from damages arising from the trespass committed on the land. The appellant continued to build on the land in dispute despite warning to him by the cross/appellant to stop development on the land. The cross/appellant gave an insight into who is a purchaser without notice by citing the case of Ageh V Tortya 2003 6 NWLR pt 816 pg 385.

The lower court in the judgment found that vendor to the defendant/appellant – Engineer Zakari Dogo is a trespasser as the defendant/cross-Respondent cannot resell to him the land he had earlier on sold to the Respondent/cross-appellant. It is trite law that a successful plaintiff in an action for trespass is entitled to damages even if no damage or loss is caused. The cross/appellant gave the guiding principles by which an appellate court will interfere with the award of damages relying on the case of Alawiye V Ogunsanya 2004 4 NWLR pt 664 pg 466 at pg 517.

The cross/appellant had by paragraph 12(ii) of his amended statement of claim, claimed N5 Million against the appellant and 2nd defendant jointly and severally for trespass. The learned trial judge awarded a sum of N50, 000 as damages for trespass against the cross/respondent only. The award is considered ridiculously row by the cross-appellant considering the quantum of damage done on the cross-appellant’s land and the injury suffered. The learned trial judge did not give reason for the award of such paltry amount. The cross/appellant cited the case of Obmiami Brick & Stone (Nig) Ltd V ACB Ltd 1992 3 NWLR pt 229 pg 260

The court is urged to allow the appeal.

The cross/Respondent restate the cross/appellants claim before the lower court, as being for declaration of title, trespass and injunction, title is therefore put in issue and same must be proved. The three claims are interwoven Relief’s 2, 3 and 4 can only be granted if Relief one is successful.

The title of the overlord of the cross appellant is unknown to the laws of the Federal Capital Territory. By Section 297 (2) of the 1999 Constitution all lands with the Federal capital Territory is vested in the Government of the Federal Republic of Nigeria. The Cross-appellant can only establish his claim to the land by showing that he is an original allotee or through an original allottee. He must satisfy the court by exhibiting

(a) A Certificate of Occupancy issued by the Federal Capital Territory Administration or

(b) A Letter of conveyance of Offer of Provisional Allocation from the said Federal Capital Territory Administration which letter alone makes the party holding it the person entitled to the Certificate of Occupancy.

The claim of the plaintiff/Respondent must fail where the title of the original allotee of the land is not rooted in either (a) or (b) above. The cross-appellant must prove that he conducted searches in the appropriate places particularly at the land registry Abuja. Title in the land did not vest in the cross-appellant as the cross-Respondent had not title to pass to him hence he was not entitled to the declaration made in favour and the damages awarded therefrom. The Cross-Respondent cited cases like-

Eme Ndukwe V Uma Acha 1998 5 SCNJ 28 Haldadu Dadi V Idi Garba 1995 9 SCNJ 232

The cross-Respondent urged the court to dismiss the cross-appeal because the trial judge did not understand the difference between a claim for trespass, similarities in which case the only requirement is proof of possession and a claim for declaration of title and trespass in which the award of damages for trespass must be dependant on prove of title. The trial judge merely substituted prove of title with possession hence the declaration made and award of damages even in the face of total failure of the cross-appellant to proof title.

It is my candid view that the issue for determination of this court in this appeal is straight forward and withdrawn narrow limits. The cross-appellant challenges the damages awarded by the lower court having succeeded in his claim for trespass. This court is requested to award damages against the appellant and to review the amount awarded up-wards. The cross-Respondent went off track by reopening the issue of declaration of title already considered in the main appeal, and also introducing a new legal argument which was not canvassed before the trial court and for which leave of this court was not sought and obtained before including same in the brief of argument.

The court of Appeal or the Supreme Court will not allow points which were not taken in the trial court to be taken for the first time on appeal. A fresh issue can be raised on appeal only with the leave of court, and where no leave is sought and obtained, the issue becomes incompetent and liable to be struck out.

The rational behind the foregoing is that the jurisdiction of the Court of Appeal is only and purely appellate and it will be unfair to the trial court for its judgment to be upturned on a point it was never given an opportunity to rule on.

Ajuwon V Adeoti 1990 2 NWLR pt 132 pg 127 A-G Oyo State V Fairlakes Hotels Ltd 1988 5 NWLR pt 92 pg 1 FRN V Zebra Energy Ltd 2002 3 NWLR pt 754 Pg 471 Salami V Mohammed 2000 9 NWLR pt 673 pg 469 Eze V A.G Rivers State 2007 18 NWLR pt 746 pg 524 Where there are two competing claims of ownership of a parcel of land and each contestant is relying on acts of ownership and actual possession anyone of them who can prove title is in actual possession and the other a trespasser. The slightest possession in a party enables that party to maintain an action in trespass if the other party cannot show a better title.

Aminu V Ogunyebi 2004 10 NWLR pt 882 pg 457 Nwosu V Otumba 1974 1 All NLH pt 1 pg 533.

It is trite that only a person in possession of land in dispute at the material time can maintain an action for damages in trespass Olegbenro V Ajagungbade III 1903 NWLR pt 136 pg 37

Adebanjo V Brown 1990 3 NWLR pt 141 by 661

Olohunde V Adeyoju 2000 10 NWLR pt 676 pg 562

Immediately after purchase of the land in dispute in 1993 – the cross-appellant exercised possessory rights on the land by erecting a dwarf fence and fixing beacons on the land.

The appellant claimed that he met a fence without gate on the land. His vendor Zakari Dogo claimed that he met this same fence on the land when he purchased it from the original owner the cross-Respondent. The Appellant was a purchaser of the land for value with notice of prior equity on the land. The learned trial judge obviously erred when he held in his judgment that:-

“The 1st defendant being an innocent purchaser for value could not be said to be liable for damages for trespass. The 2nd defendant, therefore is to pay the plaintiff fifty thousand (N50, 000) as damages for trespass”.

A bona fide or innocent purchaser of legal estate for value without notice is one who purchased in good faith, honestly, without fraud, collusion or participation in wrong doing, and paid consideration in money or money’s worth of a legal estate without knowledge of the existence of equitable interest. Notice in the circumstance may be actual or constructive or imputed. A person has actual notice of all facts of which he has had actual knowledge however that knowledge was acquired. By constructive Notice the court imputes that the purchaser should inquire about equitable interests with no less diligence than about legal interest which he could ignore at his peril.

The technical language is caveat Emptor which connotes that the risk of incumbrances is on the purchaser who must satisfy himself by a full investigation of title before completing his purchase. A purchaser would be able to plead absence of notice if he had made all usual and proper inquires and had still failed to detect the equitable interest.

There was no evidence of the inquires made by the appellant when he saw the fence and beacons on the land he proposed to purchase. He subsequently erected a building on the land and fixed a gate to the existing fence. He does not in the light of the foregoing qualify as an innocence purchaser for value without notice.

Animashaun V Olojo 1990 6 NWLR pt 154 Pg 111.

The 1st defendant/appellant is equally liable in trespass with the cross-Respondent in the circumstance of this case. He entered into the land in dispute with adequate notice of the prior equity in the land.

Obijuru V Ozims 1985 2 NWLR pt 6 Pg167 Ogunbambi V Abowab 1951 13 WACA 222 Elema V Akenzua 2000 13 NWLR pt 683 pg 92

Once trespass is proved, an action in damages lies and the trial court can award damages. It is however noteworthy that in an award of damages the trial court has the discretion to make its own assessment and this will not be set aside by an appeal court except the amount is manifestly too high or too low or awarded on a wrong principle. In this case the amount (N50, 000) fifty thousand naira awarded in favour of the cross/Respondent is not only awarded on a wrong principle, but equally too low in the circumstance of this case.

An appellate court is not at liberty to substitute its own discretion for the discretion already exercised by the trial court. In this case I have reached the conclusion that there has been a wrongful exercise of discretion by the trial court because it did not give due weight to relevant considerations upon which judicial discretion is exercised, this honourable court is duty bound to interfere with the exercise of discretion of the trial court.

Okere V Nkem 1992 4 NWLR pt 234 Pg 132 Oyeyemi V Irewole Local Government 1993 1 NWLR pt 270 Pg 462

This court has the power to invoke Section 16 of the Court of Appeal Act Cap 75 LFN 1990 to award damages the trial court Failed to award or review upwards or downwards the damages already awarded. The prevailing Factor is that an appellate court will equally interfere where injustice will result if the court does not act.

Alawiye V Ogunsanya 2004 4 NWLR pt 864 Pg 486. The acts of the appellant and cross/respondent wrongly deprived the cross-appellant of the enjoyment of and development of his land. The cross-appellant paid N120, 000 for the disputed land in 1993, while the appellant paid N400, 000 for the same land in 1999. While awarding any damages in respect of the land now one has to take into consideration the soaring cost of land. The court must also take into consideration the inconvenience the cross-appellant would encounter before his land reverts to him.

In effect the cross appeal succeeds.

The award of damages for trespass is assessed at N500, 000 against the appellant in the main appeal, and N250, 000 against the cross-Respondent severally.

In the final analysis the main appeal lacks merit and is hereby dismissed. The judgment of the lower court is affirmed as follows:-

(1) That the plaintiff is the owner or person with sufficient interest in the property in question situate at Angwar Magaji, Pyape-Nyanya in Abuja Municipal Area Council measuring 30M x 30M (100 feet by 100 feet)fenced round within the portion of properly demarcated by beacons AZ1, AZ2, AZ3 and AZ4 belonging to the 2nd defendant.

(2) The 1st defendant is to pay the plaintiff N500, 000 for damages for trespass. The defendant is to pay the plaintiff N250, 000 as damages for trespass.

(3) The 1st defendant having acquired no valid title shall forthwith remove the structure he puts in place on the land in question without the plaintiff’s consent, permission or authority and

(4) The defendants are by themselves, their agents, servants, privies, assigns or by any person claiming Interest through them hereby restrained from disturbing the plaintiff or any of his authorized agents from peaceful enjoyment of the land in question.

A sum of N30, 000 is awarded against the appellant in favour of the Respondent.

The cross-appeal succeeds. A sum of N30, 000 is awarded in favour of the cross/Appellant.

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Other Citations: (2007)LCN/2543(CA)