Dr. Atiku Aderonpe V. Alhaja Sobalaje Eleran & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Appellant, the Claimant at the trial High Court of Kwara State (Comm: J.E. Gbadeyan, J), spelt out in paragraph 23 of the Statement of Claim the following claims:

23. WHEREOF the Claimant claims against the Defendants jointly and severally as are as follows –
24. A Declaration that with the offer, and acceptance coupled with the payment of consideration in full he acquires title to and a vested right in (the) commercial plot 9 TPS/MISC.168 along Ajase-Ipo Road, Ilorin.
25. A Declaration that the 1st Defendant’s act of going unto (the) commercial plot 9 TPS/MISC.168 Ajase-Ipo Road, Ilorin in a manner adverse to the Claimants title and vested Right is illegal and in trespass.
26. General damages of N5m for the trespass committed by the 1st Defendant on the Claimant’s land aided by the 2nd and 3rd Defendants.
27. A Declaration is entitled to (the) Statutory Right of Occupancy over plot 9, TPS/MISC.168 along Ajase-Ipo Road, Ilorin.
28. Perpetual injunction restraining the Defendants by themselves, agents, servants and privies from committing further

1

acts of trespass on the Claimant’s land or going unto the land for any purpose whatever.

The 1st Defendant, against whom reliefs 1, 2, 3 & 5 in paragraph 23 of the Statement of Claim are pointedly directed, is a private citizen and a trader in Ilorin. She seemed to wield some political clout and influence. The 2nd Defendant, Governor of Kwara State, was the Chief Executive of the State Government. And the 3rd Defendant, a Commissioner incharge of the State’s Ministry of Lands and survey, was an appointee of the 2nd Defendant. The Claimant, like the 1st Defendant, is a citizen of Kwara State. He is a retired Director in Federal Civil Service.

The Appellant, herein called the “Claimant,” applied for a commercial plot on TPS/MlSC.168 along Ajase-lpo Road llorin. The approval was communicated to him through a letter, No:LAN/ARO/RES/28O45/Vo. 1/5 of 17th April, 2005. The letter was signed by one S. A. Abdul, Secretary of the Land Use and Allocation Committee (LUAC) for and on behalf of the 3rd Defendant. This letter Exhibit 1, is herein below reproduced, to wit:

<br< p=””

</br<

2

MINISTRY OF LANDS AND HOUSING

P.M.B 1425, ILORIN KWARA STATE

Ref. No. LAN/ARO/RES/28045/Vol. 1/5

Kwara State Land Use & Allocation Committee,

P.M.B. 1425,

Ilorin

Date: 17th April, 2005

Dear Sir/Madam,

APPLICATION FOR STATUTORY RIGHT OF OCCUPANCY FOR PLOT WITHIN ILORIN URBAN AREA

With reference to your applicationCOMMERCIAL plot I am happy to inform you that you have been allocated in principle. 9BlockTPS/MISC168

2. Meanwhile, you are requested to forward to this office the sum of N126,000andN20,000.00 being the sum for Premium and Layout fees respectively payable for the category of plot. This could be in cash or bank draft payable to the KWARA STATE “GOVERNMENT”.

You are also to pay a sum of N6,300.00for administrative charge in cash or Bank Draft payable to the MINISTRY OF LANDS AND HOUSING.”

In order to ensure that this offer does not lapse, relevant fees should be paid within NINETY (90) DAYS from the date of this letter, otherwise the plot may be reallocated to another person without prior notice.

3

Please note that after the 90 days, the plot, earmarked for you may be reallocated to another person without further notice.

3. you should not occupy or develop the plot until: –

(i) The premium demanded above is paid in full

(ii) Approval for the grant of occupancy is formally conveyed to you and you have accepted it.

(iii) The Town Planning Authority approves the relevant building plan.

(iv) An authorized official of this Department has identified plot to you.

(v) Adequate compensation is paid where applicable.

4. Once condition 3(i) – (iv) have been fulfilled you may demarcate your plot by means of fencing, erection of name, lab signboards or by commencing an approved development.
5. Compensation fee of also payable to Ministry of Lands and Housing.
6. Thank you for co-operation.

S. A. Abdul

Secretary Kwara State Land Use and Allocation Committee

for

For HON. COMMISSIONER:

(Underlining supplied)

LUAC, I pause to state, is a statutory body established by Section 2(2) of the Land Use Act. Its duties and powers include rendering advisory services to the Governor of the State (the 2nd Defendant) and his appointees, including the

4

3rd Defendant, on any matter connected with management of land, resettlement of persons affected by revocation of their titles; and resolution of disputes over compensation. It is a standing domestic tribunal with quasi-judicial functions.

The plot allocated to the Claimant is plot 9 on TPS/MISC.168. The 1st Defendant, who neither entered appearance to the suit of the Claimant nor filed any Statement of Defence, did not deny that the Claimant was allocated plot 9 on TPS/MISC.168 vide Exhibit 1. The 1st Defendant, not joining issues with the Claimant on her alleged brazen trespass to plot 9 on TPS/MISC.168, is deemed to admit the facts pleaded against her in the statement of Claim. The facts include her being allocated plot 6 on TPS/MISC.168 (quite distinct from plot 9 on TPS/MISC.168) which she rejected and she was relocated to plot 5 on TPS/MISC.182, which plot she accepted. It is specifically pleaded in paragraph 14 of the Statement of Claim that plots 6 and 9 on TPS/M|SC.168 (before the alleged redrawing) were distinct and separate; that 1st Defendant had problem with plot 5 on TPS/MlSC.L68 and she was re-located to plot 5 on TPS/MlSC.182 – a different

5

layout from TPS/MlSC.168; and that the 1st Defendant accepted her re-location to plot 5 on TPS/M1SC.182. It is further averred in the Statement of Claim in paragraphs 17, 18, 19 & 20 thereof:

17. The Claimant avers that the 1st Defendant has no claim whatsoever over his said land (plot 9 TPS/M1SC.168) and the backing given to her by the 3rd Defendant who is responsible to the 2nd Defendant is a naked display of power in an unfair and illegal manner.
18. The 1st Defendant having been allocated plot 5 TPS/MISC.182 has no claim whatever to plot 9 TPS/MISC.168 with which she had never had any relationship.
19. The 1st Defendant has in brazen act of trespass gone to commence the digging of foundation on the Claimant’s land.
20. The Claimant avers that with the allocation of plot 5 TPS/MISC.182, the 1st Defendant was told in clear written terms that her earlier claim to plot 6 on the letter of 4th January, 2005 had determined.

The 1st Defendant, filing no Statement of Defence, did not join issues with the Claimant on the foregone averments. She is deemed in law to have admitted those adverse facts. Facts not disputed are taken as admitted and established. They no longer require proof.

6

I find at page 147 of the Record the following facts said to have been admitted by all the parties at the pre-trial conference for the settlement of issues and facts. The facts are;

1. The Claimant was allocated plot 9 TPS/M1SC.168.
2. The Claimant, upon allocation of plot 9 TPS/MISC.9 vide Exhibit 1, paid all heads of consideration required by the said letter of allocation, Exhibit 1.
3. The 2nd and 3rd Defendants, purporting to discover an error in the original Layout Plan TPS/MISC.168, re-drew the layout plan and “the grant” – in Exhibit 1 was obliterated.
4. No plot, in the re-drawn layout plan, was allocated to the Claimant.
5. The 1st Defendant was originally allocated plot 6 TPS/M1SC.168. A problem arose and she was relocated to plot 5 on TPS/MISC.182 – an entirely new layout, which she accepted.
6. After 1st Defendant accepted her relocation from plot 6 on TPS/MISC.168 to plot 5 on TPS/MISC.182 and she accepted it. The 2nd and 3rd Defendants re-drew layout TPS/MISC.168 to accommodate the 1st Defendant (even though she had accepted plot 5

7

TPS/MISC.182 on 15.8.2005). The 2nd and 3rd Defendants now brought 1st Defendant back to plot 6 on the re-drawn TPS/MISC.168 which totally dispossessed the Claimant of plot 9 (re-numbered plot) on TPS/MISC.168.

7. LUAC waded into the dispute between the Claimant and the 1st Defendant, heard the parties and had given a date for their verdict. Before LUAC could resolve and communicate their decision to the Claimant and the 1st Defendant, the 3rd Defendant issued statutory Rights of Occupancy to the 1st Defendant over the disputed plot 9 (renumbered as plot 6) on TPS/MISC.168 and claimed that the statutory Right of Occupancy had “foreclosed the right of the Claimant in the entire layout without either withdrawing or revoking “the grant to the claimant over the same plot in Exhibit 1.

On the state of the pleadings and evidence the trial Court, in its final judgment, found inter alia at page 167 of the Record

The Claimant having been shown the plot which he quickly demarcated to take possession after paying the necessary consideration in law and in equity, the Claimant became vested with an enforceable title over the plot.

8

The totality of the credible evidence of the three witnesses in this case clearly establishes the Claimant’s vested title since April, 2005. Whereas the possession of the purported statutory Right of Occupancy, on its own, is only a prima facie evidence of title. Whereas in this case, there is a subsisting approval coupled with physical possession of the plot, the person in possession has a better title.

The name of the TPS or numbering the layout notwithstanding after allocating a plot to the Claimant and having taken all necessary steps to put him in (possession) and actually gave him physical possession in April, 2005, the Ministry of Land, had nothing left over that plot to pass to any other individual in November or December, 2005.

The right of an individual on a plot can only be extinguished by revocation not for the benefit of another private individual but for public use (purpose). See Section 28 of the Land Use Act, 1978.

It is trite law that in any situation, as in the instant case, where a Statutory Right of Occupancy is granted to another private individual over a plot of land held by another individual without his consent such

9

a Statutory Right of Occupancy has been held illegal, invalid, a null and void.

In the same vein, I hold (that) the title purportedly conferred on the (1st) Defendant (is) invalid, null and void and, accordingly reliefs 1, 2, 4 and 5 (above) are hereby granted as prayed.

In this case, I believe that some Ministry Officials must have played somewhat misleading roles for reasons best known to them, –.

These findings of fact are not perverse. None of the parties has alleged that the findings of facts are perverse. Indeed, they are amply supported by evidence and in tandem with known basic principles of the Nigerian Land Law.

The 3 Defendants appealed. Upon hearing the parties on the appeal, the lower Court reversed the decision of the trial Court, even after holding on authority of OBA OYEBADE LIPEDE & ORS. v. CHIEF ADIO SONEKAN (1995) 1 SCNJ 184; CHIEF JOSEPH OYEYEMI v. COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE (1992) SCNJ 266 at 278; OJO v. GOVERNOR OF OYO (1989) NWLR (Pt. 95) 572; WILSON v. ATTORNEY-GENERAL OF BENDEL STATE (1985) 1 NWLR (Pt. 4) 572; HART v. MILITARY GOVERNOR OF RIVERS STATE (1976) 2 FNLR 215 at 226;

10

that the Courts have a duty to protect a vested right, otherwise lawlessness will reign; and that rights which have vested will not be affected by subsequent change of policy, decision or even the law. This stance appears to be in tandem or in agreement with the trial Court.

The Lower Court, found in its judgment, at page 318 of the Record –

In this case, no legal estate that is statutory right had been conferred by the state on the Respondent (the Claimant). Thus, only an equitable interest was acquired by him.

However, at page 320 of the Record, in a manner appearing to be contradictory of its earlier finding that the Claimant had “only an equitable interest” by the grant to him in Exhibit 1, the Lower Court now found thus –

My humble view of the facts of this case is that at best the (Claimant) would have had an equitable interest in the land if the conditions of allocation under paragraph 3 had been fully implemented and he was in actual possession of the land.

And that by this latter finding it was “constrained to hold that no enforceable right to claim title, damages, trespass etc vests in the (claimant) by the mere allocation of land “in principle” as evidenced by Exhibit I”. The 2nd and 3rd Defendants filed no counter-claim wherein they could have been said to have invited us to hold that, by the Claimant’s alleged fencing of the plot, “the

11

conditions of allocation under paragraph 3” of Exhibit 1 had not “been fully implemented” etc.

The Lower Court, not totally disengaged from its earlier finding that “only an equitable interest was acquired” by the Claimant or vested in him by Exhibit 1, States thus at page 322 of the Record-

Let us look at the layman justice of this case. If the plots were renumbered, could not the (claimant) still have the plot allocated to him but with a different number I have to say that the administrators who are to deal with citizens should be even handed and impartial. One Commissioner gave the (claimant) land and his successor peremptorily took it from him. There must be appearance of the rule of law not rule of whims and caprice in the management of human affairs. That is how civilised government should function.

It is unfortunate that the state of our land law prevents us from protecting the (claimant) from frivolous high-handed administrators who engage in reckless administrative decisions (sic: without) adherence to equitable principles.

The question: what is this state of our land law that prevents us from protecting the Claimant from

12

this frivolous highhandedness of the 2nd and 3rd Defendants That is the core question.

The Lower Court appears to admit its inability to do justice to the claimant, as it was prevented from doing so by acre land law. In otherwords it found injustice done to the claimant by the 2nd and 3rd Defendants without remedy. But where lies Ubi Jus Ibi remedium in this case in a Court of Justice

The claimant has further appealed to this Court, and has prayed that we restore the judgment of the trial Court. The Respondents in their brief made so much fuss of the grant to the Claimant/Appellant being an “allocation in principle”; that Exhibit 1 was not intended to be a title document, and that the claimant/Appellant’s mere payment of the statutory fees did not “accord him equitable interest” in the disputed plot. On whether Exhibit 1 vested in the claimant “equitable interest” in plot 9 TPS/MISC 168 the Lower Court had abundantly equivocated. As the parties, on authority of A. G. RIVERS STATE v. A. G. AKWA-IBOM STATE (2011) LPELR – 633 SC and FAKOREDE v. A. G. WESTERN STATE (1972) 1 ALL NLR (pt. 1) 175, are not allowed to approbate and reprobate on the same

13

issue so also are Courts of law. The 2nd and 3rd Defendants/Respondents hold responsible positions in the Government of Kwara State. They are by that fact presumed to have, if not ascribed with, honour and good reputation.

The Lower Court while construing Exhibit 1 opined at pages 316 – 320 of the Record that the grant or allocation of plot 9 TPS/MISC.168 to the Claimant/Appellant being only in principle conferred “no enforceable right” on him to claim title etc over it. Oxford Advanced Learners Dictionary New 8th Edition defines or illustrates the idiom “in principle” as (1) If something can be done in principle there is no reason why it should not be done although it has not yet been done and there may be some difficulties, and (2) it also means – in general, but not in details. The first illustration seems to suggest the principle of equity by which equity takes as done that which ought to be done.

A grant or allocation in equity is, in the con of Exhibit 1, a grant subject to payment of the necessary consideration that would entitle the grantor to subsequently grant the Statutory Right of Occupancy.

14

It vests an interest, which though not fully legal, is equitable in nature pending the formal grant of the Statutory Right of Occupancy for which the requisite fees had been paid by the grantee.

The allocation made in Exhibit 1 by the 3rd Defendant, acting on behalf of the Governor (the 2nd Defendant), was pursuant to the powers statutorily vested in the Governor of Kwara State by Section 2(1)(a) and 5 (1) (a) of the Land Use Act, 1978. That is what gives the allocation to the Claimant in Exhibit 1, including the right to the allocation and the plot allocated, a statutory flavour. The interest of the Claimant accruing to him therefrom has statutory flavour. It is no doubt an interest in an immovable property. Section 44 (1) of the 1999 Constitution enjoins the 2nd and 3rd Defendant/Respondents thus –

No movable property or any interest in any immovable property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –

(a) requires prompt payment of compensation therefor; and

(b) gives to any person claiming such compensation a right of access in the

15

property and the amount of compensation to a Court of law or Tribunal or body having jurisdiction in that part of Nigeria.

I have no doubt whatsoever that the grant or allocation of plot 9 TPS/MISC.168, in principle, to the Claimant/Respondent by the 2nd and 3rd Defendant/Respondent vide Exhibit 1 vests in him an interest in the said plot 9 TPS/MISC.168 that Section 44 (1) of the Constitution protects.

At page 184 of the Record the trial Court, in its judgment, found as a fact (believing the CW.2) that the claimant was given a general approval for a grant of a Statutory Right of Occupancy. It also, at page 185 of the Record, believing the DW.2 that the Claimant, having paid all the fees required as consideration within the time stipulated; the Government owed him (the claimant) a duty to issue the Statutory Right of Occupancy the Claimant had paid for over Plot 9 TPS/MISC.168. The evidence of the DW.2 was an admission against interest. The substance of the DW.2 is that between the Claimant and the Defendants, particularly the 2nd Defendant, there is a done deal. The trial Court, rightly, found the DW.2 to be saying the sacrosanct truth against

16

the interest of the 2nd and 3rd Defendants. That finding of fact was neither challenged by the Defendants, nor found to be perverse by the Lower Court.

Coming back to the much hyped “allocation in principle”, its my firm stance on it is that it conveys the statement of the honour, an honest position, that can be trusted as self-evident truth coming from responsible government officials that an interest has been vested in the allocatee or grantee of a plot, as the claimant. The noun: principle, as Geddes & Grosset: English Thesaurus, as well as Burton’s Legal Thesaurus, suggest is synonymous with equity, goodness, honesty, honour, incorruptibility, integrity, justice, probity, rectitude, righteousness, trustiness, etc.

I should add, for emphasis, that once the Governor, pursuant to his power under Sections 2(1)(a) and 5(1)(a) of the Land Use Act, vests a possessory right in any person that interest, as vested, is right of occupancy: NKWOCHA v. GOVERNOR OF ANAMBRA STATE (1984) SCNLR 634. The Land Use Act empowers the Governor to vest right of occupancy in any person. The right of occupancy, which the Governor is statutorily empowered to vest

17

in an individual, is a legally recognisable possessing right in land: SALAMI v. OKE (1987) NWLR (Pt. 63) 1; (1987) 2 NSCC 1167.

All through the whole gamut of evidence there has been no sintilla of fact suggesting that the allocation or grant in Exhibit 1 has either been withdrawn or has been formally revoked for any reason. The 2nd and 3rd Defendants/Respondents, engaging themselves in unproductive prognitive resonance, flaunted an argument running thus; because the Claimant had entered the plot and erected perimeter fence round it without approval he had lost the allocation to him. Just like that Unfortunately, the Lower Court fell for it. There is no evidence that because of this alleged breach of a fundamental term, the 2nd and 3rd Defendants/Respondents revoked or withdrew the grant or the allocation conveyed by Exhibit 1. They have the right, under Section 28 of the Land Use Act, to revoke the allocation for breach of a fundamental term of the grant. The fact that they did not exercise their right of revocation suggests their acquiescence in the erection of the fence. That amounts to waiver, and that also is what makes it unconscionable, on

18

grounds of estoppel by conduct on their part, to rely on the fact of the very act they condoned as justification for re-allocating the same plot 9 (or plot 6) on TPS/MISC. 168 to the 1st Defendant. The principle of estoppel by conduct was been codified as Section 151 of the Evidence Act, 1990 LFN (now Section 169 Evidence Act, 2011).

The doctrine of this estoppel in CENTRAL LONDON PROPERTY TRUST LTD v. HIGH TREES HOUSE LTD (1947) KB 130 – THE HIGH TRESS CASE, and COMBE v. COMBE (1951) 1 ALL E. R. 767 operates thus – when one person has, either by virtue of an existing judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such persons representative in interest, to deny the truth of that thing.” The principle, apart being codified in the Evidence Act, has been applied by this Court in several cases including LADIPO AKANNI v. ADEDEJI MAKANJU (1978) 11 SC 13 at 26.

19

By this principle, the 2nd and 3rd Defendant/Respondents having condoned the claimant’s act of fencing plot 9 TPS/MSC.168 are estopped from setting up that fact against him as alibi for their (in the words of Ogunwumiju, JCA) “frivolous highhandedness” that smacks of reckless impunity of peremptorily taking plot 9 (renumbered plot 6) TPS/MISC.168 from the Claimant and purportedly giving the same to the 1st Defendant/Respondent.

A cardinal principle in our land law, guaranteed by Section 44 (1) of the Constitution and Section 28 of the Land Use Act, 1978, is that a vested interest in land, legal or equitable, cannot be extinguished whimsically or capriciously without the due process of the law. The Lower Court, at least, acknowledged this principle of law when, while alluding to the cases of HART v. GOVERNOR OF RIVERS STATE (supra), OJO v. GOVERNOR OF OYO STATE (1989) (supra), OBA OYEBADE LIPEDE & ORS v. CHIEF ADIO SONEKAN (1995) (supra), it restated the law correctly that the Courts have a duty to protect vested rights, otherwise a regime of lawlessness will flourish; and that rights or interests in land that have vested will not be affected by subsequent change in law or policy,

20

and in this case, a change in the incumbency on the seat of the Commissioner for Lands.

The trial Court, on these principles of Nigerian Land Law, had stated, at page 166 of the Record, that the right of an individual over or in a plot can only be extinguished by due process of the law for the revocation of the same, and that the revocation must be for public purpose and not for the benefit of another private individual. Section 28 of the Land Use Act read together with Section 44 (1) of the Constitution further reinforce these principles of our land law; that the revocation of a vested title or interest in or over a piece of land must be preceded by, or follow a due process of law and it must be for public purpose. These are principles laid down inFOREIGN FINANCE CORP v. LSPDC (1991) 5 SCNJ 52 (also reported as OSHO v. FOREIGN FINANCE CORP (1991) 4 NWLR (pt. 184) 157. The Lower Court was clearly in error when it held that this case and the principles it enunciated are not material and relevant precedent to follow in this case. It apparently misdirected itself when it found or assumed, perversely though, that in the instant case the grant to

21

the claimant vide Exhibit 1 had been revoked for breach of a fundamental term.

The grant in Exhibit 1 was/is subsisting. It was/is not a deemed grant. The grant in Exhibit 1 precedes the formality of the issuance of a certificate as evidence of the grant of a Statutory Right of Occupancy, all necessary prerequisites for the formal grant of Statutory Right of Occupancy have been fulfilled. In the circumstance, it is my firm view that the Lower Court was not right when it held, on authority of EMMANUEL ILONA v. SUNDAY IDAKWO (2003) 5 SCNJ 330, that where there is a statutory grant any other deemed grant would be invalid.

The Counsel for the Claimant/Appellant made a point, and I agree, that the law makes no distinction in the treatment of an equitable interest against individuals or authorities who had notice of a subsisting interest before hurriedly, and in a bizarre manner, purportedly, vested a “legal title” on a third party inorder, ostensibly, to defeat or frustrate the earlier subsisting right or interest.

On Exhibit 1, the Lower Court opined that on it the claimant could perhaps lay a claim for specific performance of a

22

contract of sale but however doubted if specific performance avails him under the Land Use Act. I am not aware of any rule of law that precludes a Court, in the interest of justice, from making any order for specific performance against the government where the right facts or circumstances justifying such order exist. I have not seen any provision of the Constitution by which it can be construed that any government in Nigeria is immune to order specific performance.

It appears to me that the misleading statement of facts presented to, and alluded to by the Lower Court at page 337 of the Record, that an alternative plot was offered to the claimant/Appellant which he refused to accept, had an enormous impact on the lower Court’s final decision. No pleadings or evidence to that effect exist anywhere in the proceeding supporting that misleading statement of fact. That statement, at page 337 of the Record, has no force of evidence.

It was the 1st Defendant/Respondent who was offered plot 6 on TPS/MISC.182 in lieu of plot 5 on TPS/MISC.168 that she was originally allocated. On 15th August, 2005, Exhibit 7, she accepted plot 5 on TPS/MISC.182 in lieu of plot 6

23

on TPS/MISC.168. Between the Claimant and the Defendants/Respondents, particularly the 1st Defendant, there is no dispute that 1st Defendant had migrated from the layout, TPS/MISC.168, having accepted plot 5 on TPS/MISC.182. The purported issuance of Statutory Right of Occupancy over plot 6 (former plot 9) in the re-drawn layout TPS/MISC.168, on which the Defendants/Respondents argue that the issuance of the said Statutory Right of Occupancy had superceded the grant to the Claimant in Exhibit 1, was clearly an act very whimsical, arbitrary and capricious on the part of the 3rd Defendant, an agent of the 2nd Defendant.

Notwithstanding the re-drawing of Layout TPS/MISC.168 the physical location of plot 9 remained fixed and constant. Plot 9 was though renumbered as plot 6. The beacons, as can be seen from Exhibits 6 and D10, demarcating or defining the said plot 9 or plot 6 remain beacons Nos. L9568, L9569, L9581 and L9585 on TPS/MISC.168. In view of Exhibits 1 and 7 and the facts pleaded in the Statement of Claim, which are deemed admitted by the 1st Defendant, I should think that the deponent of the affidavit, Exhibit D1, paragraph 11 thereof, told a

24

blatant lie when he averred that “1st Defendant is the first allottee on (the disputed plot) and (it) was restored back to her.” Exhibit D3, the Statutory Right of Occupancy was in view of Exhibit 7 of 18th August, 2005, obviously backdated to 4th January, 2005 to give a holy face to the dubiously capricious and arbitrary antics of the 2nd and 3rd Defendants. For the records and for purposes of the doctrine of priority, the interest of the Claimant on plot 9 (or plot 6) on TPS/MISC.168 was first in time.

On all the issues argued, I allow the appeal. The lower Court had no cause in law, facts and equity to disturb the decision of the trial Court. It found that the trial Court had painstakingly evaluated evidence and correctly appraised the evidence before it, and YET it reversed those findings painstakingly made by the trial Court without any concrete basis. The lower Court in the process made several findings of fact and holdens that are materially contradictory and perverse.

I allow the appeal. The decision of the Court of Appeal dated 12th March, 2008 in the appeal No. CA/IL/43/2007 is hereby set aside. The decision and orders of the trial

25

Court delivered on 30th November, 2006 in the suit No. KWS/206/2005 are hereby affirmed and restored.

The Claimant/Appellant is entitled to the costs he had been made to throw away in this appeal. The 2nd and 3rd Defendants (particularly the 3rd Defendant), as observed by the Lower Court, had clearly abused their offices and powers in the frivolous and highhanded manner they peremptorily took away from the Claimant/Appellant the disputed plot which, in their reckless impunity, they unjustly gave to the 1st Defendant/Respondent. All these are antithetic to the rule of law. Appellant, having spent money, time and other resources to successfully fight this travesty of justice is hereby awarded costs assessed at N2,000,000.00 payable by the Respondents jointly and/or severally.

---

SC.182/2009