Mrs. Mary E. Akwuaka V. Dr. Ambrose A. Lyam & Ors (2007)
LawGlobal-Hub Lead Judgment Report
NDUKWE-ANYANWU, J.C.A.
The plaintiff/appellant in this appeal had sued the defendant/respondent in the High Court of Benue State claiming the following reliefs:-
“(i) An order of perpetual injunction restraining the defendants, their agents, servants, privies, from in any way interfering with or prejudicing the rights of the plaintiff in Plot No. BNC 310.
(ii) An order compelling the 2nd – 3rd defendants to issue to the plaintiff forthwith. Certificate of Occupancy in respect of Plot No. BNC 310.
(iii) Any other equitable or legal remedy that meets the justice of this case.”
The facts of this case is briefly that. the plaintiff had requested for land for commercial purposes from the 2nd and 3rd defendants/respondents sometime in 1998. Plot No. ENC 310 was allocated to her as vacant land. The plaintiff accepted, paid fees in furtherance of the allocation and preparation of Certificate of Occupancy. The plaintiff/appellant infact went into the land and started development. She sand filled the land, fenced, rechanelled the water, put up the small building and started her block making industry.
In June 2001, the 1st defendant/respondent came on the scene and claimed that the plot was allocated to him in 1992. The 2nd and 3rd defendants/respondents then stepped into the matter but failed to resolve the issue. Consequently, the plaintiff/appellant took out a writ against the defendants/respondents.
The parties exchanged pleadings and narrowed the issues for determination. Both sides agreed that the only issue for determination was:
“between the plaintiff and 1st defendant who is entitled to be granted Statutory Right of Occupancy over the disputed plot of land.”
The parties all agreed and submitted their written addresses to the court.
The court delivered its considered judgment on 11th March, 2004 and held that the 1st defendant has “a better right to the issuance of the Certificate of Occupancy or any other title deed over the disputed plot.”
The plaintiff/appellant being dissatisfied with the said judgment of Ejembi Eko. J. of Benue High Court sitting in Makurdi appealed.
The appellant filed her notice and 8 grounds of appeal.
The appellant also filed her brief of argument and distilled 3 issues for determination. Issues 1 and 2 were distilled from grounds 1, 2, 3, 4 and 5 and argued together.
Issue 3 was distilled from grounds 6. 7 and 8 and argued.
The 1st respondent also filed his brief of argument. The 2nd and 3rd respondents relied on the brief of argument of the 1st respondent.
The 3 issues for determination by the appellant are as follows:-
i) Was the learned trial Judge, Eko. J. not in error to have found that plot No. BNA 10089 was earlier allocated to the 1st respondent by LUAC and whether the principles of priority of interest is applicable to this case.
(Grounds 1, 3 and 4 of the notice and grounds of appeal).
(ii) Was Eko, J, not in en-or to have failed to consider the issues of the conduct of the 1st respondent and the applicability of the principle of estoppel by standing by raised in the pleading of the appellant and whether in the circumstances of this case the rule in Ramsden v. Dyson is applicable to this case. (Grounds 2 and 5 of the notice and grounds of appeal).
(iii) Whether the learned trial Judge properly evaluated the evidence in this case before proceeding to dismiss the case of the appellant and in the light of the evidence before the court whether the dismissal of the case of the appellant, without any order against the 2nd – 3rd defendants was just and proper and in any case was Eko, J. not in error to have granted declaration of title and injunctive orders in favour of the 1st respondent.
(Grounds 6. 7 and 8 of the notice and grounds of appeal).”
Issues 1 and 2
The learned counsel to the appellant contended that the trial Judge was in error to have held that plot No. BNA 10089 was earlier allocated to the 1st respondent by LUAC and referred the court to exhibit A page 5. On page 5 of exhibit A, the words “the following application were considered and recommended for grant of light of occupancy.”
Learned counsel submitted that this does not mean allocation of land. Counsel submitted further that the failure of the trial Judge to appreciate the distinction between recommendation and allocation was a fatal one. See Tangale Traditional Council v. Fawu (2002) FWLR (Pt. 117) page 1137: (2001) 17 NWLR (Pt. 742) 293. There was also no evidence that the recommendation to issue 1st defendant a Certificate of Occupancy was ever accepted by the 3rd respondent. Learned counsel further submitted that LUAC had no right to allocate land and as such plot BNA 10089 was not allocated to the 1st defendant. That the allocation of land is vested in the 3rd respondent.
In this case the appellant’s counsel submitted that she was allocated Plot BNC 310. She also paid on demand fees required for the preparation of the Certificate of Occupancy. See exhibits C1- C3
Apart from being in possession the appellant has developed the plot appreciably.
Counsel urged the court to hold that the learned trial Judge was in error when he held that Plot BNA 10098 was earlier allocated to the 1st defendant.
The learned counsel for the appellant has contended that the trial Judge was in error when he applied the principle of priority of equitable interest in this case. Counsel argues that this is not a question of equalities that the appellant’s interests have gone beyond equitable interest. The appellant’s right of occupancy was prepared and signed into law. The appellant has also paid for the allocation and paid for the Certificate of Occupancy. Counsel also urges the court to hold that the appellant was an innocent purchaser of plot No. BNC 310 for value without notice of the alleged prior equitable interest of 1st defendant/respondent in plot BNA 10089.
The appellant contends that the title of the 1st defendant/respondent is irregular and as such the rule of priority of equitable interest cannot be resolved in favour of 1st defendant/respondent. See Oyerogba v. Ido Local Government Area (2001) FWLR (Pt. 36) page 928 at 945: Okhuarobo v. Aigbe (2002) FWLR (Pt. 116) page 869 at 919: (2002) 9 NWLR (Pt. 771) 29. That priority of equitable interest rule will avail the 1st defendant/respondent in cases where he has a good title.
Also the appellant alleged that the 1st defendant/respondent did nothing to show his interest in plot No. BNA 10089 since 1992. See Ejuetami v. Olaiva (2002) FWLR (Pt. 88) page 955 at 983; (2001) 18 NWLR (Pt. 746) 572. The 1st defendant/respondent did nothing until 2001 when the plaintiff/appellant had fully developed the plot.
The appellant also alleged that the 1st defendant/respondent lives in Makurdi and in a position to have laid claims to the land earlier than he did. See Ramsden v. Dyson (1866) I. H. L. 129; Paul v. Ozokpo (1995) 4 SCNJ page 119 at 133.
The learned appellant’s counsel also submitted that the learned trial Judge failed to consider the issue of estoppel against the conduct of the defendant/respondents Oyefolu v. Durosinmi (2001) FWLR (Pt. 69) at 1430; (2001) 16 NWLR (Pt. 738) I, Bello v. Diocesan Synod of Lagos (1973) 3 SC 103 and Tausel (WA.) Ltd. v. Xtoudos Services (Nig.) Ltd. (2002) FWLR (Pt. 126) page 954 at 973.
The 1st defendant/respondent ought to be estopped from asserting his right over this plot. Appellant urged the court to hold that the rule in Ramsden v. Dyson is applicable in this case because from the facts and circumstances of this case such as –
(a) The proximity of the place of work of the 1st defendant/respondent to the plot in issue.
(b) The development done by the appellant.
(c) The length of time between the period 1st defendant claimed the plot was given in 1992 to him till 2001, when he surfaced.
With the foregoing appellant finally urged the court to resolve issues 1 and 2 for the appellant.
In reply the 1st defendant/respondent’s counsel submitted that the trial Judge was not in error when he found that the 1st respondent was allocated plot BNA 10089 by LUAC in 1992. The learned counsel to the 1st defendant/respondent submitted that during the trial both panics narrowed the issues to just one.
“between the plaintiff/appellant and the 1st defendant/respondent. who was first to be granted the piece of land by the 2nd respondent.”
Both parties agreed and tendered their supporting documents from the bar. The parties also submitted their written addresses and judgment was delivered thereafter.
Learned counsel to the 1st defendant/respondent submitted further that the 1st defendant/respondent’s application was approved and recommended for grant of right of occupancy.
Counsel submitted that the 1st respondent’s application was approved by LUAC a body designated to do so. On the contrary the application of the appellant was not approved by LUAC.
The 2nd and 3rd defendant/respondent admitted in their joint statement of defence that LUAC allocated Plot BNA 10089 to the 1st respondent on 23rd July, 1992 and his application was being processed for purposes of issuing to him statutory right of occupancy.
2nd and 3rd defendants/respondents also admitted that the allocation of Plot BNA 10089 to the 1st respondent had not been revoked. The allocation of Plot BNC 310 to the appellant was later in time and as such the allocation to the 1st respondent should take precedence over and above that of the appellant.
1st respondent’s counsel also submitted that before the allocation of Plot BNC 310 that there were many references in exhibit stating that the plot might be already encumbered. However the officers of 2nd and 3rd defendants/respondents still went ahead to dismiss their finding and allocated Plot BNC 310 within 5 days of presentation of her application form.
Counsel urged the court to resolve this issue in favour of the respondents and dismiss this appeal.
Both parties have acknowledged that plot BNC 310 and Plot BNA 10089 are one and the same plot. Both parties also agree that Plot BNA 10089 was allocated to the 1st defendant/respondent on 23rd July 1992. Also that Plot BNC 310 was allocated to the appellant on an application dated 16th July. 1998.
The one issue identified by the parties in the trial court is still the issue. See Tangale Traditional Council v. Fawu (supra) where it was held that –
“A court is not allowed to embark on a voyage of discovery on its own. It must apply itself to the issues submitted to it by the parties.”
The history of this case has been catalogued by the parties in their briefs and submissions which is “who has a better claim to the plot?” It is not in issue whether the appellant and the 1st defendant are contesting for one and the same plot of land.
The 1st defendant/respondent was allocated Plot BNA 10089 on 23rd July. 1992. Looking at exhibit A the file for Plot BNA 10089 allocated to 1st defendant/respondent one can see the usual official preambles prior to the preparation of right of occupancy or even Certificate of Occupancy. The 2nd and 3rd defendants/respondents had to make sure that the plot was not encumbered in anyway. From exhibit A pages 12 – 23 one could see official internal memo trying to sort out a perceived encumbrance and how it was sorted out eventually. See also exhibit A page 13 where the site plan was drawn to scale identifying the beacon numbers.
The 1st defendant/respondent as per exhibit A did what he was supposed to do and the officers of 2nd and 3rd defendants/respondents were doing their official duties diligently until the file was misplaced in 1995. The misplacement of file for BNA 10089 by officials of the 2nd and 3rd respondents cannot be blamed on the 1st defendant/respondent. This misplacement obviously stalled the further processing of the 1st defendant/respondent’s allocation.
The appellant’s application of 16th July, 1998 was processed to allocation of plot within 5 days. She also paid for the processing of Certificate of Occupancy and went ahead to develop the plot. 2nd and 3rd respondents in their address to court submitted that the 1st defendant/respondent was allocated plot BNA 10089 in 1992 and that the same plot was erroneously allocated to the plaintiff/appellant.
I think that this captures the whole problem. The 2nd and 3rd defendants/respondents agreed in principle that the allocation of Plot BNC 310 was in error.
The appellant’s counsel had argued rather very strenuously that the 1st defendant/respondent was never allocated Plot BNA 10089 and as such did not accept any offer. However, on a closer look at exhibit A pages 3 – 8 it shows that there were 79 applications on the first list and they were all considered for allocation of land. A closer look would even indicate the following which was already in the minutes.
(1) The serial No. of the applicants.
(2) The Right of Occupancy (number).
(3) The name of applicant.
(4) Purpose.
(5) Location.
There can be no doubt that a proper and authentic allocation was one. It was from the plot No allocated to the 1st defendant/respondent was his file opened for processing. The 1st defendant/respondent’s file was being processed up till 1995 when the file was misplaced. This stalled the processing. The 1st defendant/respondent only noticed development in his plot in 2001 and he reported the incident and insisted that a temporary file be opened to deal with the perceived encroachment. See page 24 of exhibit A.
The 2nd and 3rd defendants/respondents have not revoked the allocation of plot BNA 10089 to the 1st defendant/respondent and as such his allocation still stands irrespective of a subsequent allocation of the same plot of land to the appellant.
A closer look at exhibit A page 19 and exhibit B page 7 will show that both extracts are from the same TPS 200. It appears as if one of the officers of 2nd and 3rd defendants/respondents was mischievous in his official duties. Plot BNC 310 is clearly out of tune with all the surrounding plots. It is the only plot around there that had BNC. Beside Plot BNC 310 is BNA 4171 and below it is BNA 9502. All around it all the plot are prefixed with BNA.
Whereas in exhibit A page 19 Plot BNA 10089 falls in correct sequence with all the other plots in both extracts of exhibits A and B.
I have no doubt in my mind that the officers who abridged the processes of allocation of plot to the plaintiff/appellant also neglected to do the proper investigations before the allocation of Plot BNC 310. The allocation of Plot BNC 310 appears not to have gone through the LUAC which is the body totally empowered to deal with such issues, Even though on page 8 of exhibit B an officer raised the alarm that Plot BNC 310 was identical to Plot BNA 10089, This alarm was quickly discountenanced and they proceeded with the processing of Plot BNC 310,
The plaintiff/appellant’s counsel had alleged that the 1st defendant/respondent was negligent in his processing of his application and as such should be estopped from claiming his priority of the equitable Interest both the appellant and the 1st defendant/respondent have.
I hold from the foregoing that the 1st defendant/respondent was not negligent in his dealings or processing of his allocation. Rather if there was anyone negligent it would be the 2nd and 3rd defendants/respondents who erroneously allocated BNA 10089 already allocated to the appellant. See the case of Emma Ilona v. Sunday Idakwo (2003) 12 MJSC page 35 at 40; (2003) 11 NWLR (Pt. 830) 53.
“where there are competing interests by two or more parties claiming the title to the same piece or parcel of land from a common grantor, the position both at law and in equity, is that such competing interests will prima facie rank in order of their creation based on the maxim qui prio est tempore potior est jure which simply means he who is earlier in time is stronger in law’”
See A.B. U. v. Fadinamu Trading Co. Ltd. & Anor. (1975) 1 NMLR page 42, Abidun Adelaja II. Olatunde Fanoiki & Anor. (1990) 2 NWLR (Pt. 131) page 137 and Auta v. Ibe (2003) 13 NWLR (Pt. 837) page 247.
The issue of estoppel does not hold water in this case as it has not been proved that the 1st defendant/respondent was in any way negligent.
It is trite law that a party relying on estoppel and or acquiescence must plead it. See Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) page 1. Where the equitable defences are not pleaded any evidence led in that regard goes to no issue and must be discountenanced. Emma Ilona II. Sunday Idakwo (supra). The 1st respondent also stated in his letter on exhibit A page 24 that he noticed that one of the sites is being encroached on by Plot BNC 310. After the 1st defendant/respondent confronted the appellant and during the investigations the appellant continued building until a “stop work” was issued.
See exhibit B page 29 minute A. See also exhibit D.
I hold that the 1st defendant/respondent has done nothing reprehensible in this matter. I therefore 1 and 2 on behalf of the defendants/respondents.
Issue 3
The learned counsel for the appellant contended that the trial Judge did not evaluate exhibit A and exhibit B properly and the state of the pleadings before he dismissed the case of the plaintiff/appellant. The arguments proffered by the appellants in this issue had been canvassed in issues 1 and 2 above.
The trial Judge in his considered judgment evaluated all evidence before him especially the exhibits. The trial Judge made copious references and comparisons from both files. I cannot fault the trial Judge I have also evaluated the evidence through the record of proceedings and the exhibit, I could not have reached a contrary conclusion. See the case of Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) page 182 where it was held.
“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which have been given to the totality of the evidence before him. Therefore in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it.”
See also Mogaji P. Odofin (1978) 4 SC 91: Joseph P. Abubakar (2002) 5 NWLR (Pt. 759) page 185: NTA P. Babatope (1996) 4 NWLR (Pt. 440) page 75, Duru v. Nwosu (1989) 4 NWLR (Pt. 113) page 24.
The trial Judge did not make a declaration as to the ownership of the plot. The trial Judge held in his judgment inter alia:
“I hereby refuse to issue the order of perpetual injunction sought by the plaintiff to restrain the defendants from any way interfering with or prejudicing the rights of the plaintiff in Plot BNC 310. I shall not issue to the plaintiff Certificate of Occupancy in respect of Plot No. BNC 310 which is identical with Plot No. 10089. The 1st defendant has better right to issuance to him of Certificate of Occupancy or title documents over the plot in dispute than the plaintiff.”
The trial Judge restrained himself from making a declaration.
He merely answered the question identified by both parties to be in issue. The trial Judge could not have issued an injunction against the respondent as prayed by the appellant.
“an injunction is normally granted to prevent a recurrence of the wrong complained of in an action.”
See Onwuka v. Ediala (supra). In the instant case, the respondent was held to be the first in time and as such no injunction can be ordered against him.
The learned counsel for the appellant argued strenuously that the trial Judge should have exercised his judicial Power to grant the appellant general damages or compensation and or refund of expenditure incurred on the said plot BNC 310.
The trial Judge held and I agree that the plot BNC 310 was erroneously allocated to the appellant. This is a pure case of double allocation which is common in the lands department. Double allocation generally occurs through the negligence of land officers in the exercise of their official duties.
For the court to grant any reliefs, it has to look at the claims of the plaintiff.
The claim of the plaintiff is as set hereunder.
“(i) An order of perpetual injunction restraining the defendants, their agents, servants, privies, from in any way interfering with or prejudicing the rights of the plaintiff in Plot No. BNC 310.
(ii) An order compelling the 2nd – 3rd defendants to issue to the plaintiff forthwith, Certificate of Occupancy in respect of Plot No. BNC 310.
(iii) Any other equitable or legal remedy that meets the justice of this case.”
The learned trial Judge refused to grant orders 1 and 2 prayed for. What is left is the omnibus prayer.
The defendants were not sued for negligence so the trial Judge could not find on negligence. It is only where negligence is pleaded and proved can damages be awarded.
This issue the appellant did not prove to the satisfaction of the court that it should be resolved in her favour. I also resolve issue 3 in favour of the respondents.
However, in the omnibus prayer, the court would take a cue from the Internal memo of the 2nd and 3rd respondents in exhibit A and exhibit B and order that 2nd and 3rd respondents shall find an alternative plot having discovered the obvious error made in the allocation of Plot BNC 310 to the appellant. The monies already paid by the appellant should be considered in the new allocation to be made to her. The allocation to be made shall take into cognizance the mode of business she is engaged with i.e. block moulding in the allocation.
I make no orders as to costs.
Other Citations: (2007)LCN/2355(CA)
