IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO

Transcription

1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO BEFORE HIS LORDSHIP: HON. JUSTICE JAMILU Y. TUKUR CLERK OF COURT: S. K. USMAN & OTHERS COURT NUMBER: 20 DATE: 18/03/2013 SUIT NO: CV/314/09 BETWEEN: CHIDOZIE EJIMAKONYE PLAINTIFF AND 1. ALHAJI ABDULAZAK 2. ALHAJI SAIDU 3. UNKNOWN PERSONS 4. BWARI AREA COUNCIL 5. INSPECTOR GENERAL OF POLICE DEFENDANTS JUDGMENT The Plaintiff claims against the defendant as endorsed on the writ of summons and statement of claim is as follows:- (1) A declaration that the plaintiff is the bonafide owner and therefore lawfully entitled to the immediate possession of all that piece or parcel of Land Measuring about 1,000m2 situate, lying and being at or known as Plot No. 82, Gbazango Layout, Kubwa, Abuja. And bounded by property beacon numbers PB 7244, PB 6988, PB7259, PB 7251 and back to the starting point and covered by right of occupancy No. FCT/BZTP/LA/M/900 (nee file number IM42383) (2) A mandatory order directing the 1 st, 2 nd and 3 rd defendants acting either by themselves or by their agents, servants, privies, assigns or any person or group of persons whatsoever and however called to vacate the said Land forthwith. (3) An order of perpetual injunction restraining the 1 st, 2 nd, and 3 rd defendants acting either by themselves or by their agents, servants, privies, assigns or any person or group of persons whomsoever and howsoever called from trespassing any further interfering with the 1

2 plaintiff s possession, enjoyment and use or exercise of ownership rights in or over the said Land. (4) N2,000, (Two Million Naira) as general damages for trespass and continuing trespass on the said land against the 1 st, 2 nd, and 3 rd defendants. (5) An order of perpetual injunction restraining the 5 th defendant acting either by himself or by his agent whomsoever and howsoever called by any designation or rank from further harassing, intimidating, arresting or detaining the plaintiff in respect of any and every matter connected with the ownership of the said land. Or, in the alternative to claim Nos. 1-4 above, the sum of N10,000, (Ten Million Naira) as general damages against the 4 th defendant for the tort of deceit. In proof of the case, the Plaintiff called one witness who testified as PW1 and adopted his witness statement on oath as part of his Evidence before this Court. Twelve documents were tendered, marked and admitted as Exhibits The 1 st, 2 nd and 4 th defendants filed their statement of Defence called two witnesses DW1 and DW2 who testify before this Court. Two documents were tendered, adopted and marked as Exhibits The facts of the case as disclosed in the Plaintiff s witness statement on oath are as follows:- That by a conveyance of provisional approval dated 10/7/96, the 4 th defendant granted a customary right of occupancy in respect of Plot No. 82 measuring about 1000m2 at Gbazango Extension Layout, being at Kubwa within FCT, Abuja to one Oforkaja Austine. That in the year 2000, the property was marketed to the Plaintiff by Panalink properties Limited through one of their managers, Mr. Aduphus Obi and after useful negotiations and legal search by his Solicitor at the 4 th defendant s office, the Plaintiff paid the agreed purchase price of N150, (one hundred and fifty thousand naira). The receipt and sale agreement are both dated 6/6/2000 2

3 That the Plaintiff took necessary steps to perfect his interest on the property and the 4 th defendant effected a change of ownership of the property. That sometime in 2004, a native of Gbazango who claimed that the Plot was his father s farmland forcefully came into the property, partitioned and sold it to different people. The plaintiff filed a petition at the Development Control Department of FCDA. They later visited the site marking the buildings and serving the trespassers notice to produce their document and on failing to do this, in 2006 the FCDA Development Control demolished the one building which was the first to be illegally erected on the property. The other illegal occupants approached the Plaintiff and they negotiated and promised to vacate the Land but did not do so until the later part of 2007 when he was informed by one of the illegal occupants called Tailor that another man came to the site with papers saying that the property belonged to him and the plaintiff was invited by the Traditional Chief for discussion. The plaintiff wrote another petition to the FCDA Development Control Department for the demolition of the remaining structures. In early 2008, the Development Control marked and served the 3 rd Defendants notice to quit the property. Shortly after these notices were issued, some people trailed him with some Policemen to his Church on a petition written against him by the 1 st defendant acting in concert with the illegal occupants. That I was invited to the Police Zonal Headquarters at Zone 3 Wuse, Abuja on 11/2/08 and since then the police are yet to conclude investigation into the matter. In compliance with the rules of this Court, Learned Counsels to the Plaintiff and the 1 st, 2 nd, and 4 th defendants filed and adopted their final written addresses. I should however point out that both the 3 rd and 5 th Defendants were not represented in this suit and neither did they enter appearance despite having been served with necessary Court processes. 3

4 In his written address, learned counsel for the 1 st, 2 nd and 4 th defendants formulated a Lone issue thus:- Whether from the claims, the Evidence before the court and the documents tendered the plaintiff has prove his case. On this issue, learned counsel submit that the Plaintiff who pleads title has a duty of proving the title. In the instant case, where the parties are not and adidum on the identity of the Land in dispute, the burden is on the person claiming title to prove the identity of the Land. He referred this Court to the case of Aremu Vs Adetoro (2007) 11 MJSC pg 159 at 160. Holding No.1. He stated further that the plaintiff under Cross examination concedes that Bazango Extension was later merged with Bazango Layout thereby admitting that there are two areas in Kubwa one of the Land is Bazango Layout and the other Bazango Extension Layout. He cited the case of Gbadamosi Vs Dairo (2007) 3 MJSC Part 1at Pages 4-5. On the point. Learned counsel further submit that the provisional approval relied on and admitted as Exhibit 1 is in Gbazango extension layout,while exhibit 3 the sales agreement letter to him is in respect of a land situated at Gbazango layout. Furthermore, Exhibit 4, the receipt of payment, dated 01/04/2001 relates to payment made in respect of Bazango Layout and not Bazango Extension Layout. Learned counsel submit further that there is no Evidence to show that the plaintiffs Land lying at Gbazango Extension Layout later metamorphosed into the 1 st defendant Land lying at Gbazango layout. Learned counsel submit further that, there is no Evidence before the Court showing how the plaintiff Land measuring 1000.sq meter as per Exhibit 1, grows in space to become the 1 st defendants land measuring 1500sq meter as per Exhibit 11. 4

5 Learned counsel submits that there is no connection between the Land claimed by the plaintiff and the Land own by the 1 st defendant. Learned counsel said it is settled that cases on declaration of title to land must succeed on the strength of the plaintiff s case and not the weakness of the defence. He referred to the case of Gbadamsi Vs Dairo (Supra) holding No. 6 at Page 6. He said in the instant case, the Defendant pleads that he bought his land from the 2 nd Defendant through the agency of one Aliyu Salihu a neighbour to the land in dispute. The 2 nd Defendant tendered the Conveyance of Provisional approval issued to Ayuba Umar, the Original allotee who sold to him. The provisional approval was issued by AMAC and dated 2/2/95 while the provisional approval purportedly issued to Oforkaja Austine is dated 10/7/1996. Learned counsel submit that the 1 st Defendant s provisional approval predates that of the plaintiff by One Year and Five months. He submitted that it is very clear that the plaintiff has not only woefully failed to prove the exact identity of his Land but the land he is claiming is of doubtful roots. Learned counsel submit that, this case is Fought largely on documents and not Oral Evidence. The plaintiff pleads his provisional approval, his sale agreement of the land, revenue receipt to Bwari Area Council and provisional approval (Change of Ownership) his TDP and letter of conveyance of provisional approval the 1 st defendant pleads and tendered his provisional approval. All the claims of the plaintiff and the evidence adduced thereon and the claims of the defendant together with his defence thereon are base on these documents and no Oral Evidence can be admitted to add to, subtract, alter or amend the content of this documents. The documents speaks for themselves. He refer to Section 128 (1) of the Evidence Act

6 He urge this Honourable court to discountenance any oral evidence or argument based thereon tendering to alter or add to the content of these document. He concluded by urging the Court to answer the only issue for determination in the negative and to hold that the plaintiff has failed to prove his case and to dismiss same with cost to the 1 st Defendant. In the Plaintiff s counsel written address, learned counsel also formulated one issue for determination:- Whether on a proper and dispassionate evaluation of the Oral and documentary Evidence by the parties, the plaintiff has proved his case as to be entitled to the reliefs sought. In arguing this issue, learned counsel said it is settled law that in all civil suits the burden is on the plaintiff who has made a positive assertion to prove it by relevant, necessary and credible evidence. He referred to sections 131 and 133 of the Evidence Act, also the cases of:- Iwuchukwu Vs Anyanwu (1993) 8 NWLR Part , Lewis & Peart Vs Akhimien (1976) 7 SC 157 at and Duru Vs Nwosu (1989) 4 NWLR Part Submit also that the evidential burden shall, in all Civil Proceedings, be discharged on the balance of probabilities. Section 134 of the Evidence Act also the case of:- Eliase Vs Omo-Bare (1982) 5 SC 25, Woluche Vs Gudi (1981) 5 SC 291. Counsel relying on the decision in Idundun Vs Okumagba (1976) 9-10 SC 227. Said a plaintiff who claims a declaration of title to land can prove same through any of the following Five ways:- (a) By Traditional Evidence. (b) By production of documents of title. (c) By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner. (d) By Proof of Evidence of long possession and enjoyment of Land. 6

7 (e) By proof of possession of connected or adjacent Land (antiquity rule) Learned counsel said it is the case of the Plaintiff that he purchased the disputed Land, Plot 82 Gbazango Layout (not Bazango Layout or Bazango Extension Layout) situate at Kubwa within the present day Bwari Area Council, Abuja, from the Original allottee one Oforkaji Austine, and that Exhibit 10 issued then by AMAC which had control over Lands in Kubwa at the time of the said allocation. He added that at the time the land was allocated to Oforkaji Austine by Amac in 1996 the land was designated as lying at Gbazango Extension Layout Kubwa, the 4 th defendant who in 2001 issued Exhibits 1, 4 & 5 in favour of the plaintiff had explained on the plaintiff s inquiry, that the layout has been merged and now designated Gbazango Layout as against the AMAC designated Gbazango Extension Layout. Furthermore, the plaintiff exercised his ownership rights over the Land by writing several petitions between following which some of the building on the land were demolished by FCT Development Control Department and that it was after the removing buildings were marked for demolition that the 1 st defendant wrote Exhibit 12 against the plaintiff. Learned counsel submit that, the plaintiff has established his root of title by the consistent, cogent and credible Oral and documentary Evidence he led at the trial. These pieces of Evidence have not been contradicted by the defence and the Court with respect is urged to accept them as proof of the issue in respect of which the Evidence is given. Otuedon Vs Olughor (1997) 75 CNJ 411 at 434 and Ololunde Vs Adeyoju (2000) 10 NWLR Part at 572, 589. Learned counsel stated that the 1 st defendant in fact denies knowledge of the land being claimed by the plaintiff. However, under cross examination, both DW1 & DW2 admitted, contrary to their pleadings that they know the land being claimed by the Plaintiff. Also Exhibit 13 made in favour of a certain Ayuba Umar, as the 1 st defendant s root of title relates to Plot No 82 of about 7

8 1,500m2 Gbazango Layout not Gbazango Extention Layout. Learned counsel concedes that the plaintiff must succeed on the strength of his case and not weakness of the defence, however where the defence as such has raises issues which tend to lend support to the plaintiff s case, then such determinations go to further strengthen the plaintiff s case and a trial court cannot shut it s eyes to those relevant issues. See Alikor Vs Ogwo (2010) 5 NWLR Part 1187 at 312, Fabunmi Vs Agbe (1985) 1 NWLR Part Learned counsel said the concept of burden of proof on the pleadings rests upon the party, whether plaintiff or defendant who substantially asserts the affirmative of the issue. See Imam Vs Robinson (1979) 3-4 SC1, Eleno Vs Omolade (1968) NMLR 359, Atane Vs Amu (1974) 10 SC 237, Fashanu Vs Adekoya (1974) 6SC 83 and Kate Enterprises Ltd Vs Daewoo Nig. Ltd. (1985) 2 NWLR Part Learned counsel is of the opinion that there is no document of title whatsoever before the court linking the 1 st defendant to Plot No. 82 Gbazango Layout, Kubwa, Abuja being claimed by the plaintiff. He stated that it is the case of the 1 st defendant that the 2 nd defendant was the Original allottee of Exhibit 13. However, this claim is at variance with the content of Exhibit 13 which bears Ayuba Umar, not Alhaji Saidu (the 2 nd defendant) as the Original allottee. Also though both DW1 and DW2 asserted under Cross examination that the 2 nd defendant sold the disputed Land to the 1 st defendant at a consideration of between N1.4 Million and N1.6 Million, the 2 nd defendant did not issue any receipt and both DW1 and DW2 claimed the agreement was with their Lawyer. To this issue counsel said it is settled from the provisions of Section 167 (d) of the Evidence Act that the Court is entitled to presume that Evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. He relied on the case of Awosile Vs Sotunbo (1986) 3 NWLR Part

9 Learned counsel further submitted that the 1 st defendant in his pleading and witness statement on oath claims that he bought the Land in 2007 while Exhibit 12 written by the 1 st defendant state that the 1 st defendant as of 11 th February, 2008 had not bought the land from the 2 nd defendant but merely making arrangement. To this learned counsel said it is settled Law that a party is not allowed to argue against the content of his own document and he relied on:- UBN PLC Vs Ayodare & Sons Ltd (2007) 13 NWLR Part & 7. Adda Vs Liman (2012) 4 NWLR Part The 1 st defendant is bound by his assertion in Exhibit 12 being his own document since it s a cardinal principle of Law that, in the construction of documents, a person is presumed to intend what he has in fact said or written down. See UBN Vs Nwokolo (1995) 6 NWLR Part , UBN Vs Sax Nig. (1994) 8 NWLR Part Learned counsel said the 1 st defendant s adverse claim to the disputed land is riddled with manifest inconsistencies and contradictions as pointed out above. He referred to the following cases:- Dogo Vs The State (2001) 1SCNJ 315 at 336, Lines 19-34, Igbi Vs The State (2000) 3 NWLR (Part at 187, Paragraphs F - G Per Ayoola and Okereke Vs The State (1998) 3 NWLR Part at 91 Paragraphs B C. Learned counsel respectfully submits that the combined effect of sections 2 & 3 of the illiterate Protection Act, DW1 & DW2 statements on Oath are incompetent and liable to be set aside by the Court for the failure of Aliyu Musa Yawari to insert a jurat containing his address thereon. See Agip (Nig) Ltd Vs Agip Petroleum Int l (2010) 5 NWLR Part , SC. On the submission of the Defence counsel that the Plaintiff s action is a nullity for failure to serve a pre-action notice on the 4 th defendant which was not supported with any statutory or judicial authority. 9

10 This is not the correct position of the law as stated in Feed & Food Farms (Nig) Ltd. V. NNPC (2009) 12 NWLR Part Also Exhibit one was admitted without Evidence as to the where about of the original sequel to the withdrawal of the objection to it s admission on 11/11/2010 Furthermore Exhibit 5 is settlement proof of the identity of the Land. See Ezeokeke Vs Uga (1962) 1 ALL NLR 4 & 2, Okolo Vs Nwamu (1973) 2 SC 59 and Nwokorobia Vs Nwogu (2009) 5 SCNJ 218 at 241. He urged my Lord to answer the sole issue formulated in the affirmative and enter judgment for the plaintiff against the defendants. Learned counsel to the 1 st, 2 nd and 4 th defendants filed a reply on points of Law dated 3 rd December, I have perused the said reply and it is my view replicate the issues of facts and not Law. The only issue of Law raised in the reply touch on the provisions of Sub Section of the 1999 Constitution as amended and 13 (1) of the Federal Capital Territory Act Cap 128 LFN 2004 relative to the status of the 4 th defendant as a Local Government and the requirement of service of Per-action notice on the 4 th defendant before initiating the present suit. Learned counsel submits on this point, that the service of pre-action is a condition precedent which must be met before the 4 th defendant can be sued, the 4 th defendant having pleaded same in Paragraph 11 of the joint statement of defence of the 1 st, 2 nd and 4 th defendants. Learned counsel urge me to dismiss the suit. Now in their written addresses before me learned counsels on both sides have raised two Preliminary issues touching on the competency of the suit and the written statements on Oaths of both the DW1 and DW2. In the address before me on the issue learned counsel for the plaintiff submits that the written statements on Oaths of both the DW1 and DW2 are incompetent for the failure of learned counsel for the defendants Aliyu Musa Yawuri who interpreted same to insert a jurat containing his address therein. 10

11 Learned counsel submits that the non compliance violates the provisions of Section 2 and 3 of the Illiterate Protection Act. I have examined the written statement on Oath of the DW1 and DW2 which are the subject of the objection of learned plaintiff s counsel and I observed the existing of a jurat in both which shows that the affidavit was read, interpreted and explained to the deponents from English to Hausa by Aliyu Musa Yawuri Esq who is fluent in both Languages and the deponents in each case expressed that the affidavit represent their true statement before they signed. Now I am of the view that the jurat has satisfied the requirements of the provisions of Section 2 and 3 of the said Illiterate Protection Act in its present form. The absence of an address of the counsel is in my view a mere defect as to form and not substance where it is shown on the fact of the affidavits that they have been duly sworn before an authorised officer. Section 113 of the Evidence Act 2011 has given discretion to this Honourable Court to permit an affidavit to be used notwithstanding that it is defective in form, if I am satisfied that it has been sworn before a person duly authorised. Now as I mentioned earlier the two statements on Oath on their faces herein shown to have been sworn before a Commissioner for Oath of this Honourable Court and Evidence of payment of same is also reflected on the affidavits. I am therefore satisfied that the two witness statement on Oath are competent. In saying this I find myself in company with the statement of the Law on the point made by my Lord Ogunwumiju JCA in the case of Abiodun Vs C.J Kwara State (2007) NWLR Part at 145 My Lord states:- By virtue of Section 84 of the Evidence Act (Section 113 of Evidence Act 2011) the Court may permit an affidavit to be used 11

12 notwithstanding that it is defective in form according to the Evidence Act if the Court is satisfied that it has sworn before a person duly authorised. These may be in the form of an improper title or heading of the affidavit, erasure or alteration, none indication of full name, profession, residence e.t.c failure to append a signature or Illiterate Jurat e.t.c. The above instances, though not exhaustive constitutes examples of defect in form as opposed to defect in the substance of the affidavit. The objection of learned counsel to the plaintiff on this score is with due respect unmeritorious and same is hereby discountenanced by me. On his part learned counsel for the 1 st, 2 nd and 4 th defendants raised objection to the competency of the suit on the ground that the plaintiff failed to serve the 4 th defendant with a pre-action notice in line with the provisions of Section 125 of the Niger State Local Government Edict of 1976 applicable within the FCT by virtue of the provisions of Section 13 (1) of the Federal Capital Territory Act Cap 128 LFN Now Section 125 of the Edict (now Law) provide as follows:- (1) No suit shall be commenced against a Local Government until one month written notice of intention to commence the same has been served upon the Local Government by the intending plaintiff or his agent. (2) The notice referred to in (1) of this Section shall states the cause of action, the name and place of abode of the intending plaintiff and relief which he claims. Now from the records it is not a subject of dispute that no pre-action notice had been served on the 4 th defendant in line with the provisions of Section 125 of the Edict. In point of fact learned counsel to the plaintiff in his address conceded to the point. He however submitted on the authority of the Supreme Court decision in Feed and Foods Farms (Nig) Ltd Vs NNPC (2009) 12 NWLR Part

13 Page 387 that the service of a pre-action notice is a personal, private or domestic right of the party to be served and that the failure to serve same cannot render the action of the plaintiff incompetent for all purposes. Learned counsel urge me to so hold. Now looking through the authorities the position taken by learned plaintiff s counsel can only be sustain where the defendant decide to waive the irregularity by failing to raise it either by motion or pleading same in the statement of defence. In the case of Ntiero Vs NPA (2008) All FWLR Part 430 Page 688 referred to me by learned defence counsel, the Supreme Court in deciding on the questions states:- The effect of non service of a pre-action notice where it is statutory required is only an irregularity which however renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the statement of defence. If a defendant refuses to waive it and he raises it then the issue becomes a condition precedent which must be met before the Court could exercise it jurisdiction. In the instant case the defendant did not waive the one month required notice therefore the trial Court erred by treating it as irregularity and granting the plaintiffs claims. Now in the instant case the 4 th defendant raised the issue in Paragraph 11 of their joint statement of defence as a preliminary objection to the competency of the suit. It is interesting to note that the plaintiff did not joined issue with the 4 th defendant on this as no reply was filed in response to the defendant s statement of defence. Looking at the circumstance of this case, it is clear that the suit is incompetent for failure to serve the required pre-action notice on the 4 th defendant. 13

14 The service of the pre-action notice on the 4 th defendant is a condition precedent which must be met before this Court can exercise its jurisdiction. I am tempted to consider the issues raised in the substantial suit but where as in this case I find that the suit is incompetent, i do not think I have the jurisdiction to delve into the issues raised by learned counsels in the substantive suit. In the event and for the reasons given in this judgment, I am of the view that this suit is incompetent and is accordingly hereby struck out. A.C Ajaku for plaintiff. Lora Obieawe for defendants. Signed. Hon. Judge Date: 18/03/