Post on 14-Jul-2020
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IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT MAITAMA
BEFORE HIS LORDSHIP: HON. JUSTICE A. S. UMAR
DELIVERED ON 24TH DAY OF MARCH, 2016
SUIT NO. FCT/HC/CV/1186/06
BETWEEN:
MORENIKE OREDOLA OLAWUNMI AYO - PLAINTIFF
AND
1. HONOURABLE MINISTER
CHAIRMAN FEDERAL CAPITAL
DEVELOPMENT
AUTHORITY (FCDA) BOARD - - DEFENDANTS
2. FEDERAL CAPITAL DEVELOPMENT
AUTHORITY (FCDA)
3. MR. FRANK N. NWEKE
JUDGMENT
By a writ of summons dated 27th day of February, 2006 the plaintiff
brought this action against the defendants claiming reliefs as thus:
1. A declaration that the purported revocation of plaintiffs
statutory right of occupancy over plot 1464, cadastral zone
AO4 within Asokoro District of Federal Capital Territory with the
right of occupancy No. FCT/OD/1933 before recertification and
right of occupancy No: FCT/ABU/BO/11027/ (after
recertification) is null, void and of no effect whatsoever.
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2. A declaration that the plaintiff is the lawful allotee and
therefore entitled to a statutory right of occupancy over plot
No: 1464, lying and situate at cadastral zone AO4, Asokoro
district FCT or any other plot of land for that matter in
compliance with the provision of the constitution of the Federal
Republic of Nigeria 1999 particularly at section 44 and/or land
use Acts 1978 particularly at sections 5 (1)(a), 8 and 15 (a) &
(b).
3. An order of mandatory injunction mandating the defendants
to complete the recertification process of plot No: 1464,
cadastral zone A04, Asokoro district, Abuja FCT in favor of the
plaintiff or his attorney, the statutory fees and other
recertification expenses having been paid.
4. A declaration that the purported reallocation of No: 1464
cadastral zone A04 and the issuance of certificate of
occupancy to the 3rd defendant is null and void and of no
effect whatsoever.
5. A declaration that the demolition of the plaintiff’s developed
structures on plot No. 1464, cadastral zone AO4, Asokoro
district, Abuja FCT on 17/04/2007 by the 2nd defendant on the
order of the 1st defendant is illegal and therefore amounts to an
act of trespass.
6. An Order of perpetual injunction restraining the defendants,
their assigns, agents, or privies from further interfering with the
progress of work in developing the plot of land by the plaintiff
except by way of inspection to ensure compliance with the
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approved building plans and/or other regulations as provided
for in section 11 of the land Use Act, 1978 or any other
governing statutes.
Parties filed and exchanged pleadings and trial thereafter
commenced in the matter.
Briefly, from the facts as submitted by the parties, the plaintiff
case goes as thus:
The plaintiff was allocated a residential plot of land in Asokoro
District measuring about 3, 289 square meters, known and lying
at plot No. 1464, cadastral zone AO4, Asokoro District, Abuja.
According to the plaintiff he paid the fee of N3, 384,707.27
which is 100% of the fees for the processing of the certificate of
occupancy and other sundry fees to the 1st& 2nd defendants.
Following the payment, the plaintiff was issued with a site plan
which he used in processing setting out, approval over the
property was also approved and given authority to commence
development and thereafter the agents of the 2nd defendant
came and marked the plot for demolition on 24th February,
2006 after chasing everybody out.
At development control of the 1st and 2nd defendant the
plaintiff was informed that his property was revoked by the 1st
defendant in a general revocation exercise of vacant plots of
land in federal capital territory for no development.
The plaintiff according to him told the development control
that he was developing the property and that vacant plot
cannot possibly be marked for demolition.
It is the case of the plaintiff that he was not served any notice
of intention to revoke neither was notice of revocation in
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writingserved other that the oral information given to his
attorney’s managing director on 24/02/2006.Sequel to the
above, the plaintiff commenced this action on 28/2/2006.
To prove his case the plaintiff called two witnesses, namely Rev.
Linus NzedebechukwuUkachukwu who testified as pw1, and
one EmekaOfor as pw2.Pw1 adopted his witness statement on
oath on 19/10/09 and the following documents were tendered
and admitted as thus:
1. The power of attorney dated 6th October, 2004, donated by
Morenike O. Olawunmi Ayo to M/s Famas services ltd to
Alhaji Umar Kareto Lawan admitted as “exhibit B”
2. Power of attorney donated by m/s Famas service ltd to
Alhaji Umar KaretoLawan admitted as exhibit b
3. The power of attorney dated 15th February, 2006 donated by
Alhaji Umar KaretoLawan to Lingo Nigeria Ltd as exhibit c.
4. Letter of offer issued to the plaintiff by the 1st and 2nd
defendants admitted as exhibit E.
5. Bills issued to the plaintiff by the 1st and 2nd defendants as
exhibit F.
6. Approval building plan of the plaintiff by the 1st and 2nd
defendants admitted as exhibit G.
7. Setting out approval issued to the plaintiff by the 1st and 2nd
defendants as exhibit H.
8. Evidence of recertification process issued to the plaintiff by
the 1st and 2nddefendants admitted as exhibit I (1&2)
respectively.
9. Stamp duty receipt, admitted as exhibit J under cross-
examination.
Pw1 was thereafter cross-examined by the defendants.
The 1st and 2nd defendants did not call evidence.
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The 3rd defendant testified as DW1 on 20/05/13 which he concluded
on 17/03/2014 wherein he tendered the following documents:
1. Exhibit N being the statutory Right of occupancy dated
9/11/2006.
2. Exhibit O receipt of AGIS issued to the 3rd defendant by the 1st
and 2nd defendants.
3. Exhibit P was the certified True Copy of the certificate of
occupancy issued to the 3rd defendant by the 1st defendant
and 2nd defendants.
4. The building plan was admitted as Exhibits Q.
5. The building plan receipt of payments, admitted as exhibit
R1-R4.
DW1 was cross-examined by both the plaintiff and the 1st and 2nd
defendants.
At the end of trial, the court ordered for final written addresses of the
parties and the case was adjourned for judgment.
The 3rd defendant formulated issues as for determination as follows:
1. Whether the suit as presently constituted is competent to clothe
the court with relevant jurisdiction to determine same.
2. If issue 1 above is answered in the affirmative, whether the
court can indeed grant any/all of the claims of the plaintiff.
ISSUE 1
Learned counsel to the 3rd defendant OnyebuchiObeta argued that
in determining this question, the 3rd defendant shall pose and
attempt to answer the following questions:
a. Whether there exists in this suit a valid writ of summons upon
which the present action is predicated to invoke the doctrine of
lispendens?
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On A above, counsel contended that the plaintiff filed the writ on
28th February, 2006 purportedly by MorenikeOredolaOluwunmi Ayo.
After filing, the purported plaintiff abandoned the writ until after
14months when on 30th March, 2007, he served the 1st and 2nd
defendants with the dead/expired writ of summons without first
seeking and obtaining the Order/leave of the Honorable court
extending the validity of the writ. When by a notice of preliminary
objection dated 16th April, 2007, the 1st and 2nd defendant
challenged the jurisdiction of the honorable court to entertain the
suit based on invalid writ of summons served on them, the purported
plaintiff vide a motion exparte dated 18th April, 2007 and filed on 19th
April, 2007 applied to this honorable court for an order renewing the
writ by extending its validity. This court granted the prayers sought in
that exparte application of the purported plaintiff.
He posed the question whether the court can make an order to
renew or extend the life of a writ of summons which has been served
on the defendants as dead/expired writ? He thinks not. He argued
that the order of court extending the validity of the writ of summons
dated 27th February, 2006 and filed on 28th February, 2006 by six
months effective from 19th April, 2007, he wonders, what then
happened to the period between 28th February, 2007 and 18th April,
2007 when the writ of summons lay dead in the court? Whether there
was any action pending in the honorable court within this 49 days?
He respectfully did not think so. He cited the provision of Order 4 Rule
16 (1-4) of the Rules of this court.
He contended that going by the above provision, there is a
fundamental incurable disconnect between the original writ upon
which the present suit is predicated and the subsequent renewal
and or extension of the validity of the writ. He argued that the court
lacked the powers to extend the validity orrenewed the life of a
dead/expired writ of summons which had already been served on
the defendants. If this is so, then it follows that the present action is
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predicated on nothing or better still an invalid writ of summons.
Therefore there exists no writ of summons upon which this present
action is predicated. He referred the case UAC V MACFOY (no
citation)
He argued that a party served with a dead writ of summons cannot
be caught up with the doctrine of lispendens as this doctrine
presupposes that certain condition must have been met for it to
apply. He referred the court to the case of Mr. KolawoleOronti V Alh.
SA Onigbanjo (2012) 12 NWLR (part 1313) pg 23 at 36-37.
He therefore urged the court to hold that there is no live writ of
summons in this suit upon which the present action is predicated and
on that ground strike out the suit.
Whether there is a valid plaintiff in this suit?
Counsel defined what a suit meant in the Black’s Law Dictionary, 6th
Edition, at page:
“a generic term, of comprehensive signification, referring to any
proceeding by one person or persons against another or other in a
court of law in which the plaintiff pursues, in such court, the remedy
which the law affords him for the redress of an injury or the
enforcement of a right, whether at or in equity”
Counsel argued that in every suit, there must be at least two parties
and in any civil suit, there must be a valid plaintiff and defendant.
According to Order 2(1) of the Rules of this court “proceedings shall
be commenced by writ where a claim is:
a. Made by a plaintiff for any relief for any tort or other civil
wrong……..”
According to counsel, in the instance case, a purported plaintiff
“MorenikeOredolaOlawunmi Ayo” filed a writ of summons in
February, 2006, and by a motion on notice dated 25th June, 2007
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sought leave for an order of this court amending the capacity in
which the plaintiff was suing to now read
“MorenikeOredolaOlawunmi Ayo suing through his attorney LINGO
NIGERIA LIMITED. That a cursory look at the applications, pleading
before this court, the evidence led by the plaintiff during trial and
the exhibits tendered and admitted by the court particularly exhibits
A-D shows that the basis for this suing capacity of the plaintiff is that
its title in the subject matter is rooted in exhibit A-D.
(a) Exhibit A is a Power of Attorney between
MorenikeOredolaOlawunmi Ayo and M/s Famas services
ltd dated 6th October, 2004 and registered as No. 85 at
page 85 in volume 40 PA in the Federal Capital Territory
Land Registry on 28th April, 2005 and which does not give
the Donee any power whatsoever in the eleven (11)
CLAUSES spelling out the functions/ powers of the Attorney
to appoint/constitute any other attorney.
(b) Interestingly too, exhibit B is the power of Attorney
between M/s Famas Services ltd and
AlhajiUmaruKaretoLawan undated but registered as FC 84
at 84 in volume 46PA on 29th June, 2005 which also does
not make any provisions for the Donee to
appoint/constitute any other attorney to carry out any
acts whatsoever as it affects the subject matter.
(c) Exhibit C which is the Power of Attorney between
AlhajiUmaruKaretoLawan and lingo Nigeria Ltd dated 8th
September, 2005 and unregistered gave the Attorney
under clause N of the functions power to delegate the
power contained herein so as to exclude the legal maxim
“delegatus non potestdelegare”
(d) Exhibit D finally is the power of Attorney specifically given
to Lingo Nigeria Ltd by UmaruKaretoLawan for the
purposes of this action to enable the attorney sue.
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Counsel stated that it is laughable and ridiculous that someone is
attempting to give what he does not have against the
established legal maxim “nemodat quad non habet”
He stressed that if UmaruKaretoLawan did not have power to
delegate the power contained in exhibit B to Lingo Nigeria Ltd,
just as m/s Famas Services had no power under exhibit A to
delegate the powers contained therein to UmaruKaretoLawan
and Pw-1 has during cross examination expressly admitted that he
has never met MorenikeOlaredoOlawunmi Ayo, and that he does
not know the said person.
Hecontended that MorenikeOredolaOlawunmi Ayo has no
Attorney known as Lingo Nigeria Ltd. He submitted that there is no
plaintiff in this suit as presently constituted since the purported
plaintiff on record is not the Attorney of
MorenikeOredolaOlawunmi Ayo and has no power whatever to
bring this action.
ISSUE 2
Whether the court can indeed grant any/all the claims of the
plaintiff as endorsed in the further amended statement of claim.
Counsel posited that the plaintiff in this suit brought the action in
February, 2006 claiming as per the writ of summons and statement
of claim, the following two (2) reliefs namely:
1. A declaration that the purported revocation of his statutory
right of occupancy over plot 1464 Asokoro and more
particularly described in paragraph (1) above is null, void
and of no effect whatsoever.
2. An order of perpetual injunction restraining the defendants
their agents or privies from demolishing or in any way
interfering with the progress of work in developing the plot of
land except by way of inspection to ensure compliance
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with the approval building plans and/or other regulation. He
stated that the writ of summons and statement of claim
were however subsequently amended through interlocutory
application hence the present reliefs and Frank N. Nweke
was joined as 3rd defendant.
According to counsel, from the foregoing, it is clear that the
purported plaintiff under the cloak of amendment technically
brought a new action.
He contended further that all the claims of the plaintiff against
the defendant and more particularly the 3rd defendant are with
respect to issues that crystalized and action taken after the
institution of this suit. He answered in the negative and said
cause of action that gave rise to the plaintiff’s claim in the
amended writ of summons/statement of claim particularly
against the 3rd defendant arose after 28th February, 2006.
He argued that even the doctrine of lispendes cannot apply to
affect the title of the 3rd defendant or even the revocation of the
plaintiff’s title and subsequent demolition by the 1st and 2nd
defendant because no valid action was pending in court to notice
of the defendants at the material time.
Learned counsel submitted that a plaintiff is not allowed to amend
his writ of summons/statement of claim to introduce new cause of
action that arose after he had instituted his action. He cited General
Yakubu Gowon V Mrs. Edith i. Ikeokongwu& 2 Ors (2003) 6 NWLR
(PT815)
He further argued that joining the 3rd defendant to this suit on
15/01/09 was done in error as the claims against him in the suit
emanate from an cause of action that arose after the original suit
was started.
He concluded by saying that this suit as originally constituted before
the amendment in issue was merely speculative as even the
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purported revocation has not taken place at the time of its
commencement and therefore ought to be struck out.
The 1st and 2nd defendants in their final written address formulated
issues for determination as follows:
1. Whether from the pleadings of the parties and the evidence led
in this matter, the plaintiff has proved that he is the bonafide
and subsistingallottee of the property, the subject matter of this
suit.
2. Whether the plaintiff has established his entitlement to the
special damages sought.
ISSUE 1
Learned counsel to the 1st and 2nd defendants Alexander Ejesieme
Esq. contended that the plaintiff pleaded at paragraph 4 of the
amended statement of claim thus:
“the plaintiff avers that by virtue of allocation dated 19th
September, 2003 issued to him by the then Hon. Minister of FCT, he
became seized of and entitled to the statutory Right of
Occupancy to the plot of land described in paragraph 1 above”
Counsel submitted that the paragraph which remains the
stanchion on which the plaintiff’s case rested was not denied by
the 3rd defendant at all in the 3rd defendant’s Statement of
defense. He said that on the part of 1st and 2nd defendants, they
did not call any witness to substantiate their pleadings to the
contrary and it is trite that pleading on which no evidence was
led, goes to no issue. He cited the case of Njoku V Eme (1973)5
SC. 293. He posited that the effect of the forgoing is that all the
parties admitted that the plaintiff was allocated the property by
virtue of the letter dated 19th September, 2003 which was
tendered in evidence and marked exhibit E.He submitted that
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facts admitted need no proof in accordance with section 123 of
the Evidence Act, 2011.
Flowing from the above premise, counsel argued that the only
question that remains to be answered is whether the plaintiff’s title
was revoked as indeed nothing can expropriate the right of the
plaintiff over the property except by way of valid revocation. It is
only upon the resolution of this question that the propriety of any
allocation made to the 3rd defendant or any other person over
the same plot can be determined.
Again, the 1st and 2nd defendants did not lead evidence, thus the
only recourse is to be had to the defense of the 3rd defendant. He
recited paragraph 19 of the statement of claim as thus:
“the plaintiff avers that up till now, no evidence of intention nor
notice of revocation in writing other the oral information given to
his attorney’s managing director on 24/02/2006”
He argued that the above paragraph was also not denied at all
by the 3rd defendant in his statement of defense. The effect is that
the matter ought to terminate at this point as not only that there
was no denial of the averments no evidence was led by the
defendants to counter that position.
He contended firstly, there was indeed no existing plea of valid
revocation, neither was there any evidence of valid revocation
by the defendants. Secondly, the pleadings of the plaintiff to the
effect that his land was improperly revoked and that there was no
revocation in law remains undaunted and that it is only when a
notice of revocation is shown to have been issued and served in
accordance with the provisions of section 28 and 113 of the Land
Use Act, 1978 that it can be said to proper.
He added that it is trite that failure to comply strictly with the
provisions of the Land Use Act, 1978 on revocation renders any
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revocation purportedly done null and void. That being the case
the there is no gainsaying that the plaintiff’s right of occupancy
remains extant.
Counsel contended that the evidence in this case shows that the
allocation made to the 3rd defendant was in 2006, three years
after the plaintiff was allocated the property. Having not shown
that the plaintiff’s title was validly revoked, the allocation made to
the 3rd defendant cannot only expropriate the plaintiff’s title over
the property but it is in effect invalid.
Learned counsel posited that it is evident that the allocation was
made to the 3rd defendant while this proceeding was pending
and by doctrine of lispendens, it cannot really be said to be
proper or valid. He cited INEC V. AMAECHI (2008) 5 NWLR (PT.
1080) 227.
Base on the foregoing the 1st and 2nd defendants re-instated the
plaintiff to the said plot and offered an alternative allocation to
the 3rd defendant which he rejected.
ISSUE 2
This is issue on the relief of N86, 000, 000. 00 claimed as special
damages. The plaintiff having abandoned this leg of claim, it is
needless to go into that.
The plaintiff on his part,formulated these issues for determination to
wit:
1. Whether the suit of the plaintiff as presently constituted is
competent to cloth the court with the relevant jurisdiction to
determine same.
2. If the answer to issue 1 is in the affirmative, whether based on
preponderance of evidence adduced by the plaintiff in the
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establishment of her claims, the plaintiff has proved her case,
and is entitled on the balance of probabilities and on
preponderance of evidence to the ownership, peaceable and
quiet enjoyment of the plot of land, lying and situate at plot
1464 cadastral zone AO4,Asokoro District, Abuja.
3. Whether the defendants, particularly the 3rd defendant joined
issues with the plaintiffs on the material averments contained in
the amended statement of claim, and whether the defendant
adduced evidence of a probative value in defense of this suit
to warrant dismissal of this suit and grant of the 3rd defendant’s
counter claim before this court.
ISSUE 1
Learned counsel to the plaintiff IfeanyiNrialike Esq. contended that
the 3rd defendant failed to supply any legal basis for his submission as
captured in paragraph 5. 02. 3. He submitted that there is no legal
basis for such submission because none exist and there is no place it
is provided in our Rules of court or statute that once a life of a writ
was not renewed before service, that it becomes incurably
defective.
He contended that there is only one reason for a writ to be renewed
after being issued; that is, if it was not served on the defendants
within 12 months of its issue. He cited Order 4 Rule 16 (1) and (2) FCT
High Court Civil Procedure Rules.
He argued that a writ is never dead, but such writ shall not be validly
served if not served within twelve months beginning with the date of
its issue. The writ was validated on 19th day of April, 2007 upon the
application of the plaintiff. He argued that even if the writ was issued
twelve months after service, the defendants are expected to
promptly object to it, but he took steps to file not only his statement
of defence and counter claim, but actively participated in the trial.
He cited Order 4 Rule 16 (1) of the Rules this court and the cases of
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NOIBI V FIKOLATI (1987) 1 NWLR (PT. 52) 619,
ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI
ABACHA (DECEASED) VS SAMUEL DAVID EKE SPIFF AND 30RS (2007) 37
NSCQLR, citing ADEGOKE MOTORS LTD V DR. ADEANYA AND ANOR.
(1989)
In disagreeing with the submission of defendant’s counsel on the
position in the case of Mr.KolanoleOronti v Onigbanjo (2012) NWLR
(pt 1313) page 23at 36-37, counsel held the view that the doctrine of
lispendens is inapplicable in this case.He contended that the Apex
court in OrontivOnigbanjo (supra) represents the law and the plaintiff
met all the conditions necessary.
He urged the court to hold that the doctrine of lispendens is
applicable, the 1st and 2nd defendants having being aware of this
suit, as at February, 2007 and actively participated in same, even
until and after this court granted interlocutory injunction on the 10th
of May, 2007. That lack of knowledge of this suit can therefore not be
valid defense by the 3rd defendant against the claim of the plaintiff.
On whether there is a valid plaintiff in this suit
Counsel submitted that the title of the plaintiff is not rooted in exhibits
A-D, but in Exhibit E, the letter of offer given to the plaintiff by the 1st
and 2nd defendants and the amendment of the originating process
of the plaintiff did not alter the validity of the plaintiff. The plaintiff
remains the plaintiff contrary to the erroneous contention of the
3rddefendant. He stressed that the pleadings of the plaintiff clearly
stated who the plaintiff is in paragraph 1 of the further amended
statement of claim. Also at paragraph 9 and 10 of Pw1 evidence in
chief as contained in his witness statement on oath of 2/03/2009, the
plaintiff gave the basis and reason which allowed Evangelist Linus
Ukachukwuto give evidence in this case.
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He submitted further that even if the power of attorney gave no
direct power to the attorney as it concerns legal matters, which is
not conceded, it will not make any difference to the competence of
the plaintiff’s case since the suit was brought by the attorney in the
name of the DONOR and the reliefs sought was also in favor of the
plaintiff, the DONOR.
He contended further that the plaintiff need not even indicate that
he was suing by his attorney. He need not even tender powers of
attorney in the first place and that it is irrelevant to have tendered
them since the suit was brought in the name of the plaintiff and not
that of his attorney. He contended that even pleading the power of
attorney in the first place was a mere surplus age as the case will still
stand without the power of attorney. Further that according to
Pereirs and Melwani’s cases, the Power of Attorney is completely
irrelevant since the suit was instituted in the DONORS name. counsel
urged the court to resolve this issue against the Defendantsin favor of
the plaintiff and hold that at all times in this suit, there was always
been a valid plaintiff.
ISSUE 2
Learned counsel stated that it is the case of the plaintiff that her
statutory right over the said plot of land was never at anytime
revoked, save what the staff of development control department of
the 1st and 2nd defendants told him in February, 2006. The plaintiff
established that no revocation Notice was served on him. He made
reference to the case of N.E.W V DENAP (2002) 2WRN 1 where the
court held that where there is an existing earlier grant, any later
grant in consequence of the exercise of power of revocation under
section 28 of the Land Use Act and more importantly, the holder of
this right of occupancy being revoked must be notified in advance
of the revocation.
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The notice to the holder must state the reason or reasons for the
revocation and this will give the holder opportunity to make any
representation he or she wishes to make, where the notice was not
given or notice given was inadequate or not given in compliance
with the provisions of the Act, the act or exercise of the revocation
under section 28 of the Act will be null and void. He cited the case of
Jegede v Iticon ltd (2001) 4 NWLR (PT. 702) AT 117 where the court
held that without service of notice of revocation on the holder of a
right of occupancy sought to be revoked, the revocation is
ineffectual. He argued that the fact that the 1st and 2nd defendant
did not call any evidence further amplified the fact that the
evidence of the plaintiff remains principally credible,
uncontroverted, unchallenged and proved/established on the
balance of probabilities.
ISSUE 3
Whether the defendants, particularly the 3rd defendant joined issues
with the plaintiffs on the material averments contained in the
amended statement of claim, and whether the defendant adduced
evidence of a probative value in defense of this suit to warrant
dismissal of this suit and grant of the 3rd defendant’s counter claim
before this court.
Counsel buttressed the point that the 3rd defendant on the basis of
his address before the court has abandoned his case at the trial and
even under cross examination of the plaintiff’s witness, Pw1, the 3rd
defendant made no effect to ask question to discredit the evidence
in chief of Pw1, rather they engaged in trying to established, albeit,
fruitlessly, whether the plaintiff paid stamp duty for Exhibit C or not
and whether such building plan was amended or supplementary.
That the plaintiff established that development was actually going
on at plot 1464 and tendered pictures through Pw2 to establish that
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development was actually going before the plaintiff’s workers were
chased out of the site.
He contended that no evidence was led to show what made
approval of the building plan to two parties over the same property
impossible. No evidence was led to show that the plaintiff’s title was
validly revoked.
The 3rd defendant filed a reply on points of law in response to the
plaintiff’s final written address and contended therein that the suit
was brought by Lingo Nigeria Limited in its purported capacity as
attorney of MorenikeOredolaOlawunmi Ayo and not
MorenikeOredolaOlawunmi Ayo as now claimed by the plaintiff in
their final written address. He cited the authorities of M.S.C EZEMBA V
S.O IBENEME trading under the name and Style Soide Engineering
works Nigeria) & 2 Ors v ALHAJI RAJI ALAOYE & 1OR (2004) 9. MJSC
93 AT 106, PARAGRAPH E-F, OMEGA BANK PLC V OBC LTD, supra. On
the doctrine of Lispendens, counsel cited ORONTI V ONIGBANJO,
supra, N.E.W Vs DENAP supra, etc.
I have careful gone through the suit of the plaintiff and all the
relevant processes filed by the parties. I have taken considerable
time to study inbetween the line the exhibits tendered in this case.
Equally, I closely watched the demeanor of witnesses in the witness
box at the trial of this case.It is my humble view that issues that call
for determination in this case is as thus:
1. Whether the plaintiff has successfully proved his entitlement to
plot 1464, Cadastral zone AO4 within Asokoro District of the
Federal Capital Territory and thus entitles him to the reliefs
sought in this case.
Before I proceed to answer the above question it is pertinent and
would as well tardier to address issues touching on the jurisdiction of
this honorable court raised by the 3rd defendant.
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For instance, it is argued strenuously on behalf of the 3rdDefendant
that there exists no valid writ of summons upon which this suit was
predicated to invoke the doctrine of lispendens and that the court
lacked the power to extend the validity or renew the life of a
dead/expired writ of summons which had already been served on
the defendants.I have given due consideration to this argument in
line with the Rules of this court. I found it difficult while reviewing the
3rd defendant’s address to fathom the rational to this argument as
put forward by the 3rd defendant’s counsel. The Rules of this Court as
per Order 4 Rule 16 states as thus:
1. “for purpose of service, a writ (other than a concurrent writ)
shall be valid in the first instance for twelve months beginning
with the date of its issue…”
2. Where a writ has not been served on a defendant, a court may
by Order extend the validity of the writ from time to time for
such period, not exceeding twelve months at any one time,
beginning from the day following the anniversary or expiring as
specified in the Order, if an application for extension is made to
a court before that day, or such latter day as the court may
allow.
In the light of the foregoing express provision our Rules, I am of the
view that it is never the requirement of the Rules that a writ which
was not served on the defendant within 12 months is invalid and
irredeemably or incurably defective. What that provision clearly
provides for is that service of writ cannot be validly done after twelve
months beginning with the date of its issue except it is renewed
accordingly. Aside that, even if the life span of the writ had expired,
by the rules this court, the court has the inherent powers to renew
such writs as was rightly done in this case.
20
Having granted that Order upon valid application by counsel which
Order is still subsisting the writ stands renewed and that puts this
matter to rest, hence there was no appeal against that Order.
Therefore, I think it is improperly raised at the final stage of the
proceedings when 3rd defendant had fully participated in the trial as
though all was well till this eleventh hour. Whatever irregularity (if any)
that occurred with the writ, that has been cured by the plaintiff’s
application to regularize same. Order 2 Rules 1 (a) on effect of non-
compliance is apt in this regard. The Rules of court are merely a
guide and not a sword.In the case of Kolawale V Albert, 1700 LPELR
(CA) the court held thus:
"Where an act originally valid is rendered invalid by subsequent act,
the invalidity arising thereby is temporary and is curable, in my view
as a mere irregularity. This appears to be the position in this case. A
Writ of Summons which has not been served for twelve months
remains a valid Writ of Summons, but lies dormant and ineffective for
service waiting to be reactivated and rendered efficacious in the
manner prescribed by rules of court. The Court can grant an
application which will render the writ as effective as when it was
issued originally and before the period of twelve months elapsed.
Finally on this point, service of a Writ of Summons made after the
period of twelve months in respect of which a Defendant enters
unconditional appearance is valid service". Per kARIBI-WHYTE, J.S.C.
(P. 43-44, Paras. G-C)
Therefore, I hold the view that the leg of argument is not sustainable
or good enough to terminate this case at this stage, more now that
the courts are enjoined to do substantial justice as opposed to
technical justice which does not improve our legal jurisprudence.
21
Secondly, it was contended for the 3rd defendant that there is no
valid plaintiff in this matter. According to the 3rd defendant exhibits:
A, B, C and D did not make specific provisions to the attorney to;
1. Constitute or appoint another attorney or;
2. To appoint/constitute another attorney to carry out any acts
whatsoever as it affects the subject matter or;
3. To delegate the power contained herein so as to exclude the
legal maxim, delegatus non protest delegare”
The question that comes to mind as regards this issue is the effect of
exhibits A-D on this suit. In consideration of this issue I have had
course to peruse the letter of offer granted to Morenike Ayo, exhibit
E by the 1st and 2nd defendants. Legally speaking, exhibits A-D were
not and cannot be fronted as evidence of title but as a mere
instrument of delegation by the plaintiff to his Attorney. The status of
the plaintiff is as stated in paragraph 1 of the Statement of claim as
thus:
“the plaintiff is the holder of and entitled to the statutory right of
occupancy over plot or pieces of land covered by Right of
occupancy No. FCT/ABU/OD/1933…….”
From the foregoing, it is no longer cloudy or unclear who the plaintiff
is. Nothing precludes the plaintiff from alienating or delegating
another to act for him. Like I said power of attorney is mere
instrument of delegation and does not transfer title, so there cannot
be any confusion as to who is the plaintiff in this case. The argument
on a wrong plaintiff would have been successfully sustained where
by the name as it appears on exhibit E is different from that as
contained in the originating processes. In that case, a wrong plaintiff
would be suing and he would be regarded and treated as
ameddlesome interloper that cannot enforce such action.
22
Therefore the plaintiff is not Lingo Nigeria Ltd but an attorney of
MorenikeOredola Ayo the Donor whose name appears on the offer
letter. There must not be direct or express authority to the attorney to
institute this matter in the Power of attorney. The capacity of an
attorney to sue for the benefits of a principal Donor is presumed or
ancillary to the general powers conferred on the attorney.
A Power of Attorney is a document,usually but not always necessarily
under seal,whereby a person seized of an estate in land authorizes
another person (the donee) who is called his attorney to do in the
stead of the donor anything which the donor can do, lawfully usually
clearly spelt out in the Power of Attorney. Such acts may extend
from receiving and suing for rates and rents from, to giving same to
third parties. It may be issued for valuable consideration or may be
coupled with interest, in either case, it is usuallymade to be
irrevocable either absolutely or for alimited period (see s. 8 and 9 of
the ConveyancingAct of 1881 which is still applicable in the Rivers
State under Section 15 of the High Court Law).
A power of attorney merely warrants and authorizes the donee to do
certain acts in the stead of the donor and so is not an instrument
which confers,transfers, limits, charges or alienates any title to the
donee: rather it could be a vehicle whereby these acts could be
done by the donee for and in the name of the donor to a third
party. So, even if it authorizes the donee to do any of these acts to
any person including himself, the mere issuance of such a power is
not per se an alienation or parting with possession. So far, it is
categorized as a document of delegation; it is only after, by virtue of
the Power of Attorney, the donee leases or conveys the property,
the subject of the power, to any person including himself.
At this juncture, I wish to state that submissions of the counsel to the
plaintiff vilifying the 3rd defendant for bringing out these issues for the
first time at address stage as erroneous and in alter misconception or
show of inability to appreciate the guiding principle on jurisdiction
which can be raised at any stage of the proceeding even on
judgment day. This is because if the court holds that a wrong party
23
had come to court, the court can as a matter of want of jurisdiction
strike out such suit at any stage of the proceeding in line with the law
and Rules of this Court.
Having said the foregoing, the point remains that this leg of
argument on the capacity of the plaintiff as raised by the 3rd
defendant is neither here nor there. It is like a rolling stone that
gathers no moss. Ethically, I paused to ask rhetorically; what is the
business of the 3rd defendant whose title was in issue had to do with
capacity of the plaintiff to institute the action?
Whether it was the Donor himself or the Attorney’s name that
reflected in the originating processes as the plaintiff how does that
vest title on the 3rd defendant? Even if the 3rd defendant succeeds in
this argument does that not automatically vest the property on
him? I see that line of defense with respect a mere shadow chasing.
Litigation is not children’s game of hide and seek, neither is it a game
of chess.Rather, court is a place of serious business where the court is
particularly interested in justice and fair play to all the parties.
The energy the 3rd defendant dissipated on this argument could
have been utilized to convince the court that the land in dispute
actually belonged to him. If any party was to challenge the plaintiff’s
holding over the said plot, it would be the 1 and 2nd defendants who
are not only the landlord but granting authority. However, in sharp
opposite to the 3rd defendant the 1st-2nd defendants did not
challenge the plaintiff’s capacity to bring the action as presently
constituted. In fact they assisted the court in ascertaining the true
position with regards to this matter. That is by the way!
Having done justice to the above issues, the coast is now clear to
decide on the issue formulated by the court for determination in this
case.
24
Whether the plaintiff has successfully proved his entitlement to plot
1464, cadastral zone AO4 within Asokoro District of the Federal
capital territory and thus entitle the reliefs sought in this case.
The law is point blank that when there exists conflicting claims over a
parcel of land or allocation of a piece of land to different persons,
the first allocation outweighs subsequent beneficiaries of the same
piece of land until the first allocation is duly nullified.
In paragraph 4 of the amended statement of claim the plaintiff
claims that by virtue of allocation letter dated 19th September, 2003
issued to him by the then Hon. Minister of FCT, he became seised of
the land, that is plot 1464 cadastral zone A04 within Asokoro district,
FCT. Evidence was led to establish this averment and none of the
defendant joined issue with respect to this leg of claim. This claim
was even copiously admitted by the 1st and 2nddefendants. In view
of the fact that parties are in agreement that the plaintiff’s
allocation was first in time, the court accepts that as the true state of
affair to hold that the plaintiff is the first beneficiary to the land in
issue whose title subsisted until issues arose.
Another hurdle for the plaintiff to cross is to establish that the
grant/allocation to him still subsist and valid for the court to find in his
favor.The plaintiff claimed that his title holding to plot 1464, cadastral
zone A04 within Asokoro District of FCT with right of occupancy No.
FCT/ABU/OD/1933 was purportedly revoked by the 1st and 2nd
defendants. This claim was premised on grounds as contained in
paragraphs 10, 11 and 12 of the amended statement of claim,
which for emphasis are hereby reproduced seriatim:
10. “the plaintiff avers that he was surprised when agents of the
second defendant came to the plot of land on Friday, the 24th
day of February, 2006, chased out all the workmen at work and
marked the structures for demolition.
25
11. the plaintiff protested the markings and insisted he was
developing strictly in accordance with the approved building
plans but was directed to make his enquiries at the
development control of the 2nd defendant.
12. the plaintiff avers that on his enquiry at the development
control, he was informed that his property has been purportedly
revoked by the 1st defendant in a general revocation exercise
of vacant plot of lands in FCT for non-development”
Without much ado, I wish to state categorically that Land Use Act,
1978 has in clear terms stipulates the modus as regards revocation of
Right of Occupancy. One which is that such notice must be in
writing addressed to the Title holder stating the grounds of the
revocation. Anything short of that requirement renders the exercise
futility. It does make provision for speculative or oral revocation of
statutory right of occupancy. Therefore, in relation to this case, I
found no legal basis to swim with the plaintiff that his title was
actually revoked. Mere information by the staff of the defendants or
even the Minister of FCT without written notice stipulating the reasons
for the revocation cannot stand. Though the circumstances of the
case suggest or tend to justify that there was an attempt to revoke
or reallocate the plot to the 3rd defendant, but however strong or
reliable such information wasit cannot in all honesty be taken that
the plaintiff’s holding had been revoked.
Following from this finding, I hold the opinion that the claim on
revocation is speculative and imaginary; hence no revocation had
ever taken place with respect to the plot in issue. It follows naturally
that since there had never been any revocation with respect to the
plaintiff’s plot in issue as required under the relevant laws of this land,
the plaintiff’s title still subsist. Any other grant to any third party
cannot stand until the plaintiff’s right of occupancy is properly
revoked in accordance with the conditions laid down in the Land
26
Use Act and constitution of Federal Republic of Nigeria, 1999 (as
amended).
By implication therefore, the right over the plot ab initio vested on
the plaintiff still subsists and valid; I so hold.
Having said the foregoing, it is clear that there were some positive
steps taking by the defendants to dispossess the plaintiff of the said
plot as contained in the amended statement of claim which
averments were not materially denied. For instance, the plaintiff
alleged that the agents of the 1st and 2nd defendants marked the
building on the plot for demolition and actually demolished same. I
have seen documents annexed to substantiate that claim which
was also not contradicted in any material particular. I think basically
that this is where the plaintiff’s cause of action lies and not on the
assumed/imagined revocation that never be. The law is ubi jus
ubiremedium.
Since the plaintiff has abandoned reliefs on special and general
damages, the court does not have business making pronouncement
on them.
Therefore, having established that the plaintiff has a legal right to
protect over plot 1464, cadastral zone A04 within Asokorodistrict of
FCT, Abuja with right of occupancy no: FCT/ABU/OD/1933, I am of
the view that those rights require judicial protection in tandem with
the relevant reliefs of the plaintiff as proved at the course of trial and
the court is bound to do the needful.
It is hereby declared as follows:
1. That the demolition of the plaintiff’s developed structures on
plot No: 1464, cadastral zone A04, Asokoro District, Abuja on
17/04/2007 by the 2nd defendant on the order of 1st
defendant is illegal and therefore amounts to an act of
trespass.
27
2. An order of mandatory injunction mandating the defendants
to complete the recertification process of plot No: 1464,
cadastral zone A04, Asokoro district, Abuja FCT in favor of the
plaintiff or his attorney, the statutory fees and other
recertification expenses having been paid.
3. An Order of perpetual injunction restraining the defendants,
their assigns, agents, or privies from further interfering with the
progress of work in developing the plot of land by the plaintiff
except by way of inspection to ensure compliance with the
approved building plans and/or other regulations as
provided for in section 11 of the Land Use Act, 1978 or any
other governing statutes.
Finally, the 3rdDefendant’s counter claim is also dismissed for
no cogent evidence to establish it.
This is the judgment of this court.
No order as to costs.
Signed
_________________
Judge
24-3-2016
IkechukwuEzechukwu with IfeanyiNrialike, Oliver A. Eya and
NwamakaNwobi for the Plaintiff.
TobechukwuNweke with NwamakaOfeogbu (Miss) for the 1st and 2nd
Defendants.
OnyebuchiObetan for the 3rd Defendant.
Signed
_________________
Judge
24-3-2016