SOROUNGBE & ORS v. LAGOS STATE URBANRENEWAL BOARD & ORS

CITATION: (2017) LPELR-43378(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 24TH NOVEMBER, 2017Suit No: CA/L/1061/2014

Before Their Lordships:

JOSEPH SHAGBAOR IKYEGH Justice, Court of AppealUGOCHUKWU ANTHONY OGAKWU Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal

Between1. MRS. YETUNDE ADEKUNBI SOROUNGBE2. CHIEF (DR) ADENRELE ADEJUMO3. MR. OLAYINKA MARTINS4. MR. REGINALD ADENIRAN DA-COSTA

- Appellant(s)

And1. LAGOS STATE URBAN RENEWAL BOARD2. LAGOS STATE DEVELOPMENT AND PROPERTYCORPORATION3. THE ATTORNEY GENERAL OF LAGOS STATE4. MR. O. ALAKA

- Respondent(s)

RATIO DECIDENDI

(201

7) LP

ELR-43

378(

CA)

1. APPEAL - CROSS-APPEAL/RESPONDENT NOTICE: Essence of arespondents notice; when a respondent can file a cross-appeal"The Respondent's Notice of Contention is resorted to where theposition of the respondent is that the judgment is correct but thatthe judgment was based on wrong grounds or premise; and thatthere is enough evidence on record which can sustain the judgmenton other grounds other than those relied upon by the trial Court. TheRespondent's Notice of Contention postulates the correctness of thejudgment. See AMERICAN CYANAMID COMPANY vs. VITALITYPHARMACEUTICALS LTD (1991) 2 NWLR (PT 171) 15 or (1991) LPELR(461) 1 at 23-24, SUMONU vs. ASHOROTA (1975) 1 NMLR 16 andLAGOS CITY COUNCIL vs. AJAYI (1970) 1 ALL NLR 291.It goes without saying that a Respondent's Notice that postulatesthe correctness of the judgment appealed against cannot complainabout error in law in the judgment. Where a Respondent contendsthat the judgment was the product of an error in law, then itpresupposes dissatisfaction with the judgment and the logicallyappropriate procedure will be to file a cross appeal to correct theerror in law and not a Respondent's Notice: AFRICAN CONTINENTALSEAWAYS LTD vs. NIGERIAN DREDGING ROADS AND GENERALWORKS LTD (1977) 5 SC 235, ELIOCHIN NIG. LTD vs. MBADIWE(1986) 1 NWLR (PT 14) 47 and ORO vs. FALADE (1995) 5 NWLR (PT396) 385."Per OGAKWU, J.C.A. (Pp. 6-7, Paras. E-E) - read in context

2. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S):Instances when an appellate Court will not interfere with findings offact of the lower Courts"It is trite law that an appellate Court will not interfere or disturb thefindings of a lower Court unless a substantial error is shown orwhere they are perverse or unsupported by evidence. See the caseof OJENGBEDE V ESAN (2001) 92 LRCN 3326; MADAKI v. CIROMA &ORS (2016) LPELR-40268 CA.The above implies that since the lower Court arrived at its decisionin a coherent and logical way backed with the evidence available,there is no reason why this Court should intervene with same."PerOBASEKI-ADEJUMO, J.C.A. (P. 31, Paras. B-E) - read in context

(201

7) LP

ELR-43

378(

CA)

3. APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE:Circumstance(s) when an Appellate Court will not interfere withevaluation of evidence made by a Trial Court"It is rudimentary law that the evaluation of evidence and theascription of probative value thereto reside within the province ofthe Court of trial that saw, heard and assessed the witnesses. Wherea trial Court unquestionably evaluates and justifiably appraises thefacts, it is not the business of an appellate Court to substitute itsown views for the view of the trial Court, however, an appellateCourt can intervene where there is insufficient evidence to sustainthe judgment or where the trial Court fails to make proper use of theopportunity of seeing, hearing, and observing the witnesses orwhere the findings of facts by the trial Court cannot be regarded asresulting from the evidence or where the trial Court has drawnwrong conclusion from accepted evidence or has taken an erroneousview of the evidence adduced before it or its findings are perverse inthe sense that they do not flow from accepted evidence or notsupported by the evidence before the Court. See EDJEKPO vs. OSIA(2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47,ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI(1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2NWLR (PT.589) 1 or (1999) LPELR (1248) 1 at 47 - 48.It is beyond dispute that the lower Court duly appraised theevidence, the findings and conclusions arrived at by the lower Courtaccord with common sense and reason based on the availableevidence. At the risk of being prolix, I restate that an appellate Courtwill not substitute its own views with those of the trial Court, whenas in the instant appeal, the trial Court has unquestionablyevaluated the evidence and justifiably appraised the facts. SeeNGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs.SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at19-20. The evaluation of evidence and the findings made by thelower Court were definitely not perverse. Therefore there isabsolutely no basis on which an appellate Court can intervene. Fromall I have said thus far, the inevitable summation is that theAppellant has failed to displace the presumption that theconclusions of the lower Court on the facts are correct in order toupset the judgment on the facts: EHOLOR vs. OSAYANDE (supra) at43 and ONI vs. JOHNSON (supra) at 24."Per OGAKWU, J.C.A. (Pp.28-30, Paras. C-C) - read in context

(201

7) LP

ELR-43

378(

CA)

4. COURT - RAISING ISSUE(S) SUO MOTU: Instance(s) where acourt can raise issue(s) suo motu and determine it without hearingparties"...This question of the competence of the 2nd Respondent's Noticeof Contention has been raised suo motu in this judgment. Havingbeen raised suo motu, the learned counsel are ordinarily expectedto be heard on the point. However, it is trite law that the need toinvite counsel to address on an issue raised suo motu by the Court isnot imperative where the issue raised suo motu goes to thejurisdiction of the Court. This is the position with the competence ofthe 2nd Respondent's Notice of Contention because the Court doesnot have the jurisdiction to entertain the said incompetent 2ndRespondent's Notice of Contention. See OMOKUWAJO vs. FRN (2013)9 NWLR (PT 1359) 300 at 332, ALIMS LTD vs. UBA (2013) 1 MJSC (PTI) 156 at 170 and OLUTOLA vs. UNIVERSITY OF ILORIN (2005) ALLFWLR (PT 245) 1154."Per OGAKWU, J.C.A. (P. 10, Paras. A-E) - read incontext

5. EVIDENCE - PROOF: Nature of evidence sufficient to sustain aclaim"Now, the evidence adduced in proof of a case must be of suchquality that preponderates in favour of the basic proposition which isdesired to be established by the evidence. See OBASI BROTHERSMERCHANT COMPANY LTD vs. MERCHANT BANK OF AFRICASECURITIES LTD (2005) 4 MJSC 1 at 26 and NEKA B.B.B.MANUFACTURING CO. LTD vs. A.C.B. LTD (2004) 15 WRN 1 at 26.The Appellants by virtue of having the evidential burden of proofmust adduce evidence that is credible, cogent and compelling inorder to prove the facts on which they premised their action. SeeARASE vs. ARASE (1981) 5 SC 33 at 37 and OKI vs. OKI (2001) 13NWLR (PT 783) 89 at 105."Per OGAKWU, J.C.A. (Pp. 16-17, Paras. F-C) - read in context

(201

7) LP

ELR-43

378(

CA)

6. EVIDENCE - PRESUMPTION OF CORRECTNESS: Presumption ofcorrectness in the findings of the trial Court; on whom lies theburden to rebut same"The lower Court held that the Appellants did not produce evidencethat was cogent, credible and compelling and consequentlydismissed their case. The law is that the conclusion of the trial Courton the facts is presumed to be correct, so that presumption must bedisplaced by the person seeking to upset the judgment on the facts.See WILLIAMS vs. JOHNSON (1937)2 WACA 253, BALOGUN vs.AGBOOLA (1974) 1 ALL NLR (PT 2) 66, EHOLOR vs. OSAYANDE(1992) LPELR (8053) 1 at 43 and ONI vs. JOHNSON (2015) LPELR(24545) 1 at 24."Per OGAKWU, J.C.A. (P. 17, Paras. C-F) - read incontext

7. EVIDENCE - PRESUMPTION OF REGULARITY: Presumption ofregularity for official or judicial acts carried out"Section 168 of the Evidence Act enacts a presumption of regularityin respects of judicial and official acts. The presumption which isrebuttable is expressed in the Latinism omnia praesumuntur rite etsolemniter esse acta donec probetur in contrarim, which is moreoften shortened as omnia praesumuntur rite esse acta. It means thateverything is presumed to be rightly done until the contrary isshown. See NDUKWE vs. LPDC (2007) LPELR (1978) 1 at 63 andANYAEGBUNAM vs. ANYAEGBUNAM (1973) LPELR (507) 1 at 15."PerOGAKWU, J.C.A. (Pp. 22-23, Paras. F-C) - read in context

8. EVIDENCE - DOCUMENTARY EVIDENCE: What constitutes asignature"The lower Court in the above pericope from the judgment relied onthe decision of this Court in ADEFARASIN vs. DAYEKH (supra) to holdthat signature does not necessarily mean writing a person'sChristian name and surname. In the said case, Kekere-Ekun, JCA (ashe then was) stated:"It is common knowledge that a person's signature, written names ormark on a document, not under seal, signifies an authentication ofthat document that such a person holds himself out as bound orresponsible for the contents of such a document. Signature does notnecessarily mean writing a person's Christian name and surnamebut any mark which identifies it as the act of the party."PerOGAKWU, J.C.A. (P. 25, Paras. C-F) - read in context

(201

7) LP

ELR-43

378(

CA)

9. INTERPRETATION OF STATUTE - EXPROPRIATORY STATUTE:How law which seeks to deprive proprietary right is to be construed"The Appellants have rightly submitted that a statute whichauthorizes the acquisition of a person's property has to be construedfortissimo contra preferentes, strictly against the authority andsympathetically in favour of the possessor of the property againstany irregularity in procedure. See NANGIBO vs. OKAFOR (2003) 52WRN 1 at 24-25, AMOO vs. MAJASAN (2004) 26 WRN 156 at 167-168and NWOSU vs. IMO STATE ENVIRONMENTAL SANITATIONAUTHORITY (2004) 20 WRN 94 at 150, 151-152."Per OGAKWU, J.C.A.(P. 18, Paras. A-C) - read in context

(201

7) LP

ELR-43

378(

CA)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering

the Leading Judgment): This appeal is against the

judgment of the High Court of Lagos State in SUIT NO.

LD/4394/1995: MRS YETUNDE SORUNGBE & ORS (Suing

as Executor/Trustees of the Estate of the late George

Emmanuel Ladipo Akinsanya Da Costa) vs. LAGOS STATE

URBAN RENEWAL BOARD & ORS. delivered on 30th June,

2014.

In précis terms, the facts which spawned this appeal are

that the Appellants as Claimants before the lower Court

challenged the acquisition by the authorities of the

property situate at No. 125/127 Nnamdi Azikiwe Street,

Lagos. Contending that the Notice of Acquisition issued in

respect of the property was ineffectual, the Appellants

claimed the following reliefs:

“1. A Declaration that the Claimants are the persons

entitled to the possession of and the right of occupancy

over the premises known as 15/127 Nnamdi Azikiwe Street,

Lagos and covered by an indenture dated the 29th day of

January, 1920 registers as No. 26 at page 79 in Volume 134

of the Register of Deeds kept in the Lands Registry, Lagos.

2. A Declaration that the instrument said

1

(201

7) LP

ELR-43

378(

CA)

to be a Land Acquisition Notice No. B.791/CL.11/13 dated

19th day of January, 1960 and purported to be signed by

one K. S. A Abayomi is not in law a Land Acquisition Notice

within the meaning of that expression under the Lagos

Town Planning Ordinance.

3. A declaration that the aforementioned instrument, not

being in law a Land Acquisition Notice, did not serve to

divest the Plaintiffs of their right over the said premises

and to vest same in the Defendants or any of them.

4. An Order setting aside the said Land Acquisition Notice

and all other instruments and acts based thereon.

5. An Order directing the Defendants to give up possession

to the Plaintiffs.

6. A perpetual injunction restraining the Defendant either

by themselves, their agents, servants or privies from

further dispossessing, interfering with in any manner

whatsoever the Plaintiffs’ possessory rights, enjoyment and

use of the said premises.

7. An Order directing an inquiry into damages suffered by

the Plaintiffs buy [sic] the forcible entry into premises, and

the eviction of the Plaintiffs tenants from the said

premises.”

The parties filed and

2

(201

7) LP

ELR-43

378(

CA)

exchanged pleadings; and after an inter partes hearing at

which testimonial and documentary evidence was adduced,

the lower Court dismissed the Appellants’ case. The

judgment of the lower Court is at pages 620-639 of Volume

II of the Records. The Appellants being dissatisfied

appealed by Notice of Appeal filed on 23rd September

2014. The Notice of Appeal is at pages 640-642 of Volume

II of the Records. Upon the compilation and transmission of

the Records, the parties filed and exchanged briefs of

argument. The briefs on which the appeal was argued are:

1. Appellants’ Brief of Argument filed on 24th December

2014.

2. 1st, 3rd & 4th Respondents’ Brief filed on 27th February

2015.

3. 2nd Respondents’ Brief of Argument filed on 24th

February 2015.

On 27th February 2015, the 2nd Respondent also filed a

Respondents’ Notice of Intention to contend that the

judgment should be affirmed on grounds other than those

relied on by the Court below.

At the hearing of the appeal, the Appellants and the 2nd

Respondent were represented in Court. The learned

counsel for the 1st, 3rd & 4th Respondents was

3

(201

7) LP

ELR-43

378(

CA)

however absent. Upon being satisfied that hearing notice

was served on them, the Court proceeded to treat the

appeal as having argued pursuant to Order 19 Rule 9 (4) of

the Court of Appeal Rules, 2016. Thereupon, the learned

counsel for the Appellants and the 2nd Respondent urged

the Court to uphold their respective submissions in the

determination of the appeal.

The Appellant distilled three issues for determination

namely:

“1. Whether the Acquisition Notices as served by the 1st

Defendant on the claimants can be directed, addressed and

served on a non-existing address, as at 19th December,

1959 and/or February 1960 in respect of the property at

125/127 Nnamdi Azikiwe Street?

2. Whether the said Acquisition Notices contain

signature(s) mark(s), impression(s) or any things

whatsoever to identify same as the act of the then chairman

pursuant to Section. 71 (1) and (2) of the Lagos Town

Planning Ordinance Law Cap 103 LFN 1948?

3. And where the answers to the above are not in the

affirmative then what is the consequence of such acts by

the acquiring Authority?”

The 1st, 3rd & 4th Respondent adopted the

4

(201

7) LP

ELR-43

378(

CA)

issues for determination as distilled by the Appellants. The

2nd Respondent on its part formulated two issues for

determination, as follows:

i) “Whether the lower Court was right when it dismissed

the Appellants’ Claim against the 1st-4th Respondents’ on

the ground of lack of proof by the Appellants.

ii) Whether or not the Appellants’ cause of action accrued

in 1960 or in the alternative in 1975 and therefore became

statute barred when the Appellants’ commenced this suit

on 25th October 1995.”

The 2nd Respondents issue number two is stated to have

been crafted from the 2nd Respondents’ Notice of

Contention. In order to streamline the material questions

for resolution in this appeal, I would start with the 2nd

Respondents’ Notice of Contention to ascertain if it is in

fact a Respondents Notice of Contention as required by the

Court of Appeal Rules.

THE 2ND RESPONDENT’S NOTICE OF CONTENTION

As previously stated, the 2nd Respondent filed a notice to

contend that the judgment of the lower Court should be

affirmed on grounds other than those relied on by the lower

Court.

5

(201

7) LP

ELR-43

378(

CA)

Order 9 Rule 2 of the Court of Appeal Rules, 2011 which

was the regnant adjectival law at the time the said 2nd

Respondent’s Notice of Contention was filed, and which is

in pari materia with the extant Court of Appeal Rules, 2016,

stipulates as follows:

“2. A Respondent who desires to contend on the appeal that

the decision of the Court below should be affirmed on

grounds, other than those relied upon by that Court, must

give notice to that effect specifying the grounds of that

contention.”

Now, the Rules provide a specimen form which is to be

used in a Respondent’s Notice of Intention to contend that

the judgment be affirmed. The said form is Form 10B and it

requires that the respondent set out, inter alia, the other

grounds disclosed on the evidence on the basis of which the

judgment can be sustained.

The Respondent’s Notice of Contention is resorted to where

the position of the respondent is that the judgment is

correct but that the judgment was based on wrong grounds

or premise; and that there is enough evidence on record

which can sustain the judgment on other grounds other

than those

6

(201

7) LP

ELR-43

378(

CA)

relied upon by the trial Court. The Respondent’s Notice of

Contention postulates the correctness of the judgment. See

AMERICAN CYANAMID COMPANY vs. VITALITY

PHARMACEUTICALS LTD (1991) 2 NWLR (PT 171) 15

or (1991) LPELR (461) 1 at 23-24, SUNMONU vs.

ASHOROTA (1975) 1 NMLR 16 and LAGOS CITY

COUNCIL vs. AJAYI (1970) 1 ALL NLR 291.

It goes without saying that a Respondent’s Notice that

postulates the correctness of the judgment appealed

against cannot complain about error in law in the

judgment. Where a Respondent contends that the judgment

was the product of an error in law, then it presupposes

dissatisfaction with the judgment and the logically

appropriate procedure will be to file a cross appeal to

correct the error in law and not a Respondent’s Notice:

AFRICAN CONTINENTAL SEAWAYS LTD vs.

NIGERIAN DREDGING ROADS AND GENERAL

WORKS LTD (1977) 5 SC 235, ELIOCHIN NIG. LTD vs.

MBADIWE (1986) 1 NWLR (PT 14) 47 and ORO vs.

FALADE (1995) 5 NWLR (PT 396) 385.

The text of the 2nd Respondent’s Notice of Contention is as

follows:

“TAKE NOTICE that at the hearing of this appeal the 2nd

Respondent shall raise the

7

(201

7) LP

ELR-43

378(

CA)

following ground by way of Respondent Notice:

GROUND

The learned trial judge erred when she held that this suit

was not statute or time barred after finding that the Notice

of Acquisition (Exhibits K1 & K2) was issued and served on

the Appellants’/Claimants’ in 1960.

PARTICULARS

1. The learned trial judge found as a fact that the

Appellants’ was served with the Notices of Acquisition

dated 19th February 1960 i.e. Exhibits K1 & K2.

2. That by Edict No. 3 of 1973 (Central Lagos Land

Acquisition Law) published in official Gazette of 21st April

1975 (Exhibit M) the Acquisition was again reiterated.

3. The acquisition was duly published in the Official

Gazettes and served on the Appellants’ and/or occupiers of

the property in 1960.

4. That the cause of action accrued in 1960 but the

Appellants’ filed this suit in 1995.

5. The time limited for bringing an action as per the

relevant law; Lagos Town Planning Ordinance Law Cap.

103 LFN 1948 provides for a maximum period of six (6)

weeks to raise an objection.

6. The Appellants’ claim is barred by the Lagos Town

8

(201

7) LP

ELR-43

378(

CA)

Planning Ordinance Law Cap. 103 LFN 1948 and their

rights and title (if any) to the said land were extinguished

by virtue of the said law.”

Doubtless, it is lucent that the 2nd Respondent’s Notice of

Contention has not specified other grounds on which the

correct judgment of the lower Court should be sustained by

other available evidence on the Record. It rather redacts

the error committed by the lower Court in its judgment.

Indeed, the 2nd Respondent raised the issue of the action

being statute barred, but the lower Court in its judgment at

pages 631-632 of the Records held that the action was not

statute barred. In view of this, the option available to the

2nd Respondent, if it was dissatisfied, was to appeal

against that part of the judgment; it is definitely not by

filing a Respondent’s Notice of Contention under Order 9

Rule 2 of the Rules of Court. The said 2nd Respondent’s

Notice of Contention is accordingly incompetent and the

jurisdiction of this Court has not been activated by the said

process in order for the Court to have the vires to

determine if there are indeed other grounds disclosed on

the Records on which the

9

(201

7) LP

ELR-43

378(

CA)

judgment of the lower Court can be sustained.

This question of the competence of the 2nd Respondent’s

Notice of Contention has been raised suo motu in this

judgment. Having been raised suo motu, the learned

counsel are ordinarily expected to be heard on the point.

However, it is trite law that the need to invite counsel to

address on an issue raised suo motu by the Court is not

imperative where the issue raised suo motu goes to the

jurisdiction of the Court. This is the position with the

competence of the 2nd Respondent’s Notice of Contention

because the Court does not have the jurisdiction to

entertain the said incompetent 2nd Respondent’s Notice of

Contention. See OMOKUWAJO vs. FRN (2013) 9 NWLR

(PT 1359) 300 at 332, ALIMS LTD vs. UBA (2013) 1

MJSC (PT I ) 156 a t 170 and OLUTOLA vs .

UNIVERSITY OF ILORIN (2005) ALL FWLR (PT 245)

1154.

The 2nd Respondent’s Notice of Contention and the issue

distilled therefrom are therefore struck out for being

incompetent. We now proceed to consider the merits of the

appeal.

THE SUBSTANTIVE APPEAL

From the issues crafted for determination, it is limpid that

the crux of

10

(201

7) LP

ELR-43

378(

CA)

this appeal centres round the validity of the Notice of

Acquisition in respect of No. 125/127 Nnamdi Azikiwe

Street, Lagos. The lower Court in its judgment held that the

Appellants did not supply sufficient evidence for them to be

entitled to judgment. In the circumstances, I find that the

three issues distilled by the Appellants, and which they

argued together, are subsumed and encapsulated in the

issue number one formulated by the 2nd Respondent, and

which is its sole surviving issue. Accordingly, it is on the

basis of issue number one distilled by 2nd Respondent that

I will consider the submissions of learned counsel and

resolve this appeal.

ISSUE FOR DETERMINATION

Whether the lower Court was right when it dismissed the

Appellants’ claim against the 1st-4th Respondents’ on the

ground of lack of proof by the Appellants.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL

The quiddity of the Appellants’ contention is that the Notice

of Acquisition purportedly issued in respect of No. 125/127

Nnamdi Azikiwe Street is incapable of extinguishing their

rights over the property because at the time the Notice was

issued

11

(201

7) LP

ELR-43

378(

CA)

there was no street known as Nnamdi Azikiwe Street; as

the property was at the time situate and known as Victoria

Street. Official Gazette Government Notice No. 1125 of 8th

June 1960 was referred to. It was further argued that the

Notices of Acquisition were not duly signed as required by

Section 71 of the Town Planning Ordinance and that no

probative value is to be accorded an unsigned document.

The cases of MEDITERRANEAN SHIPPING (U.S.A) vs.

ENEMAKU (2012) 11 NWLR (PT 1312) 583 at 605 and

YADIS NIG. LTD vs. GREAT INSURANCE CO. LTD

(2001) 11 NWLR (PT 725) 529 at 540-541 were relied

upon.

The Appellants further contend that the Notice of

Acquisition was neither served on them or on the occupants

of the premises and that the law governing acquisition of a

person’s property must be construed fortissimo contra

preferentes, and non-compliance must be strictly construed

against the acquiring authority. The case of AMOO vs.

MAJASAN (2004) ALL FWLR (PT 227) 525 at 534 was

referred to. It was conclusively posited that since the

Notice of Acquisition did not conform to the strict terms of

the law, it did not have the effect of divesting the

Appellants

12

(201

7) LP

ELR-43

378(

CA)

of their proprietary right in No. 125/127 Nnamdi Azikiwe

Street, Lagos.

S U B M I S S I O N S O F T H E 1 S T , 3 R D & 4 T H

RESPONDENTS’ COUNSEL

The learned counsel for the 1st, 3rd and 4th Respondents

submit that the law is that he who asserts must prove.

Section 131 of Evidence Act was cited in support. It was

opined that the Appellants did not produce evidence to

show that at the time of the acquisition of the property,

Nnamdi Azikiwe Street was still known as Victoria Street. It

was stated that the Official Gazette Government Notice No.

1125 OF 8th June 1960 relates to the Registration of Titles

Ordinance and that there is nothing therein on the date of

renaming of Victoria Street to Nnamdi Azikiwe Street.

On whether the acquisition notices were signed as required

by Section 71 of the Lagos Town Planning Ordinance Law

Cap.103 LFN 1948, it was submitted that a personal

signature is not required on a Notice to make it valid and

that it sufficed if there is a stamp or mark and the name of

the authorized public officer. The cases of TSALIBAWA vs.

HABIBA (1991) 2 NWLR (PT 174) 461 at 480-481 and

ADEFARASIN vs. DAYEKH (2007) ALL FWLR (PT

13

(201

7) LP

ELR-43

378(

CA)

748) 911 at 930 were referred to.

The 1st, 3rd & 4th Respondents also referred to Black’s

Law Dictionary, 7th Ed. Pg 1387 on the meaning of the

word signature.

It was contended that the Notices of Acquisition tendered

in evidence were duly certified public documents and any

doubts as to their authenticity must be duly proved, which

the Appellants failed to do. Section 136 (1) of the Evidence

Act and the case of VEEPEE IND LTD vs. COCOA IND

LTD (2008) NWLR (PT 1105) 486 were relied upon. The

Court was urged to apply the presumption of regularity in

Section 168 of the Evidence Act and hold that the Notice of

Acquisition was regular and valid in law. The cases of

ONDO STATE UNIVERSITY vs. FOLAYAN (1994) 7

NWLR (PT 354) 551 at 559-560 and I. R. P. vs.

OVIAWE (NIG) (1992) 3 NWLR (PT 243) 572 at

585-586 were called in aid.

SUBMISSIONS OF THE 2ND RESPONDENTS

COUNSEL

It was submitted that the Appellants did not offer any

scintilla of evidence to prove that at the time of the

acquisition, Nnamdi Azikiwe Street was not in existence,

but Victoria Street. It was stated that the Respondents

adduced evidence that Victoria Street

14

(201

7) LP

ELR-43

378(

CA)

is the same as Nnamdi Azikiwe Street. That the Appellants

who had the onus failed to prove their positive assertion for

them to succeed. The case of OHOCHUKWU vs. A-G

RIVERS STATE (2012) 2 MJSC (PT II) 65 at 160 was

referred to.

The 2nd Respondent maintains that the acquisition notices

were duly signed by the stamp affixed thereon, since

signature is the act of putting one’s name at the end of an

instrument to attest its validity. The case of ONWARD

ENTERPRISES LTD vs. OLAM INT LTD (2010) ALL

FWLR (PT 531) 1503 at 1521 was relied upon. It was

argued that the Appellants sole witness was not staying at

the property and none of the occupants of the property at

the material time were called to testify that the acquisition

notice was never served on the property; and the

Appellants therefore failed to lead credible evidence to

prove that the notices of acquisition were not served. It was

conclusively submitted that the findings of the lower Court

were not perverse and that an appellate Court will

therefore not interfere. The case of OYADARE vs. KEJI

(2005) 4 MJSC 172 at 190 was cited in support.

RESOLUTION

The Appellants

15

(201

7) LP

ELR-43

378(

CA)

contend that the notice of acquisition of the property

situate at 125/127 Nnamdi Azikiwe Street Lagos is in

capable of extinguishing their rights in the property. The

Appellants averred as follows in paragraph 14 and 15 of

their Amended Statement of Claim.

“14. The Claimants claimed that the instruments mentioned

in paragraph 12 hereof are Land Acquisition notices which

served to extinguish Claimants’ rights to the premises

therein described and to vest same in the Defendants.

15. The Claimants state that the aforementioned

instrument mentioned in paragraph 12 thereof:

(a) Are not in Law Land Acquisition Notices within the

meaning of that expression under the Lagos Town Planning

Ordinance.

and

(b) Are accordingly incapable of extinguishing the right of

the Claimants to the said premises and/or of vesting the

same in the Defendant or any them.

The Appellants therefore had the evidential burden of

establishing the factual basis on which they predicated the

averments in their pleadings.

Now, the evidence adduced in proof of a case must be of

such quality that preponderates in favour of the basic

proposition

16

(201

7) LP

ELR-43

378(

CA)

which is desired to be established by the evidence. See

OBASI BROTHERS MERCHANT COMPANY LTD vs.

MERCHANT BANK OF AFRICA SECURITIES LTD

( 2 0 0 5 ) 4 M J S C 1 a t 2 6 a n d N E K A B . B . B .

MANUFACTURING CO. LTD vs. A.C.B. LTD (2004) 15

WRN 1 at 26. The Appellants by virtue of having the

evidential burden of proof must adduce evidence that is

credible, cogent and compelling in order to prove the facts

on which they premised their action. See ARASE vs.

ARASE (1981) 5 SC 33 at 37 and OKI vs. OKI (2001)

13 NWLR (PT 783) 89 at 105.

The lower Court held that the Appellants did not produce

evidence that was cogent, credible and compelling and

consequently dismissed their case. The law is that the

conclusion of the trial court on the facts is presumed to be

correct, so that presumption must be displaced by the

person seeking to upset the judgment on the facts. See

WILLIAMS vs. JOHNSON (1937)2 WACA 253,

BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT 2) 66,

EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43

and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 24.

Therefore the main thrust of this matter is whether the

Appellants have been able to displace or dislodge the

presumption that the findings

17

(201

7) LP

ELR-43

378(

CA)

of facts made by the lower Court are correct.

The Appellants have rightly submitted that a statute which

authorizes the acquisition of a person’s property has to be

construed fortissimo contra preferentes, strictly against the

authority and sympathetically in favour of the possessor of

the property against any irregularity in procedure. See

NANGIBO vs. OKAFOR (2003) 52 WRN 1 at 24-25,

AMOO vs. MAJASAN (2004) 26 WRN 156 at 167-168

and NWOSU vs. IMO STATE ENVIRONMENTAL

SANITATION AUTHORITY (2004) 20 WRN 94 at 150,

151-152. The pertinent question is whether the evidence

adduced by the Appellants is such that has established a

sympathetic interpretation of the relevant law being made

in their favour.

The Appellants anchor their position that the acquisition

notice is ineffectual on a tripodal structure: firstly, that the

acquisition notice was not served; secondly, that the

acquisition notice was not signed as required by law; and

thirdly, that at the time of the acquisition the property was

Victoria Street and not Nnamdi Azikiwe Street. To

captivate us now is whether the lower Court was correct in

its summation that the Appellants

18

(201

7) LP

ELR-43

378(

CA)

did not establish by credible evidence the tripodal structure

on which they founded their action.

In this regard, the provisions of Section 71 and 72 of the

Lagos Town Planning Ordinance Law Cap 103 LFN 1948

are relevant. They enact as follows:

71 (1) Every notice required or authorized by this

Ordinance or by any regulation made thereunder to be

served or given by or on behalf of the board shall be signed

by the chairman.

(2) Any such notice shall be deemed to have been duly

signed if it purports to bear the signature of the chairman.

72 (1) Every notice, order or other document required or

authorized by this Ordinance or by any regulations made

thereunder to be served on any person may be served -

(a) by delivering the same to such person or by delivering

the same at the abode where such person ordinarily resides

to some adult member or servant of his family; or

(b) if the abode where such person ordinarily resides is not

known, by forwarding the same by registered post

addressed to such person at his last known place of abode

or business; or

(c) if the name of such person is not known, or if service

cannot with

19

(201

7) LP

ELR-43

378(

CA)

reasonable diligence be effected under Clause (a) or (b) of

this subsection, by fixing the same on a conspicuous part of

the premises in respect of which the notice, order or other

document is issued.

(2) A notice, order or other document required or

authorised by this Ordinance or any regulations made

thereunder to be served on the owner or occupier of any

premises shall be deemed to be properly addressed if

addressed by the description of the ‘owner’ or ‘occupier’ of

such premises without further name or description.”

Taking the question of service of the notice of acquisition,

Section 72 reproduced above, provides that service is to by

delivery of the notice to where the person to be served

ordinarily resides or by sending by registered post or by

pasting it on a conspicuous part of the premises. The

evidence proffered by the Appellants to establish that the

notice of acquisition was not served, was that of their sole

witness who testified that he was not resident at the

property at the time of the service of the notices. No person

who occupied the premises at the material time was called

to testify. Hear the

20

(201

7) LP

ELR-43

378(

CA)

lower Court at page 634 of the Records:

“I note also that the sole witness stated he was not resident

as at that time of the service of Statutory Notices, therefore

he would not be aware if such Notices were indeed duly

served.”

The lower Court then proceeded to find and hold as follows

on pages 634-635:

“The Claimants herein have also not established facts in

their pleadings and through the sole witness who gave

evidence in Court that Statutory Notices were not duly

served upon the owner of the properties in question as the

time of the said acquisition. It is therefore safe to conclude

that the Claimants herein have not put before this Court

sufficient evidence to contradict the facts established by

the 1st and 3rd Defendants both in their pleadings and

evidence of their Witness in Court. There is evidence of the

1st and 3rd Defendants that Acquisition Notices were

served in accordance with the Lagos Town Planning

Ordinance, Cap 103 which are exhibited before this Court

as Exhibits K1 and K.2

I therefore believe and hold that Exhibits K1 and K2 were

served upon the owner of the premises in dispute as at the

21

(201

7) LP

ELR-43

378(

CA)

time of revocation.”

The evidence on Record supports the conclusion of the

lower Court and there is no reason why an appellate Court

will interfere.

The Appellants further contend that Section 71 of the

Ordinance was not complied with because the Notices

tendered in Court, Exhibits L1, L2 and K1 and K2 were not

signed by the Chairman but merely bore a stamp with the

inscription.

“(SGD) K.A ABAYOMI

CHAIRMAN”

It is pertinent to state that the Notices tendered in

evidence are certified copies of the public documents in the

custody of the Respondents. It was not the Notices that

were served on the owners/occupiers of No. 125/127

Nnamdi Azikiwe Street, Lagos. The specific provision of

Section 71 (1) is that the Notice to be served shall be

signed by the Chairman. I iterate that the documents in

evidence are not the Notices that were served but certified

copies of the Notices which were issued. The said certified

copies bear a stamp showing that the Notices that were

served were signed by the Chairman as required by law.

Section 168 of the Evidence Act enacts a presumption of

regularity in respects of

(201

7) LP

ELR-43

378(

CA)

22

(201

7) LP

ELR-43

378(

CA)

judicial and official acts. The presumption which is

rebuttable is expressed in the Latinism omnia

praesumuntur rite et solemniter esse acta donec probetur

in contrarim, which is more often shortened as omnia

praesumuntur rite esse acta. It means that everything is

presumed to be rightly done until the contrary is shown.

See NDUKWE vs. LPDC (2007) LPELR (1978) 1 at 63

and ANYAEGBUNAM vs. ANYAEGBUNAM (1973)

LPELR (507) 1 at 15. In the diacritical circumstances of

this matter where the particular Notices that were served

are not in evidence and the Appellants did not produce any

witness who would have knowledge as to whether the

Notices were served or not, the presumption of regularity

enured in favour of the Respondents that the certified

copies with the stamp on them shows that the Notices

which were served were signed by the Chairman as

required by law. There is nothing in the evidence adduced

by the Appellants to rebut this presumption.

Be that as it may, Section 71 (2) stipulates that a notice

shall be deemed to have been duly signed if it purports to

bear the signature of the Chairman. This provision seems to

whittle down the heights upon which

23

(201

7) LP

ELR-43

378(

CA)

the Appellants predicated their contention that the stamp

does not represent the signature on the notice. Dealing

with this issue the lower Court held as follows on page 635

of the Records:

“I have perused the documents very carefully. I see that

Exhibit K1 was written to THE OCCUPIER 127 Nnamdi

Azikiwe Street while Exhibit K2 was addressed to THE

OCCUPIER 125 Nnamdi Azikiwe Street. Both documents

were dated 19th December 1959 and it carried the maker

as

‘SGD K.A ABAYOMI

(CHAIRMAN)’

LAGOS EXECUTIVE DEVELOPMENT BOARD

The contention of the Claimant is that there was no

personal signature on the documents.

In determination of his issue, I take strength from the

pronouncement of Kekere Ekun JCA (as she then was) in

the case of ADEFARASIN V. DAYEKH (Supra) and I agree

with the submission of Learned Counsel to 1st and 3rd

Defendants that the Principle of law in the said case that

signature does not necessarily mean writing a persons

Christian name and surname but any mark which identifies

it as the act of the party.

I therefore hold that ‘(SGD) K.A ABAYOMI’ as the Chairman

of LEDB signified an

24

(201

7) LP

ELR-43

378(

CA)

authentication of Exhibit K1 & K2.

There is no contrary facts before the Court to show that as

at that point in time K.A ABAYOMI was not the Chairman of

LEDB or that the document did not emanate from his

Office. A mere allegation of the absence of the signature

without more does not amount to the document not being a

kind at acquisition in Law.

The lower Court in the above pericope from the judgment

relied on the decision of this Court in ADEFARASIN vs.

DAYEKH (supra) to hold that signature does not

necessarily mean writing a person’s Christian name and

surname. In the said case, Kekere-Ekun, JCA (as he then

was) stated:

“It is common knowledge that a person’s signature, written

names or mark on a document, not under seal, signifies an

authentication of that document that such a person holds

himself out as bound or responsible for the contents of such

a document. Signature does not necessarily mean writing a

person’s Christian name and surname but any mark which

identifies it as the act of the party.”

When it is recalled that the stipulations of Section 71 (2) of

the Ordinance is that the

25

(201

7) LP

ELR-43

378(

CA)

notice shall be deemed as duly signed “if it purports to bear

the signature”, then the certified copies tendered in

evidence and bearing the stamp which purports to be the

signature of the Chairman satisfy the requirements of

Section 71 that the notice shall be signed by the Chairman.

There is therefore no reason to interfere with the finding of

the lower Court that the “SGD K.A ABAYOMI” as the

Chairman of LEDB signified an authentication of the

Notices.

The Appellants further take issues with the address stated

on the Notices as No. 125/127 Nnamdi Azikiwe Street,

Lagos and make the case that as at the date of the Notices,

there was no Nnamdi Azikiwe Street, but Victoria Street.

The Appellants in paragraph 4.04 of their Appellants’ Brief

rely on Official Gazette Government Notice No. 1125 of 8th

June 1960, Registration of Titles Ordinance for this

contention. The said Government Notice No. 1125 of 8th

June 1960 has been copied on page 160 of Volume I of the

Records. It deals with particulars of application made for

first registration of titles. There is nothing therein on the

change of name of Victoria Street to

26

(201

7) LP

ELR-43

378(

CA)

Nnamdi Azikiwe Street. Further instructive is that there is

no mention of Victoria Street whatsoever in the said

Government Notice No. 1125. It therefore does not

establish the basic proposition being propounded by the

Appellants, which is that at the time the Notices were

issued the street was still known as Victoria Street and not

Nnamdi Azikiwe Street.

In any event, there is no dispute as to the identity of the

property subject of the Notices of Acquisition.

Furthermore, there is no disceptation as to whether

Victoria Street is different from Nnamdi Azikiwe Street or

vice versa. The lower Court in finding that the Appellants

did not prove their assertion as it relates to the street name

reasoned thus:

“Furthermore with regards to the addresses 125 or 127

Nnamdi Azikiwe Street the evidence before this Court is

that Nnamdi Azikiwe Street is one and the same as

VICTORIA Street.

In Exhibit J of 1st March 1951, the property was referred to

as ‘Victoria Street’

In the Lagos Town Planning (Redeclaration of Planning

Area) Order in Council 1950, it was also referred to as

‘Victoria Street’. In the Notices of

27

(201

7) LP

ELR-43

378(

CA)

19th December 1959, it was referred to as ‘Nnamdi Azikiwe

Street’. The Claimants did not controvert the fact that both

streets were and are same. Similarly, there is no evidence

before this Court to show that as at December 1959 or

February 1960 the ‘Victoria Street’ was not known or

addressed as ‘Nnamdi Azikiwe’.”

(See page 636 of the Records)

Once again, the lower Court is on terra firma and there is

no basis to interfere with the findings made. It is

rudimentary law that the evaluation of evidence and the

ascription of probative value thereto reside within the

province of the Court of trial that saw, heard and assessed

the witnesses. Where a trial Court unquestionably

evaluates and justifiably appraises the facts, it is not the

business of an appellate Court to substitute its own views

for the view of the trial Court, however, an appellate Court

can intervene where there is insufficient evidence to

sustain the judgment or where the trial Court fails to make

proper use of the opportunity of seeing, hearing, and

observing the witnesses or where the findings of facts by

the trial Court cannot

28

(201

7) LP

ELR-43

378(

CA)

be regarded as resulting from the evidence or where the

trial Court has drawn wrong conclusion from accepted

evidence or has taken an erroneous view of the evidence

adduced before it or its findings are perverse in the sense

that they do not flow from accepted evidence or not

supported by the evidence before the Court. See EDJEKPO

vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007)

LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990)

LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5

SC 291 at 320 and FASIKUN II vs. OLURONKE II

(1999) 2 NWLR (PT.589) 1 or (1999) LPELR (1248) 1

at 47 – 48.

It is beyond dispute that the lower Court duly appraised the

evidence, the findings and conclusions arrived at by the

lower Court accord with common sense and reason based

on the available evidence. At the risk of being prolix, I

restate that an appellate Court will not substitute its own

views with those of the trial Court, when as in the instant

appeal, the trial Court has unquestionably evaluated the

evidence and justifiably appraised the facts. See

NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and

AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534

or (1998) LPELR (222) 1 at 19

29

(201

7) LP

ELR-43

378(

CA)

– 20. The evaluation of evidence and the findings made by

the lower Court were definitely not perverse. Therefore

there is absolutely no basis on which an appellate Court

can intervene. From all I have said thus far, the inevitable

summation is that the Appellant has failed to displace the

presumption that the conclusions of the lower Court on the

facts are correct in order to upset the judgment on the

facts: EHOLOR vs. OSAYANDE (supra) at 43 and ONI

vs. JOHNSON (supra) at 24.

The concatenation of the foregoing is that the issue for

determination will indubitably be resolved against the

Appellants. The appeal is totally devoid of merit; it fails in

its entirety and it is hereby dismissed. The judgment of the

lower Court is hereby affirmed. There shall be no order as

to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full

agreement with the judgment prepared by my learned

brother, Ugochukwu Anthony Ogakwu, J.C.A., which I had

the honour of reading in draft with nothing extra to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I

have had a preview of the judgment just

30

(201

7) LP

ELR-43

378(

CA)

delivered by my learned brother, UGOCHUKWU ANTHONY

OGAKWU, JCA and I agree with the reasoning contained

therein and the conclusion arrived thereat; except to add

for emphasis;

It is trite law that an appellate Court will not interfere or

disturb the findings of a lower Court unless a substantial

error is shown or where they are perverse or unsupported

by evidence. See the case of OJENGBEDE V ESAN (2001)

92 LRCN 3326; MADAKI v. CIROMA & ORS (2016)

LPELR-40268 CA.

The above implies that since the lower Court arrived at its

decision in a coherent and logical way backed with the

evidence available, there is no reason why this Court

should intervene with same. The decision of the lower

Court is hereby affirmed and the appeal is hereby

dismissed for lack of merit.

I abide by the consequential orders.

31

(201

7) LP

ELR-43

378(

CA)

Appearances:

B. O. Atolagbe, Esq. For Appellant(s)

A. O. Fayemiwo, Esq. with him, O. O. Sogbetun,Esq. and E. Ogazi, Esq. for the 2nd Respondent.

1st, 3rd and 4th Respondents absent and notrepresented by counsel. For Respondent(s)

(201

7) LP

ELR-43

378(

CA)