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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