1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, IN THE WUSE JUDICIAL DIVISION, HOLDEN AT COURT NO. 18, JABI, ABUJA. BEFORE HIS LORDSHIP: HON. JUSTICE O.A. MUSA. Suit No. /CV/596/2013 BETWEEN: 1. JUBRIL AGABA AND 1. DIKKO MOSES 2. APATA ISHAKA DATE: 23 rd March, 2016. JUDGMENT The Plaintiff, Joshua Agaba, later substituted with Jubril Agaba instituted this action against the Defendant via a Writ of Summons, and Statement of Claim dated the 20 th day of September, 1999. The Plaintiff’s claim as per paragraph 27 of his amended Statement of Claim filed on the 14 th day of April, 2003 are as follows; a. A Declaration that, the plaintiff is the owner and or the only person that, was at all times material to this suit entitled to the right of occupancy or the right to use and occupation for the piece and parcel of land measuring approximately 3920 sq. meters, and lying and situate in between Abuja – Keffi Road, and Nyanay Karu road, Nyanya in the Abuja Municipal Area Council of the Federal Capital Territory, Abuja, Nigeria and which said piece and parcel of land previously had one single room apartment and another building made up of four rooms in it before the creation of the Federal Capital Territory, Abuja. b. A Declaration that, the Defendant by entering into Plaintiff’s piece and parcel of land aforesaid and erecting buildings in same without Plaintiff’s consent or approval are trespass. DEFENDANTS / APPLICANTS PLAINTIFF / RESPONDENT
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IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, · purported judgment of Grade 1 Area Court, Karu – Abuja, in 1993, Exhbit ‘A2’ was the purported receipt/agreement dated
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IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY,
IN THE WUSE JUDICIAL DIVISION,
HOLDEN AT COURT NO. 18,
JABI, ABUJA.
BEFORE HIS LORDSHIP: HON. JUSTICE O.A. MUSA.
Suit No. /CV/596/2013
BETWEEN:
1. JUBRIL AGABA
AND
1. DIKKO MOSES
2. APATA ISHAKA
DATE: 23rd March, 2016.
JUDGMENT
The Plaintiff, Joshua Agaba, later substituted with Jubril Agaba instituted this
action against the Defendant via a Writ of Summons, and Statement of
Claim dated the 20th day of September, 1999. The Plaintiff’s claim as per
paragraph 27 of his amended Statement of Claim filed on the 14th day of
April, 2003 are as follows;
a. A Declaration that, the plaintiff is the owner and or the only person
that, was at all times material to this suit entitled to the right of
occupancy or the right to use and occupation for the piece and
parcel of land measuring approximately 3920 sq. meters, and lying
and situate in between Abuja – Keffi Road, and Nyanay Karu road,
Nyanya in the Abuja Municipal Area Council of the Federal Capital
Territory, Abuja, Nigeria and which said piece and parcel of land
previously had one single room apartment and another building
made up of four rooms in it before the creation of the Federal Capital
Territory, Abuja.
b. A Declaration that, the Defendant by entering into Plaintiff’s piece
and parcel of land aforesaid and erecting buildings in same without
Plaintiff’s consent or approval are trespass.
DEFENDANTS / APPLICANTS
PLAINTIFF / RESPONDENT
2
c. A Declaration that based on the maxim quicquid plantatur solo solo
cedit the Plaintiff is the legitimate owner of the building illegally
erected on his said piece and parcel of land by the Defendants.
d. A Declaration that, the Plaintiff is the person that is entitled to
compensation due in respect of structures situate on the piece and
parcel of land subject matter of this suit from the Federal Ministry of
works and Housing or any other person or authority.
e. An order directing the 2nd Defendant to pay the sum of N25, 364,
120.00 (Twenty – Five Million, Three Hundred and Sixty – Four Thousand,
One Hundred and Twenty Naira) only, and any other sum of money
whatsoever, which he has received from the Federal Ministry of Works
and Housing or her agent Lechez Consultants Limited as
compensation due in respect of the structures that are situate on the
said piece and parcel of land, to the Plaintiff.
f. An Order directing the 2nd Defendant to pay over any sums of money
that he have received in any name whatsoever as compensation due
in respect of structures that are situate on the said piece and parcel
of land from Federal Ministry of Works and Housing or her agent
Lechez Consultants Limited to the Plaintiff
g. The sum of N5, 000, 000.00 (Five Million Naira) only as general
damages for trespass, (sic).
The learned counsel to the plaintiff, at the hearing of the matter, the Plaintiff
called four (4) witnesses, i.e. Mr. Augustine Tanze (the Plaintiff himself),
(PW1), Mr. Simon Nnagbolu (PW2), who was given the Power of Attorney by
the Plaintiff regarding the piece and parcel of land subject matter of this
suit, Mrs. Jumai Danjuma Robo (PW3), who is the younger sister to one
Usman, who also owns a piece of land that has boundaries with the
disputed land and Mr. Subpoened Federal Ministry of Works and Housing,
represented by Mr. Yakubu Mohammed.
The Plaintiff (PW1) tendered seven (7) Exhibits, which were admitted and
marked as Exhibits ‘A1’ - ‘A7’. Exhibits ‘A1’, to ‘A6’ tendered through Mr.
Yakubu Mohammed of the Federal Ministry of works and Housing were the
indemnity certificates for the payment of compensation to the claimants
3
during the construction of Abuja Nyanya Keffi Road project and the said
Exhibits were from the archives of the Federal Ministry of Works and Housing,
while Exhibit ‘A7’, was the Power of Attorney executed between late
Jushua Agaba (Father of Jubril Agaba), and Mr. Simeon Nnagbolu.
Issues were joined and the Defendant called two (2) witnesses, Dauda
Knudowan DW1 (the 1st Defendant) and Christopher Omeh DW2 (The 2nd
Defendant). The Defendant tendered four (4) Exhibits, which were admitted
and marked as Exhibits ‘D1’ – ‘D4’, respectively. Exhibit ‘D1’, was a
purported judgment of Grade 1 Area Court, Karu – Abuja, in 1993, Exhbit
‘A2’ was the purported receipt/agreement dated the 5th day of January,
1982, Exhibit ‘D3’ was the Certified True Copy of the Certificate of
occupancy with Reference Number MZPT/539, dated the 23rd day of
March, 1993.
Exhibit ‘D4’ was evidence of payment of the sum of N7, 215, 250.00 to the
2nd Defendant by Lechez Consultants as agent of the Federal Ministry of
Works and Housing, the company charged with the responsibility of
disbursing compensation funds to beneficiaries as at the time.
In his final written address, learned counsel to the Plaintiff, raised four (4)
issues for determination, as follows,
1. Whether the Plaintiff has discharged the onus placed on him as
Plaintiff in respect of the land in dispute so as to warrant the grant of
the declarations sought by him?
2. Prior to the creation of the Federal Capital Territory, between the
Plaintiff and the Defendants who was in possession and had a better
title to the land in dispute?
3. Whether the original source of title is invalid, whether the acquisition of
a Certificate of occupancy can confer title to a party as against a
person who had a better title?
4. Whether the Plaintiff is entitled to the compensation paid in respect of
the land subject matter of this suit and structures therein?
In arguing these issues, learned Plaintiff’s counsel submitted on issue one,
which is, ‘Whether the Plaintiff has discharged the onus placed on him as
Plaintiff in respect of the land in dispute so as to warrant the grant of the
4
declarations sought by him?’ that, the burden of proof lies on the Plaintiff in
the first instance who may prove his claim for declaration of title in any of
the five under listed ways as decided in the celebrated case of IDUNUN Vs.
OKUMAGBA (19760 9 – 10 S. C. Vis
a. By traditional history,
b. By production of document of title,
c. By virtue acts of ownership over a sufficient length of time numerous
and positive enough as to warrant inference that the person is the true
owner,
d. By acts of long possession, and
e. By proof of possession of connected or adjacent land in circumstances
rendering it probable that, the owner of the land in dispute.
Counsel submitted that, in this respect, the Plaintiff in discharging this
burden called four (4) witnesses. He added that, PW 1, who is the Plaintiff
gave clear, vivid and uncontroverted account of how his late father (Jubril
Agaba) who started this case acquired the piece and parcel of land
subject matter of this suit from the Chief of KARU as an outright gift.
Counsel submitted that, the PW1 gave evidence that, the piece and parcel
of land given to his father by way outright gift by the Chief of Karu was a
large expanse of land lying along Kaffi Road. He stated that, according to
him, the land was given to his father and other staff of the Federal Ministry
of Works who were working under the Road maintenance unit while residing
at Nyanya, which was then in Benue/Plateau State ever before the creation
of the Federal Capital Territory, Abuja in 1976.
It was counsel further submission, that the Plaintiff prove possession by giving
evidence on how his late father built on his own portion of the land, a round
house and four (4) rooms and continued farming on remaining portion.
Equally, submitted that, the evidence of the Plaintiff was that, there were
other persons involved in sharing of the large expanse of land given as an
outright gift by the Chief of Karu, which includes Mr. Usman, also a co –
worker of the Plaintiff’s father at the Federal Ministry of Works and one Musa
Magaji, who was also given a portion.
5
More so, counsel added that, the Plaintiff’s evidence was that, the 1st
Defendant (Dauda Knudowan) though a worker of the Federal Ministry of
Works was not working with Plaintiff’s father (Joshua Agaba), Mr. Usman and
Musa Magaji and was not part of the sharing of the outright gift by Chief of
Karu because he was working elsewhere.
He contended that, the evidence of Plaintiff’s witness especially PW4 –
Musa Magaji, which was corroborated by other witnesses was that, it was
one Manasseh, the 1st Defendant’s brother who had boundary with them,
(i.e. Joshua Agaba, Mr. Usman and Musa Magaji) and it was the said
Manasseh that gave 1st Defendant where he built having returned from
service.
He maintained that, the clear, vivid and corroborated and uncontradicted
evidence before this court was that, 1st Defendant (Dauda Knudowan)
offered to buy the portion of land belonging to Usman but could not and
this laid to the said portion of land belonging being subsequently sold to Mr.
Simeon Nnagbolu (PW2) by Mr. Usman’s brother – in – law, Danjuma Robo,
the husband of Usman’s sister, Jumai Robo, one of the witnesses for the
Plaintiff in this case.
He also maintained that, evidence before the court is to the effect that, Mr.
Dauda Knudowan (1st Defendant) had sued Danjuma Robo, late Usman’s
brother – in – law and Jumai’s husband, Mr. Danjuma Tanze and Mr. Simeon
Nnagbolu in court at several times over the piece and parcel of land in
dispute but lost out in all the suits.
Counsel submitted that, the evidence of the outright gift of the land in
dispute to the plaintiff’s father by the Chief of Karu was corroborated by the
PW2, PW3, and PW4. He said that, the Defendant also admitted the
plaintiff’s evidence that plaintiff came into occupation of the disputed land
through the Chief of Karu and that, the 1st Defendant was on service
elsewhere (working at Makurdi). Counsel referred the court to paragraphs
3f, and g of the Further Amended Statement of Defence.
6
Learned counsel to the Plaintiff in his submission contended that, assuming
the disputed land belongs to the 1st Defendant, as well as the large
expanse shared by Usman and Musa Magaji, he would not have been
standing by and watching the portions of land being sold to others by Musa
Magaji and Usman’s relatives. It was his contention also that, if the land in
dispute, which formed a part of a large portion given by the Chief of Karu
belongs to the 1st Defendant, he would not have been negotiating to buy
what belongs to him from Late Usman’s family. On the doctrine of standing
by, counsel referred the court to the case of OKORIE UWAIS AKA & ORSVS.
NGWULIAKIS AGBA & ORS (1955) 15 WACA 63.
On this leg, counsel submitted that, upon the above evidence before the
court, Plaintiff has clearly discharged the burden placed on him by showing
the source of his title which was admitted by the Defendants and therefore
need not show further proof, especially upon the said admission.
In another breath, counsel submitted that, Plaintiff has further discharged
this burden by giving clear account of long possession and various act of
ownership over a sufficient length of time. That the Plaintiff proved his case
also by calling on persons who own adjoining lands around the disputed
land who corroborated Plaintiff’s evidence.
Counsel maintained therefore, that, the Plaintiff has discharged the burden
of proof place on him. And stated that, having discharged this burden, the
burden therefore shifts to the Defendants who admitted that, the land was
given to the Plaintiff by the Chief of Karu, but because according to him,
the land originally belong to his maternal uncle named Yelenu and
Wisaniyiya, who were the first to farm on the disputed land. It is his assertion
that his maternal uncle gave the land to his father due to his father’s
marriage to his mother and that, he (1st Defendant) came into the land with
the consent of the Chief of Nyanya and his father.
Furthermore, counsel state that, 1st Defendant did not explain to the court
why he needed the consent of the Chief of Nyanya to use the land as
poultry. He contended that, the fact is no other fact that, the Chiefs were
the custodians of the people’s land.
7
In furtherance, counsel submitted that, 1st Defendant having admitted
Plaintiff’s source of title, the onus therefore shifts on him to prove that even
though the Chief of Karu gave them the land, that, it was by his consent
and that, Chief of Karu did not have title over same. Counsel referred he
court to the case of MADUMMA VS. JAMBO (2001) 15 NWLR (Pt. 736) at pg.
461, particularly at Pg. 476, para C – E, p, 472 – 478, paras H – B.
It was also counsel’s submission that, unfortunately, aside from the account
of the DW1 who is the 1st Defendant, no other witness was called by him to
corroborate his evidence and or to contradict the evidence of the Plaintiff,
which is clear and vivid. He urged the court to grant all the declarations of
the Plaintiff having proved his case with uncontroverted evidence.
Counsel to the Plaintiff goes further to say that, the Plaintiff in trying to bring
all the facts relevant for the just determination of this case upon a Motion
on Notice, dated the 15th day of April, 2001, but filed on the 290th day of
June, 2011, prayed this court for leave to further amend his Amended
Statement of Claim by adding new paragraphs (11a), (11b), (19a), and
(19b) in terms of the under listed portion of the further Amended Statement
of Claim attached to the affidavit in support of the application. The
underlisted paragraphs sought to be amended reads thus
(11a) the Plaintiff avers that another member of the Road maintenance Unit
of the Federal Ministry of Works and Housing, Mr. Usman had a share in
the piece and parcel of land given by the Chief of Karu, bout when he
died, his sister Jumai who was then married to Danjuama Robo
inherited the land and building therein,
(11b) the Plaintiff averts that, the 1st Defendant in the year 1990 sued
Danjuama Robo also known as Danjuma Karu at the Area Court Grade
1, Karu, Abuja, in respect of the piece and parcel of land and building
therein, which his wife Jumai inherited from her late brother, Usman and
lost at the trial court, Plaintiff pleads and will rely on the Certified Trued
Copy of the Record of proceedings of the trial Area Court at the trial of
this suit,
8
(19a) the Plaintiff averts that sometime in the year 1993, the 1st Defendant
sued his father’s Attorney, Mr. Simeon Nnagbolu, at the Grade 1 Area
Court, Jiwa over the piece and parcel of land subject matter of this
suit, but the suit was struck out on the 18th day of march, 1994 due to
lack of diligent prosecution. The plaintiff pleads and will rely on the
Certified True Copy of the Record of Proceedings in case No.
CV/168/93 at the trial of this suit.
(19b) the plaintiff averts that, after the Grade 1 Area Court, Karu, Abuja struck
out the suit, that, the 1st Defendant instituted against his father’s Attorney
over the piece and parcel of land subject matter of this suit, he
commenced another action at the High Court of Justice, Abuja against
his father’s Attorney and Abuja Municipal Area Council over the same
parcel of land. This suit which has its Suit No. as FCT/HC/CV/313/95 was
dismissed on the 12th day of May, 1998 due to lack of diligent
prosecution. Plaintiff pleads and will rely on the Certified True Copy of
the Court Ruling, dated the 12th day of May, 1998 at the trial.
He submitted that, the Honourable Court on the 26th day of January, 2012
heard and refused Plaintiff’s application to Further amend his claim by
inserting the above under listed paragraphs on a single fact that, granting
same will lead to delay in this case even though granting same would have
helped in the just determination of this case as the evidence of PW1, PW2,
PW3, and PW4 on oath and under cross – examination.
He stated that, the Plaintiff clearly placed these facts before the court and
since the Defendants have not opened their defence and therefore would
never have been prejudiced since they had opportunities to rebuff same
during their defence the refusal of this application will lead to a miscarriage
of justice against the Plaintiff.
He contended that, in the court’s wisdom, having refused the amendment
of the pleading, he was of the opinion the judicial decisions sort to be
pleaded and placed before this court are still relevant to this case. Counsel
submitted that, Plaintiff’s witnesses in their evidence having placed these
facts before the court both on Written Statement on Oath and cross –
examination, the court is enjoined to look at and consider the judicial
decisions in this case.
9
He further maintained that, statutes or legal results such as judgments of
courts are not facts, which must be specifically pleaded before the court
may consider same. The parties can present or merely state the material
facts as in this case and present in argument the legal results without
pleading same. He said, courts are enjoined to take judicial notice of the
decisions of another court and such judicial decisions in effect becomes
law.
Learned counsel submitted that, he should discharge his burden either by
producing the bank teller that he paid in the given account or producing a
receipt give to him by the Plaintiff or adducing any other admissible
evidence, oral or documentary establishing that, he had paid his arrears of
rent of over three years.
Again, counsel submitted that, the PW1, PW2, PW3, and PW4 having in their
evidence on oath and cross examination informed this courts of decisions of
courts against the Defendants, this court is enjoined to consider this
decisions even though not specifically pleaded. In this regard, counsel
referred the court to the cases of REVANDERVELL’S TRUST (NO. 2), WHITE Vs.
VANDERVELL TRUST LIMITED (1974) ALL ER 205 and ANYANWU Vs. MBARA (1992)
5 NWLR (Pt. 242) Pg. 386 @ 389 ration 1 ESP at Pg. 13, paras A – C.
Counsel urged the court to consider the unreported case of DAUDA
KNUDOWAN Vs. DANJUMA KARU, SUIT NO CV/51/90, which judgment was
delivered by Musa D. Abubakar (Judge) with M. Abubakar Gamu (Alkali
member) on the 5th day of June, 1990 against the 1st Defendant in this case
and which part of the judgment reads, thus;
“This is a case in which the Plaintiff brought the Defendant that he was
the person who owns the land in which one late Usman build, he added
that, he borrowed the purported land to that late Usman but the
Defendant who is not known to him as a heir to the deceased person
sold the land to some body as such he wanted to collect his land back
to him….
10
One DW1 Bako Karu after affirmation and said he knew the place in
dispute belong to late Usman, they have been visiting him when he was
alive. So the only question and answer of DW2 is enough to convince the
court that, the place does not belong to Dauda at all, if he is the owner,
he won’t allowed selling of the building and also priced it and later he
part payment is to be made for the selling the Defendant and the rest
should get him informed due to the above mention fact, the purported
building is proved to be for late Usman, whose beneficiaries are supposed
to inherit it ….. The court passes its judgment in favour of the Defendant.
The Plaintiff has no hand over the building that is the judgment. ”
Counsel relied on the on the Certified True Copy of the said unreported
judgment and urged the court to hold in line with the decision in DAUDA
KNUWODAN Vs. DANJUMA KARU (SUPRA), which borders on the same large
piece of land which includes the land subject matter of this suit, which was
given to Mr. Usman and Plaintiff’s father that the land subject matter of this
case does not belong to the 1st Defendant and as such, he does not have
the right to transfer same to the 2nd Defendant.
The learned counsel contended that, the unreported case of DAUDA
KNUDOWAN Vs. ABUJA MUNICIPAL AREA COUNCIL & MR. SIMEON NNGBOLU,
Suit No. FCT/HC/CV/313/95, which said case was a case instituted against
AMAC and the PW2 (Mr. Simeon Nnagbolu) by the 1st Defendant in this case
over the same land subject matter of this suit. Counsel submitted that, this
suit was dismissed by Dangben Mensen J. (as she then was) against the 1st
Defendant in this case on the 12th day of May 1998, with award of cost
against him. Counsel referred the court to the Certified True Copy of the
said Ruling of the unreported case.
Counsel submitted that, the unreported case of Area Court of the Federal
Capital Territory between DAUDA KNUDOWAN of NYANYA Vs. SIMEON
NNAGBOLU, SUIT NO. CV/168/93, which is a case of claim involving the land
subject matter in this suit by the 1st Defendant against PW2 (Simeon
NNagbolu.) He stated that, the case which was struck out against Dauda
Knudowan (1st Defendant) in this case and cost awarded against him on
the 18th day of March, 1994. Counsel referred the court to the Certified True
Copy of the Ruling for court’s consideration.
11
In this regards, counsel urged the court to hold that, upon the authority of
the decided cases between the parties, which are now made available to
this court, these decisions operated as law against the Defendants in this
case and in favour of the plaintiff to the effect that Defendants are
trespasser and therefore Plaintiff have discharged the burden of proof
placed on him and is entitled to the reliefs sought by him.
It was counsel’s further submission that, the Defendant in this case upon the
motion on Notice, dated the 10th day of October, 2006, and filed on the
same date specifically prayed this court to amend their joint Statement of
defence by inserting or adding paragraph 4(a) immediately after
paragraph (4) thereof as set out in the schedule thereto, thus,
“2nd Defendant avers that, having been put in possession of the land by 1st
Defendant, he located overseer Tanze and bought over his native grass
houses of three rooms and one stores for N8, 000.00 (Eight Hundred Naira)
only, receipted of which he acknowledge vide a written evidence of
transaction, dated the 5th day of January, 1982. The said
acknowledgment/receipt per that transaction is hereby pleaded.”
Counsel argued that, the failure of the Defendant to call Joshua Agaba’s
wife and any other person that, purportedly witness the transaction of 1982
means that, if they are called they will give evidence that will be adverse to
their case. Counsel place reliance on the case of ODUCHE Vs. ODUCHE
(2006) NWLR (Pt. 972) at Pg. 012 ESP at 120 paras D – E.
In the same vein, he argued that, the sale receipt / agreement is not
admissible for non – registration and therefore should be expunged or in the
alternative that, no weight be attached to same.
Further, counsel submitted that, Exhibit ‘D4’, tendered by 2nd Defendant to
show that, he was paid only N7, 215, 250.00 (Seven Million, Two Hundred
and Fifteen Thousand, Two hundred and Fifty thousand naira) only, should
be considered alongside Exhibit ‘A1’, to ‘A6’, tendered by Mr. Yakubu
Mohammed of the Federal Ministry of Works and Housing, which is the
authentic evidence to show how much was paid over the land and
improvements on the disputed land.
12
He argued that, there was no evidence as to any other person that, the 1st
and 2nd Defendants who claim to have put up structures on the land in
dispute and such were paid compensation. He added that, it therefore
does not matter what ever name he had used in the collection of the said
compensations totaling N25, 364, 120.00 (Twenty – five Million, Three
Hundred and Sixty four Thousand, One Hundred and Twenty Naira) only.
Finally on this issue, counsel argued that, it is doubtful that 2nd Defendant
took possession in 1982 undisturbed, but 1st Defendant is now litigating over
ownership of the land he has given out since 1982 with Plaintiff and Mr.
Simeon Nnagbolu in 1993 and 1997, respectively. He submitted that, this
fact was acknowledged by DW1 under cross examination.
Again, he argued that, it is also doubtful and create a lot of suspicion on
Exhibit ‘D3’, which is the Certificate of occupancy that the 2nd Defendants
was in different courts before during and after then claiming ownership of
the disputed land.
On issue No. 2, which is prior to the creation of the Federal Capital Territory,
between the Plaintiff and the Defendants, who was in possession and had a
better title to the land in dispute?
In arguing this ground, counsel urged the court to consider the arguments
and submissions in Issue No. 1, and resolve this issue in favour of the Plaintiff.
He contended that, evidence on record is clear that Plaintiff’s father was in
possession before the creation of the Federal Capital Territory and build one
round house and four rooms on the disputed land while he was farming on
the remaining land.
Also, counsel submitted that, evidence was laid which was corroborated by
1st Defendant to the effect that the Plaintiff was in possession. He stated
that, the 1st Defendant also admitted Plaintiff’s evidence that the land was
given to the Plaintiff by Chief of Karu but could not prove or corroborate his
own assertion of being the original owner.
13
On this leg, counsel urged the court based on clear and uncontroverted
evidence in court to hold that Plaintiff had a better title over the disputed
land and was in possession of same even before the creation of the Federal
Capital Territory, Abuja. He submitted that, this possession was never
disturbed until the Defendants trespass into the land after the creation of
the Federal Capital Territory, Abuja.
He maintained that, the 1st Defendant was never in possession. And stated
that, he claim to the effect that, the land devolved on him through his
maternal home has not been corroborated by any single witness. This lack
of corroborative evidence makes his claim unbelievable. He argued court
may have to ask if the 1st Defendant who claims as an indigenous owner of
the land is saying the truth why he has not been able to produce a single
witness to corroborate his claim.
On Issue 3, which is, ‘Where the original source of title is valid, whether the
acquisition of a Certificate of Occupancy can confer title to a party as
against a person who has a better title?
Counsel submitted that, Exhibit ‘D3’, is a purported Certified True Copy of
the Certificate of Occupancy with Reference Number MZPT/539, which 2nd
Defendant claimed to have been granted him in 1993 over the piece and
parcel of land in dispute.
It was his submission, equally that, according to 2nd Defendant, the land in
dispute was given to him as a gift by the 1st Defendant in 1982. Counsel c-
strongly submitted that, the argument canvassed both in Issue No. 1 and
Issue No. 2 that, 1st Defendant does not have title over the disputed land.
He stated that, even decided cases have also shown to that effect and he
could therefore not have given to the 2nd Defendant (Mr. Christopher
Omeh) that which he does not have because he does not have a better
title than the Plaintiff, whose father (Joshua Agaba) has a better right to the
use and occupation of the land in dispute.
Learned counsel contended that, the claim of the 2nd Defendant that, he
bought from Plaintiff’s father three (3) rooms and one (1) store built of native
grass goes to no issue as against plaintiff’s claim and corroborated
evidence that, his father built one round house and four rooms.
14
Counsel urged the court not to attach any weight to the inadmissible
receipts tendered by him and also on the fact that, the said
receipt/agreement was an after though created to prejudice the Plaintiff.
He stated that, the 1st Defendant never confronted plaintiff’s father who
started this case with the receipt but chose to do same after the death of
his father (Joshua Agaba), simply to prejudice the Plaintiff. Counsel
submitted that, there is no corroboration of the purported transaction by
any of the witnesses that were alleged to have witnessed the transaction.
He submitted that, the evidence of the Defendants based on the content
of an earlier proceedings where they alleged that, plaintiff’s father stated
that, he had no hand in the institution of the case goes to no issue since
they have not produced or tendered before the court, the records of the
proceedings of the court where the alleged statement was made.
Again, he submitted that, the source of the 2nd Defendant is therefore
defective, having been obtained from a person (1st Defendant0 who had
no title or better right to the use and occupation of the land in dispute.
Further, he argued that, the Certificate of occupancy purportedly granted
to the 2nd Defendant according to his evidence was based on the
purported right given to him by 1st Defendant who in the first place had no
title or right of possession over the land in issue.
It was his further submission that, it is the law that, where Certificate of
occupancy has been granted to a person who had not proved a better
title, then, such grant goes to no effect and courts are enjoined to set aside
such grant. Counsel relied on the Supreme Court case of OGUNLEYE Vs. ONI
(1990) 2 NWLR (Pt. 135) P. 795 at 784, and ALHAJI ABDUL SALAMI TENIOLA Vs.
ALHAJI MUSTAPHA OLOHUNKU (1999) NWLR (Pt. 602).
Counsel urged the court to set aside the purported grant of the Certificate
of Occupancy no. MZPT/539 purportedly granted to the 2nd Defendant by
the Abuja municipal Area council, dated the 23rd day of March, 1993, and
to resolve issue No. 3, in favour of the Plaintiff and to grant him all the
declarations as prayed.
15
He finally argued that, if the purported Certificate of occupancy was truly
granted to the 2nd Defendant in 1993, the 1st Defendant could not have
sued the Abuja Municipal Area council and Simeon Nnagbolu in 1995 in Suit
No. FCT/HC/CV/313/95 over the same land, which said case, was dismissed
on the 12th day of May, 1998, against the 1st Defendant.
Finally on the last issue, which is,
‘Whether the Plaintiff is entitled to compensation paid in respect of the land
subject matter of this suit and structures therein?’
Learned Plaintiff’s counsel submitted that, evidence has shown that,
Plaintiff’s father has a better right to the use and occupation of the
disputed land. He stated that, evidence has shown that, the Plaintiff’s father
was in occupation prior to the creation of the Federal Capital Territory,
Abuja, in 1976, wherein he built one round house and four rooms while
farming at remaining portion of the land.
It was also his submission that, there also evidence to the effect that, a
power of Attorney was given to one Simeon Nnagbolu over the piece and
parcel of land while Plaintiff’s father was away. He stated further, that there
also evidence to the effect that, the 1st Defendant & 2nd Defendants
trespass into the land when 1st defendant unlawfully placed the 2nd
defendant on the land he maliciously demolished the entire structure
therein and placed his own structures.
He said it is also in evidence that, the Plaintiff’s father’s structure where
originally marked by the government authorities for compensation before
they were destroyed unlawfully by the 2nd Defendant who admitted that,
he did it.
Counsel submitted that, 1st and 2nd defendants having trespassed into the
disputed land and collected compensation, which ordinarily would have
been paid to the Plaintiff should be directed to return the compensation to
the Plaintiff.
16
He further submitted that, it is the law that, what wavers that is placed on
the land belongs to the owner of the land based on the maxim quiquid
plantour solo solo cedit and so urged the court to hold that, the Plaintiff is
the legitimate owner of the buildings illegally erected in his said land by the
Defendants and that, the total sum of N25, 364, 120.00 (Twenty – five Million,
Three Hundred and Sixty – four Thousand, One Hundred and Twenty Naira)
only paid as compensation be returned back to him.
In conclusion, counsel submitted that, the Plaintiff has by preponderance of
evidence proof his claim against the Defendants. He said the Plaintiff has
proved that, he has a better title and right of possession over the piece and
parcel in dispute as against the Defendants.
Equally, counsel submitted that, the Plaintiff has proved that, the 1st
Defendant has no title over the piece and parcel of land in dispute which
he could transfer to the 2nd Defendant. He believe that, the Plaintiff has
proved that, the piece and parcel of land in dispute was given to his father
by way of outright gift by the Chief of Karu.
He also submitted that, the Plaintiff has established that, the Certificate of
Occupancy tendered by the 2nd Defendant is not valid since his source of
title is not valid. Again, he maintained that, the Plaintiff has established that
being the owner of the land in dispute and structures therein, he is the
person that is entitled to compensation payable in respect of such
structure.
Finally, he argued that, based on the argument proffered above, the
plaintiff has proved his case and is entitled to the grant of all the prayers
contained in his statement of Claim. He urged the court to grant same.
On the other hand, the Defendant’s counsel, T. Tabai Esq., in his Final
Written Address, formulated two (2) issues for determination by the court,
thus;
1. Whether the Plaintiff has sufficiently proved ownership of the land in issue
so as to warrant his claim for the damages in trespass?
2. Whether the Plaintiff is entitled to the compensation paid in respect of
the structure or structures on the portion of land in issue?;
17
In arguing these issues, counsel submitted on issue one that, a party
claiming declaration of title to land has an option of five ways to prove
such title, and they are;
a. By traditional history,
b. By production of document of title,
c. By virtue acts of ownership over a sufficient length of time numerous
and positive enough as to warrant inference that the person is the true
owner,
d. By acts of long possession, and
e. By proof of possession of connected or adjacent land in circumstances
rendering it probable that, the owner of such connect adjacent land
would be the true owner of the land in dispute.
Counsel referred the court to cases of IDUNDUN Vs. OKUMAGBA (1976) 10
NSCC, 445, YUSUF Vs. ADEGOKE (20070 11 NWLR (Pt. 1045) 332, OBINECHI Vs.