MUHAMMED BELLO AND OSITA ABE & 1OR 1
JIN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT JABI
BEFORE HIS LORDSHIP : HON. JUSTICE .Y. HALILU
COURT CLERKS : JANET O. ODAH & ORS
COURT NUMBER : HIGH COURT NO. 32
CASE NUMBER : SUIT NO: CV/2690/12
DATE: : THURSDAY 7TH
DECEMBER , 2017
BETWEEN
MUHAMMED BELLO ……………… PLAINTIFF
AND
1. OSITA ABE DEFENDANTS
2. MR. SUNDAY OJILA
O. B Kingsley - for the Plaintiff.
A.A Achigbulu - for the Defendant.
Plaintiff’s Counsel – the case is adjourned for Judgment
and we are ready to take same.
MUHAMMED BELLO AND OSITA ABE & 1OR 2
JUDGMENT
The Claims of the Plaintiff as contained in paragraphs 27 of the
further amended statement of claim are as follows:-
a. Declaration that the Plaintiff as the original allottee of Pot No.
180 Kubwa Extension II Layout, Abuja and having;
i. Paid the requisite processing fees;
ii. Obtained a technical Drawing Plan (TDP) with No.
FCT/B2/TP/LA/AG/99/1011;
iii. Obtained approved building plan in his favour over the
said land; is entitled to the issuance of a statutory title over
the said land in his favour by the relevant authorities over
and above the Defendants.
b. A declaration that the Defendants’ purported title over the plot
No. 180 Kubwa Extension II Layout which was previously
allotted to the Plaintiff is pervasive, irregular, null and void.
c. A Declaration that the Defendants’ act of flagrantly entering
into the Plaintiff’s plot No. 180 Kubwa Extension II Layout,
demolishing the perimeter fence of the property, destroying the
gate and assembling sand and other building materials thereon
without authorization is tantamount to trespass.
MUHAMMED BELLO AND OSITA ABE & 1OR 3
d. An Order of Perpetual Injunction restraining the Defendants
either by themselves, servants, agents, privies or assigns from
further trespassing into the Plaintiff’s Plot No. 180 Kubwa
Extension II Layout.
e. Special damages in the sum of N1,161,500.00k being cost of
materials and labour incurred by the Plaintiff in constructing the
perimeter fence and fixing a gate to No. 180 Kubwa Extension
II Layout respectively wrongfully demolished and removed by
the 1st Defendant which is made up of the following:
Particular of special Damages:
i. 2,700 Nos. 9 Cement Blocks at N150 each-
N405,000.00k
ii. 70 Bags of Cement at N1,950 each- N136,500.00k
iii. 3 Trips of building sand at N15,000 each - N45,000.00k
iv. 2 Trips of sharp sand at N12,000 each - N24,000.00
v. 3 Trips of stone gravel at N25,000 each - N75,000.00k
vi. Masons and labours’ charges - N150,000.00
vii. 12 lengths of 12mm iron rod at N8,000 each- N96,000.00k
viii. I No. Iron gate at N230,000.00 - N230,000.00k
Total = N1,161,500.00k
MUHAMMED BELLO AND OSITA ABE & 1OR 4
f. The sum of N6,000,000.00k being general damages for trespass
to land.
g. The cost of this action.
The 1st Defendant filed an Amended Statement of Defence and a
Counter Claim as follows:
1. An Order dismissing the Plaintiff’s claim
2. An Order declaring the Plaintiff a trespasser to plot 180 Kubwa
Extension II, Kubwa.
3. An Order declaring the Defendant the authentic allottee of plot
180 extension II, Kubwa.
4. The sum of N10Million against the Plaintiff as damages for
trespass into plot 180 Kubwa Extension II.
The case of the Plaintiff as distilled from the statement of claim is that
by virtue of a letter of approval dated the 15th
June, 1995 from the
Abuja Municipal Area Council Planning office of the Federal Capital
Territory Administration (FCTA) he was allotted a customary right of
occupancy over a plot of land described as plot No. 180, which is
situate at Kubwa II Extension layout and measuring about 1000m2 for
a term of 50 years.
Plaintiff avers that, he paid processing fees in respect of the plot and
was accordingly issued with a revenue collector’s official receipts.
MUHAMMED BELLO AND OSITA ABE & 1OR 5
That he took further positive steps in perfecting his title to the land by
causing a site plan No. 1597 of 25th
August, 2003 to be prepared over
the land and a building plan for a proposed Residential Development
on the plot was prepared.
It is the case of the Plaintiff that he constructed perimeter fence
around the plot which was delimited and marked by concrete beacon
bearing PB 8315, PB 8297, PB8312 and PB8297 and also sunk a well
on the land, cultivated vegetable and crops on same.
Plaintiff stated that he applied for regularization of the title document
of the land with Abuja Geographic Information System (AGIS).
During hearing, Plaintiff tendered the following document in evidence
and was admitted.
i. Exhibit “A” specimen signature of PW1
ii. Exhibit “B” declaration of Age in the High Court of FCT.
iii. Exhibit “C” Acknowledgment letter from Abuja Geographic
Information System (AGIS).
iv. Exhibit “D” Technical Drawing Plan (TDP)
v. Exhibit “E” Conveyance of Provisional Approval
vi. Exhibit “F” Receipt of payment for purchase of building
materials.
vii. Exhibit “G” Department Receipt of Bwari Area Council.
MUHAMMED BELLO AND OSITA ABE & 1OR 6
viii. Exhibit “H” Proposed Residential Development Plan
ix. Exhibit “I” Zenith Bank Plc folder
x. Exhibit “J” Complaint letter by 1st Defendant
xi. Exhibit “K” Investigation activities report
xii. Exhibit “L” Layout sheet
xiii. Exhibit “M” TDP
xiv. Exhibit “N” document in intelligent sheet (rejected)
xv. Exhibit “O” Subpoena Duces Tecum
xvi. Exhibit “P” subpoena Duces Tecum
xvii. Exhibit “Q” writ of subpoena.
Plaintiff witness were duly cross – examined and discharged.
The 1st Defendant opened his defence after the closed of Plaintiff’s
case and called a total No. of 32 witnesses.
The case of the 1st Defendant as distilled from the statement of
defence as thus; that he was granted a conveyance of provisional
approval of the piece of land known as plot 180 measuring about
8.96ms at Kubwa II Extension layout as far back as 2nd
February,
1995.
MUHAMMED BELLO AND OSITA ABE & 1OR 7
It is the case of the 1st Defendant that after he made the required
payment, the zonal land office installed becons and charted the plot in
his name and that he also submitted his paper for regularization at
AGIS.
1st Defendant stated that the owners of the adjourning plots have
fenced the plot remaining only the front which he erected a dwarf
fence to fully secure the land.
That Alhaji Isa (Pw3) has been offering to buy the land from him but
was unable to pay for it. And the he was surprise when he saw (Pw3)
started adding Block to his dwarf fence without his consent the facts
of which he reported to the police.
1st Defendant then counter claim against the Plaintiff as stated in the
preceeding part of this judgment.
1st Defendant tendered the following documents in evidence.
a. 2 letters of complaint tendered and admitted as Exhibit “D1”
b. Bwari Area Council receipt tendered and admitted as Exhibit
“D2”
c. Conveyance of Provisional Approval tendered and admitted as
Exhibit “D3”
d. TDP tendered as Exhibit “D4”
e. Regularization of title documents as Exhibit “D5”.
MUHAMMED BELLO AND OSITA ABE & 1OR 8
f. Letter from Bwari Area Council as Exhibit “D6”.
After cross – examination of the 1st Defendant’s witnesses. They were
discharged. The 1st Defendant close it case to pave way for the 2
nd
Defendant.
It is the case of the 2nd
Defendant that he bought the plot 180 of about
896m2 the subject matter of litigation from the 1st Defendant after
carrying out a window search at Bwari Area Council land office
which declared the plot free from any encumbrances.
It is the case of the 2nd
Defendant that he took possession and dug
borehole without any disturbance from any person until he was about
mounting his gate.
2nd
Defendant who testified by himself was cross – examine and the
suit was adjourned for written addresses.
1st Defendant/counter claimant formulated 3 (three) issues for
determination in his final written address to wit;
1. Whether the 1st Defendant is in possession against the Plaintiff
2. Whether the Plaintiff witnesses are witnesses of truth.
3. Whether the 1st Defendant is not entitled to claim damages
against the Plaintiff for trespassing into plot 180 Extension II,
Kubwa.
MUHAMMED BELLO AND OSITA ABE & 1OR 9
While arguing on the above, learned counsel urge the court to dismiss
Plaintiff’s case and grant it counter claim.
On their part, 2nd
Defendant did not filed any written address, but
relied on the written address filed by the 1st Defendant.
Plaintiff filed their written address and formulated three issues for
determination to wit;
a. Whether or not the Plaintiff has proved his title to the land as the
original allottee and thereby acquired. Equitable title in his
favour? Or whether, the 1st Defendant had proved his counter
claim to be entitled to have claim?
b. Whether the Defendants trespassed into the Plaintiff’s land plot
No. 180 Kubwa Extension II Layout and if the answer is in the
affirmative, whether the Plaintiff is entitled to damages and
injunction.
c. Whether from the pleadings and evidence before the court, the
Plaintiff is entitled to N1,16,500.00k as a special and
N6,000,000.00 as special and general damages respectively
damages due to the actions of the Defendants.
Learned counsel argued the above issues succently in urging the court
to granting their prayers.
On the part of court, it is pertinent to state here from the onset that the
principal reliefs sought by the Plaintiff against the Defendants are
MUHAMMED BELLO AND OSITA ABE & 1OR 10
declarative in nature thereby predicating their success on the strength
of their case.
The law is settled that in an action for declaration of title to land, the
onus is on the Plaintiff to prove his case through cogent and credible
evidence.
In OLOKOTINTIN VS SARUMI (2002) 13 NWLR (Pt. 784) at 314
the Supreme Court per Kutigi JSC (as he then was) held as follows;-
“It is trite law that a Plaintiff seeking a declaration of title to
land must lead cogent and credible evidence to show that he is
entitled to the land.”
Indeed judicial pronouncements are ad-idem that declaratory reliefs
are never granted based on admission or on default of filing defence.
MOTUNWASE VS SORUNGBE (1988) NWLR (Pt. 92) 90.
Where the court is called upon to make declaration of a right, it is
incumbent on the party claiming to be entitled to the said declaration
to satisfy the court by evidence and not the admission in pleadings
that he is entitled.
The imperativeness of this arises from the fact that the court has
discretion to grant or refuse to grant such declaration. SAMESI VS
IGBE & ORS (2011) LPELR 4412.
It is instructive to state here that, the contention between the parties
from the evidence before the court dwelled on ownership of the land
MUHAMMED BELLO AND OSITA ABE & 1OR 11
known as Plot 80 Kubwa Extension II, Kubwa, Abuja. In laying
claimed to the said land, both parties led both oral and documentary
evidence to support their claim.
From the totality of whole evidence before the court, it seems to me
that one basic fact that must be accepted is that both parties claimed
title to the land by grant and the only issue before me was to decide
whom between the parties had proved his title to be entitled to
judgment.
It is now settled that a party may prove a title to a piece of land in any
of the following ways:-
i. Traditional evidence
ii. By document of title
iii. By various acts of ownership numerous and positive and over a
length of time to warrant the inference of ownership.
iv. By act of long enjoyment and possession of the land.
v. by proof of possession of adjacent in the circumstance which
render it probable that the owner of the such adjacent land
would, in addition be the owner of the disputed land.
IDUNDUN VS OKUMAGBA (1976) 9 – 10 SC 277.
As aptly stated by both counsel for the Plaintiff and Defendant and
the ensuring evidence and title documents, both Plaintiff and
Defendant came about the subject matter of litigation by virtue of
MUHAMMED BELLO AND OSITA ABE & 1OR 12
allocation of conveyance of provisional approval given by Bwari Area
council.
I need only state at this juncture that the Federal capital Territory
came into being by decree No 6 of 1976, with 4th
February, 1976 as
the commencement date.
Section 297 (2) of the 1999 constitution of the federal Republic of
Nigeria as amended vests absolute ownership of land within the
federal capital Territory in the Federal Government of Nigeria.
The said provision is in agreement with section 1 (3) of the Federal
Capital Territory Act 2004.
For ease of reference, I shall attempt to reproduce the said sections
297 (2) of the 1999 constitution of Federal Republic of Nigeria as
amended and 1(3) of the FCT Act.
Section 1(3) FCT Act.
“The area contained in the capital Territory shall, as from the
commencement of this Act, cease to be a portion of the states
concerned and shall henceforth be governed and administered
by or under the control of the Government of the Federation to
the exclusion of any other person or authority whatsoever and
the ownership of the lands comprised in the Federal Capital
Territory shall likewise vest absolutely in the Government of
the Federation.”
MUHAMMED BELLO AND OSITA ABE & 1OR 13
Section 297(2) of the 1999 constitution.
“The Ownership of all lands comprised in the Federal Capital
Territory, Abuja shall vest in the Government of the Federal
Republic of Nigeria.”
For all intents and purposes, the intention of the law makers on the
status of Federal Capital Territory is deliberate.
What Government and the makers of the Federal Capital Territory
Act intended was for a verse espance of land devoid of any form of
cultural or hereditary inclination to be set aside for the development
of the capital city.
No little wonder, even the original inhabitants who had occupied their
ancestral lands were merely paid compensation and asked to move-
on, regardless of the fact that generations of their ancestors were
buried on such lands. See section 6 of the Federal Capital Territory
Act.
There is no gain saying that the issue of deemed grant which is a
product of the Land Use Act 1978 was deliberately made inapplicable
to lands within the Federal Capital Territory from the construction of
the preamble to the Land Use Act and section 49 of the same Act.
Were the Land Use Act meant to apply to Federal Capital Territory,
the original inhabitants would have been granted deemed grant and
remained on their various lands within the Territory. The Land Use
Act must not be read in isolation.
MUHAMMED BELLO AND OSITA ABE & 1OR 14
It is trite that, where the language, terms, intent or words to any part
or section of a written contract, document or enactment are clear and
unambiguous as in the instant case, they must be given their ordinary
and actual meaning as such terms or words used best declare the
intention of law maker unless this would lead to absurdity or be in
conflict with some other provision thereof. It therefore presupposes
that where the language and intent of an enactment or contract is
apparent, a trial court must not distort their meaning.
See OLATUNDE VS OBAFEMI AWOLOWO UNIVERSITY (1998)
5 NWLR (pt. 549) 178.
A certificate of occupancy properly issued and where there is no
dispute that the document was properly issued by a competent
authority raises the presumption that the holder of the documents is
the owner in exclusive possession of the land.
The certificate also raises the presumption that at the time it was
issued, there was not in existence a customary owner whose title has
not been revoked. It should however be noted that the presumption is
rebuttable because if it is proved by evidence that another person had
a better title to the land before the issuance of the certificate of
occupancy the said certificate of occupancy stands revoked. See
MADU VS MADU (2008) 2-3 SC (pt. 11), 109. See ALLI VS
IKUSEBIALA (1985) NWLR (pt. 4) 630..
MUHAMMED BELLO AND OSITA ABE & 1OR 15
A declaratory relief is a discretionary remedy which is not granted as
a matter of course and the court must be satisfied before granting it
that the Plaintiff or claimant has a very strong and cogent case both
from his statement of claim and from the evidence he adduces in
support of his case. The Plaintiff or claimant must satisfy the court
that under all the circumstances of the case, he is fully entitled to the
discretionary reliefs in his favour, when all facts are taken into
consideration.
See MAKANJOULA VS AJILORE (2001)12 NWLR (pt. 727) 416.
The question of urban or non-urban land does not apply and cannot
apply to land within the Federal Capital Territory and I must sincerely
wish to state on the authority of ONA VS ATENDA (2000) 1 NWLR
(Pt. 656) 244 that no area council within the FCT has the authority to
do anything with the lands within the Federal Capital Territory, unless
and until the Act of the National Assembly is passed to truly define
the administrative and political structure of the Area Councils within
Federal Capital Territory.
The issue of urban or non-urban land is the creation of Land Use Act
(LUA) and to the extent of the creation inapplicable to the Federal
Capital Territory.
The question therefore on the powers conferred on and exercised by
the Governor of a State under the Land Use Act (LUA) being
applicable in the Federal Capital Territory, does not arise in view of
MUHAMMED BELLO AND OSITA ABE & 1OR 16
the fact that the essence of Land Use Act (LUA) as set out in the
preamble and section 49(1) of the same act, the provisions of the Act
are not applicable to title to land held by the Federal Government or
any of its agencies.
It then logically follows that the provision of section 3 of Land Use
Act (LUA) which empowers the Governor of a state to designate parts
of the area of the territory of the state land as urban area is also most
inapplicable to the land in the Federal Capital Territory.
If therefore there is no Non-urban land in the Federal Capital
Territory, it presupposes that the only title validly and legally
acceptable within the Federal Capital Territory is the statutory
allocation by the Federal Capital Territory Minister and not other.
From the foregoing therefore, it is clear that no Area Council
Chairman/Administrator within the Federal Capital Territory has the
power to allotte land to any person or group of persons as no land
within the Federal Capital Territory exist as non-urban land where
customary title could be conferred.
Consequently, to the extent of non – compliance with the statutory
provisions, of law, any of such allocation so made, is null, void and
unconstitutional.
Let it be known to all and sundry that the mere brandishing of
acknowledgment letter from Abuja Geographic Information Systems
MUHAMMED BELLO AND OSITA ABE & 1OR 17
(AGIS) as evidence of submission of Area Council title documents
for regularization does not amount to validation of such a title.
For any such area council allocation, so called, to be in conformity
with the statutory provisions of law, the Federal Capital Territory
Minister ought to withdraw the said so called Area Council allocation
and issue a statutory title.
Once that is not done, the said customary title is ineffective null and
void, the title held by Plaintiff and Defendant in this case, if any, is
inclusive.
Poser .. What is the meaning of regularization in English language?
The new lexicon Webster’s dictionary of the English language defines
it to mean – “to make regular or cause to conform to a rule,
principle.”
Poser .. Why are all Area Council allocations being regularized?
Certainly it is to bring them in conformity with the provisions of law
on the issue of allocation which is the exclusive preserve of the
Federal Capital Territory Minister who enjoys the delegated powers
of the President Federal Republic of Nigeria, under section 18 of
Federal Capital Territory Act.
I am not a law maker, but an interpreter of law made by a law maker.
The objective of any interpretation is to unravel the intention of the
law maker which often, can be deduced from the usage of language.
MUHAMMED BELLO AND OSITA ABE & 1OR 18
The duty of court is to interprete and give adequate and as close as
possible accurate and ordinary meaning to the words used. At best,
both Plaintiff and the Defendant are trespasser to the land in question.
Having held that both parties are not entitled to the land in issue and
could not have been the beneficial owner in that respect.
I shall examine the case of the parties to ascertain who actually the
law tilt in his favour in term of first trespasser.
The Plaintiff in a bid to proof his case as required by law tendered the
following documents in evidence.
i. Exhibit “A” specimen signature of PW1
ii. Exhibit “B” declaration of Age in the High Court of FCT.
iii. Exhibit “C” Acknowledgment letter from Abuja Geographic
Information System (AGIS).
iv. Exhibit “D” Technical Drawing Plan (TDP)
v. Exhibit “E” Conveyance of Provisional Approval
vi. Exhibit “F” Receipt of payment for purchase of building
materials.
vii. Exhibit “G” Department Receipt of Bwari Area Council.
Whereas the 1st Defendant tendered the following:-
a. 2 letters of complaint tendered and admitted as Exhibit “D1”
MUHAMMED BELLO AND OSITA ABE & 1OR 19
b. Bwari Area Council receipt tendered and admitted as Exhibit
“D2”
c. Conveyance of Provisional Approval tendered and admitted as
Exhibit “D3”
d. TDP tendered as Exhibit “D4”
e. Regularization of title documents as Exhibit “D5”.
f. Letter from Bwari Area Council as Exhibit “D6”.
Trial court has the onerous duty of considering all documents placed
before it in the interest of justice. It has a duty to closely examine
documentary evidence placed before it in the course of its evaluation
and comment and or act on it. Document tendered before a trial court
are meant for scrutiny or examination by the court, documents are not
tendered merely for the sake of tendering but for the purpose of
examination and evaluation OMEGA BANK (NIG) PLC VS O.BC
LTD (2002) 16 NWLR (Pt. 794) 483.
It is settled law that where there are oral as well as documentary
evidence, documentary evidence should be used as hanger from
which to assess oral testimony. PASHAMNU VS AKEKOYA (1974)
6 S C 83.
The trial court is enjoined to give more weight to the documentary
evidence rather than oral testimony. This is because oral evidence
may tell lie but documentary evidence which is shown to be genuine
MUHAMMED BELLO AND OSITA ABE & 1OR 20
does not tell lies. UDERAH VS NWAKONOBI (2003) 4 NWLR (Pt.
811) 643 at 678 paragraph A-C.
It is the evidence of the Plaintiff that by virtue of letter of Provisional
Approval issued in respect of plot 80 Kubwa Extension he became the
owner of the land the subject matter of litigation.
The above Exhibit “C” is consistent with Exhibit “P”.
The 1st Defendant on his part, tendered Exhibit “D3” to show his root
of title to the land in dispute.
I shall examine the said documents in the interest of justice and
posterity.
The Plaintiff tendered Exhibit “E” which is conveyance of Provisional
Approval dated the 15th
June, 1995. Whereas the Defendant tendered
Exhibit “D3” which is conveyance of Provisional Approval dated 2nd
February, 1995.
From the above, it is obvious that the so called titled of the Defendant
was first in time. Even though I have declared both parties as
trespasser to the law.
By Exhibit “K” title RE: Investigation activities RE: Plot No. 180,
Kubwa Extension II Kubwa. The Bwari Area Council who allocated
the plot of land in dispute confirmed that the name of allottee is “Abe
Osita” whereas the Mohammed Bello (Plaintiff) name could bot be
trace in their record.
MUHAMMED BELLO AND OSITA ABE & 1OR 21
Similarly Exhibit “J” and “D6” Bwari Area Council re-instead that
the subject matter of dispute belongs to the Defendant.
2nd
Defendant testified that they took possession of the land, build
fence on same. That without justification, the Plaintiff begin to ad
block to their existing fence.
Dw1 equally realizing that counter claim is a separate action on its
own.
The court has always held that what is required of a Party in an action
for declaration of title is at least to establish his claim by
preponderance of evidence. It is often enough that he produce
sufficient and satisfactory Evidence in support of his claim
KAIYAUJC VS EGUNLA (1974) 12 SC 55 at 60 -61.
Indeed, Plaintiff has failed to sdduced sufficient oral and documentary
evidence to support his claim. He case must therefore fail
consequently same is hereby dismiss.
I shall now turn to the counter claim of the Defendant.
It is the law that even a trespasser in possession can successfully
maintain an action in trespass against all the world except the true
owner. SALAMI & ORS VS LAWAL (2008) 4 FWLR 775 SC.
Defendant for all intent and purposes is deserving of his reliefs but
not against a true owner.
Consequently, it is hereby declared as follows:-
MUHAMMED BELLO AND OSITA ABE & 1OR 22
1. An Order dismissing the Plaintiff’s claim is hereby granted.
2. An Order declaring the Plaintiff a trespasser to plot 180 Kubwa
Extension II, Kubwa is hereby granted.
3. An Order declaring the Defendant the authentic allottee of Plot
180 extension II, Kubwa is hereby granted.
The next relief is that of general damages of 10,000,000.00 (Ten
Million Naira) only against the Plaintiff.
General damages have been held to be such as the law would presume
to be the direct, natural a probable consequence of the act complained.
The court can make such an award even if it cannot point any measure
of assessment except what it can hold in the opinion of a reasonable
man. JOSEPH VS ABUBAKAR (2002) 5 NWLR (759) 185 at 207.
I hereby award the sum of N50,000.00 (Fifty Thousand Naira) against
the Plaintiff in favour of the 1st Defendant as general damages.
Justice Y. Halilu
Hon. Judge
7th
December, 2017
Top Related