MUHAMMED BELLO AND OSITA ABE JUDGMENT€¦ · 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

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.


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.


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


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.


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.


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.


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”.


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.


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


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


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


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.”


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.


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..


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


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


(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.


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”


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


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.


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:-


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

Documents

MUHAMMED BELLO AND OSITA ABE JUDGMENT€¦ · 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