MINISTER OF F.C.T & ANOR v. FERTILE ACRESLTD & ANOR

CITATION: (2018) LPELR-45996(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON FRIDAY, 20TH APRIL, 2018Suit No: CA/A/114/2014

Before Their Lordships:

ABDU ABOKI Justice, Court of AppealPETER OLABISI IGE Justice, Court of AppealTANI YUSUF HASSAN Justice, Court of Appeal

Between1. MIN. OF THE FEDERAL CAPITAL TERRITORY2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY - Appellant(s)

And1. FERTILE ACRES LIMITED2. ETHA VENTURES LIMITED - Respondent(s)

RATIO DECIDENDI1. APPEAL - ISSUE(S) FOR DETERMINATION: Whether issue(s) for

determination must relate to the grounds of appeal filed"It is trite law that issues for determination must be based on the ground ofappeal and any issue or argument that does not relate to any ground ofappeal is incompetent."Per ABOKI, J.C.A. (P. 30, Paras. C-D) - read in context

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2. APPEAL - GROUND(S) OF APPEAL: Whether ground(s) of appeal as well asissue(s) formulated therefrom must arise from the decision appealed againstand effect of failure thereof"On the Appellants' counsel contention that the action of the trial Court indismissing the Appellants' motion when the motion had not been movedviolated the Appellants' right to fair hearing. This complaint of the Appellantsis argued under issue three distilled from ground three of the Appellants'notice of appeal. The said ground three with its particulars is reproducedbelow;"GROUND THREEThe learned trial judge erred in law when he dismissed the motion of theAppellants' wherein they sought to bring in an additional witness anddocumentary evidence.PARTICULARSa. The essence of bringing in the additional witness and documentaryevidence was to clarify salient issues.b. The evidence adduced was not properly evaluated."Grounds of appeal are generally complaints by a party to an appellate Courtagainst the decision of a lower Court and so they must be in firma terra, thatis, arise from the said judgment. This is the precondition for the vesting of thejudicial power of the Constitution in the Courts. See the cases of;LIVESTOCK FOODS PLC VS. FUNTUA & ANOR. (2005) 17 NWLR (PT. 955) PG549.AMGBARE VS. SYLVA (2009) 1 NWLR (PT. 1121) AT 76-77.I have carefully perused the entire judgment of the trial Court, there isnothing in the said judgment to bear out the Appellants' claim of its motion tocall additional witness being dismissed as alleged. Therefore, the said groundthree is incompetent. Since ground three is incompetent, issue three fromwhich it has been raised is incompetent, the said issue three too cannot beconsidered and it is hereby accordingly struck out."Per ABOKI, J.C.A. (Pp.33-34, Paras. E-F) - read in context

3. COURT - DUTY OF COURT: Whether a trial court has a duty to consider andpronounce on all issues raised before it"It is trite law that the trial Court not being the apex Court ought to considerall issues for determination properly brought before it and to refuse to do sois tantamount to a denial of fair hearing."Per ABOKI, J.C.A. (P. 26, Paras. D-E) -read in context

4. EVIDENCE - STANDARD OF PROOF: Standard of proof in a civil case; howcourt determines the preponderance or weight of evidence"In civil matters, the Court decides the case on the balance of probabilities, orpreponderance of evidence. This is done when a trial Court puts on animaginary scale the totality of the evidence adduced by the parties before it,before coming to a decision as to which of it, it accepts and which itrejects."Per ABOKI, J.C.A. (P. 26, Paras. C-D) - read in context

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5. EVIDENCE - EVALUATION OF EVIDENCE: Principles that the court musthave regard to in the process of evaluation of evidence"Evaluation means the assessment of evidence as to give value or quality toit. See the case of ONWUKA VS. EDIALA (1989) 1 NWLR PT. 96 PG 182. In theEvaluation of evidence, the trial Courts are guided by the following principlesnamely;a. Whether the evidence is admissible;b. Whether the evidence is relevant;c. Whether the evidence is credible;d. Whether the evidence is conclusive; ande. Whether the evidence is more probable than that given by the other party.See the case of MOGAJI VS. ODOFIN (1978) 4 SC 91.Evaluation of evidence is primarily the function of the trial Court. It is onlywhere and when it fails to evaluate such evidence properly or at all, that anappellate Court can intervene and re-evaluate such evidence, otherwise theappellate Court has no business interfering with the finding of the trial Courton such evidence. See the case of ADEBAYO VS ADUSEI (2004) 4 NWLR PT.862 PG 44. In the instant case, I have carefully perused the judgment of thetrial Court, particularly its findings at pages 250 - 257 of the record of appeal,wherein the trial Court dealt with the issues of admission of Exhibits P1, P4 &P6, it is my view that the trial Court rightly admitted and unquestionablyevaluates the said exhibits. Therefore it is not the business of this Court tosubstitute its own views for the views of the trial Court."Per ABOKI, J.C.A. (Pp.27-28, Paras. B-C) - read in context

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6. LAND LAW - REVOCATION OF RIGHT OF OCCUPANCY: Purpose andmodes of delivery of notice of revocation; effect of revocation not carried outin accordance with law"On issue of proper service of revocation notice on the Respondents, learnedcounsel for the Appellants argued that there was a proper service of notice ofrevocation by post on the Respondents and the absence of date in thecertificate of delivery is not a conclusive proof of non service.Notice of revocation of a right of occupancy is indeed very important becauseit informs the holder of the steps taken to extinguish his right of occupancy.Thus the service of the notice of revocation is sine qua non and the mode ofservice of such notice is prescribed in Section 44 of the Land Use Act. SeeEKUNDAYO & ANOR VS. FCDA & ANOR (2015) LPELR-24512 CA. The keywitness on this issue is DW1 one Kumaiin Ikya a staff of the FCTA in histestimony under cross-examination he said;-He knows that the 1st Plaintiff was issued with a certificate of occupancy andthe address of the 1st Plaintiff in that certificate of occupancy is RuwanKanya, Rano, P.O. Box 2012, Kano, Nigeria. Exhibit D11, the purportedrevocation notice was address to Federal Archive Fertile Acres Ltd P. O. Box52, Addis Ababa Crescent, Wuse 4, Abuja FCT. He also agreed that as per theaddress, the purported notice of revocation was address to any of thePlaintiffs. The trial Court in its judgment found thus;-"Firstly, there is no evidence that before the Court of the receipt of notice ofrevocation.... The Plaintiffs have denied knowledge of the address to which itwas posted i.e. Plot 52, Addis Ababa Crescent, Wuse 4, Abuja FCT. That isneither the address of the 1st or 2nd Plaintiff. Further, under crossexamination, DW1 admitted that the address of the 1st Plaintiff is RuwanKanya, Rano, P.O. Box 2012, Kano, Nigeria. DW1 confirmed further undercross examination that the Defendants know the Plaintiffs' addresses. DW1finally agreed that he does not know whether Exhibit D11 was served. The neteffect of all this is that the Defendants cannot say for certain if the revocationnotice was ever served on the Plaintiffs' i, e 151- or 2nd."Section 44 (a), (b) and (c) of the Land Use Act which relates to the service ofnotice provides:- "Any notice required by this Act to be served on any personshall be effectively served on him-a. By delivering it to the person or who is to be serve, orb. By leaving it at the usual or last known place of abode orc. By sending it in a prepaid registered letter addresses to that person at hisusual or last known place of abode."From the evidence on record, I agree with the view of the trial Court that thepurported revocation conveyed by the letter of 8th February, 2010 is null andvoid and the acquisition fails having been vitiated by Defendant's failure toserve a notice of revocation. If any service was done at all it was done inviolation, again of the provisions of Section 28 of the Act. The evidence onrecord shows that no compensation was paid to the Respondents."Per ABOKI,J.C.A. (Pp. 31-33, Paras. A-D) - read in context

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ABDU ABOKI, J.C.A. (Delivering the Leading

Judgment): This appeal is against the Judgment of the

High Court of the Federal Capital Territory, Abuja (herein

after referred to as the trial Court) delivered on 11th day of

February, 2013 by L.H. Gummi J.

The Respondents were the Plaintiffs at the trial Court while

the Appellants were the Defendants.

The Respondents as Plaintiffs at the trial Court claim

against the Appellants as follows;

I. A declaration that the Plaintiffs are entitled to a Statutory

Right of Occupancy in respect of Plot Number 309,

Cadastral Zone E08, Abuja, FCT with old file No. 4166 and

new file No. 57787, now measuring approximately 30

Hectares (then 35 Hectares), covered by Certificate of

Occupancy No. FCT/ABU/MISC: 4166 dated 3rd day of

March, 1999, registered as No. FC100 at page 100 In

Volume 89 in the land registry office at Abuja and bound by

beacons Nos. PS.3390, PB.3391, P5.3392, PS.3393, PB.

3394, P5.3395, PS. 3396, PB. 3397 and P8.3398.

II. A declaration that the Plaintiffs are entitled to be issued

with a new (recertified) Certificate of Occupancy by the

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Defendants in respect of Plot No. 309, Cadastral Zone E08,

Abuja, FCT with old file No. 4166 and new file No. 57787,

now measuring approximately 30 Hectares (then 35

Hectares), covered by old Certificate of Occupancy No.

FCT/ABU/MISC; 4166 dated 3rd day of March, 1999,

registered as No. FC100 at page 100 In Volume 89 in the

land registry office at Abuja and bound by beacons Nos.

P5.3390, P8.3391, P5.3392, P8.3393, PS.3394, P5.3395,

PB.3396, PB. 3397 and PB. 3398.

iii. An order of Court demanding the Defendants to issue

the Plaintiffs with a new (recertified) certificate of

occupancy in respect of Plot No. 309, Cadastral Zone E08,

Abuja, FCT with old file No. 4166 and new file No. 57787,

now measuring approximately 30 Hectares (then 35

Hectares), Covered by old Certificate of Occupancy No.

FCT/ABU/MISC: 4166 dated 3rd day of March, 1999,

registered as No. FC100 at page 100 in volume 89 in the

Land Registry Office at Abuja and bound by beacons Nos.

P8.3390, P6.3391, P5.3392, PB.3393, PB.3394, P8.3395,

PB.3396, PS. 3397 and PS.3398.

The trial Court in its judgment granted the reliefs sought by

the Respondents.

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Dissatisfied with the decision of the trial Court the

Appellants filed their notice of appeal dated 2nd May, 2013

on 6th May, 2013.

Briefs of arguments were in accordance with the relevant

rules of this Court duly filed and exchanged and at the

hearing of the appeal the parties adopted and relied on

their respective briefs of argument.

The Appellants' brief of argument dated 20th day of March,

2017 was filed on the same date; it was settled by PETER

ERIVWODE, ESQ. The Respondents' brief of argument

dated 27th April, 2017 was filed on the same date, it was

settled by UCHENNA UCHE ESQ. while the Appellants'

reply brief was dated and filed on 10th day of May, 2017.

Three issues were distilled by the Appellants from the three

grounds of Appeal as follows;

1. Whether the learned trial judge erred in law when he

granted the reliefs sought by the Respondents without

evaluating and taking into consideration all the evidence

placed before him.

2. Whether the learned trial judge was right in holding that

there was no proper service of revocation notice on the

Respondents.

3. Whether the learned trial judge erred in law and which

error occasioned a miscarriage of justice when

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he refused the Appellants leave to call additional witnesses

and adduce documentary evidence.

The Respondents' counsel on the other hand distilled a lone

issue for determination in this appeal as follows;

1. Whether the Court below was right when it entered

judgment in favor of the Respondents thereby affirming the

subsisting interest of the Respondent in the property in

dispute.

The three issues as distilled by the Appellant are adopted

and will be taken together in the determination of this

appeal.

ISSUES ONE, TWO &THREE (TAKEN TOGETHER)

Whether the learned trial Judge erred in law when he

granted the reliefs sought by the Respondent without

evaluating and taking into consideration all the evidence

placed before him;

Whether the learned trial Judge was right in holding that

there was no proper service of revocation notice on the

Respondents.

AND

Whether the learned trial judge erred in law and which

error occasioned a miscarriage of justice when he refused

the Appellants leave to call additional witnesses and

adduce documentary evidence.

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Learned counsel for the Appellant submitted that the trial

Court not being the apex Court ought to consider all the

issues presented to it for determination, and to refuse to do

so is tantamount to a denial of fair hearing. He referred the

Court to the cases of;

FCDA VS. SULE (1994) 3 NWLR PT. 332.

FAAN VS. GREENSTONE LTD (2009) 10 NWLR PT.

1150 PG 650.

T.A. ORM & ANOR. VS. PDP & ORS (2009) 14 NWLR

PT. 1161 PG 408.

FEDERAL MINISTRY OF HEALTH & ANOR. VS.

COMET SHIPPING AGENCIES LTD (2009) 9 NWLR

PT.1145 PG 220-221.

ADETAYO VS. BAMIDELE (2007) VOL.35 PG 1 AT 15.

He contended that at the trial Court several issues raised

by the Appellants were not considered and several

documents tendered before the trial Court were

inadmissible or wrongly relied upon and some were either

not considered or improperly considered.

He argued that pre-action counseling is a mandatory

condition precedent and the 2nd Plaintiff cannot possibly

be counseled for the purpose of the 1st Plaintiff as held by

the trial Court. He referred the Court to Order 4 Rule 17 of

the High Court Civil procedure Rules 2004 and the cases

of;

ABIODUN VS. A.G FEDERATION (2007) 15 NWLR PT.

1057 PG 339 AT 396.

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ONOCHIE VS. ODOGWU (2006) 6 NWLR PT. 975 PG.

65 AT 89.

BALOGUN VS. UNIVERSITY OF ABUJA (2002) 13

NWLR PT. 783 PG 42.

Learned counsel also submitted that the Power of Attorney

donated to the 2nd Respondent by the 1st Respondent

(Exhibit P6) which the trial Court relied upon to award title

to the 2nd Respondent is not a title document and same did

not confer any title on it. He referred the Court to the cases

of;

UDE VS. NWARA (1993) 2 NWLR W. 278 N 647.

CHIME VS. CHIME (2001) 3 NWLR PT.7O1 AT 527.

OLORUNFEMI VS. NIGERIA EDUCATIONAL BANK

LTD (2003) NWLR PT.812 AT 1.

He contended that Exhibit P6 being an unregistered Power

of Attorney is not a valid document in the eyes of the law to

elicit admissibility; and in the unlikely event it is admitted

as in the instant case, the Court ought not to ascribed any

probative value to it. He referred the Court to the cases of;

KACHALLA VS. BANKI (2001) FWLR PT. 73.

AKINDURO VS. ALAYA & OSSAI VS. NWAJIDE (1975)

4 SC 207.

Learned counsel argued that the 2nd Respondent does not

have locus standi in this suit and cannot be entitled to any

relief. He referred the Court to the cases of;

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ABRAHAM ADESANYA VS. PRESIDENT OF THE

FEDERAL REPUBLIC OF NIGERIA (1981) 5 SC 112.

PFIZER SPECIALTIES LTD VS. CHYZOB PHARMACY

LTD (2006) LPELR-11780 CA.

IKPEAZU VS. AFRICAN CONTINENTAL BANK LTD

(1965) NMLR PG 384 AT 379.

He maintained that in the instant case the Respondents did

not tendered any evidence before the trial Court in proof of

the title of the 1st Respondent. However, the trial Court

proceeded on the assumption to hold that a certificate of

occupancy is capable of vesting title on persons, which on

the contrary it does not. He insisted that the trial Court was

in error when it awarded title to the land to the

Respondents. He referred the Court to the cases of;

ADOLE VS. GWAR (2008) 11 NWLR PT.1099 562 AT

590. JAMES SONGO VS. AKURE (2014) LPELR-22636.

Learned counsel for the Appellants also submitted that the

2nd Respondent is an incompetent party by virtue of the

fact that it did not disclose on the face of the writ that it

was suing as Attorney to the 1ST Respondent. He referred

the Court to the case of OFIA VS. EJEM (2006) 11 NWLR

PT. 652 SC.

He argued that the trial Court erred in law when it failed to

properly evaluate

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the evidence adduced, before reaching conclusion on

salient issues submitted to it for determination and this is

manifest in the way and manner exhibit PL, P4 & P6 were

admitted and relied upon by the trial Court in upholding

the Respondents' claims.

He maintained that the trial Court did not consider the

issue of overriding public interest as the ground for the

revocation of the Plaintiffs/Respondents' title and also the

issue of breach of terms of Grant was not resolved by the

trial Court. He referred the Court to Section 86 (2), (3) and

102 of the Evidence Act 2011 and the cases of;

OGBORU VS. UDUAGHAN (2011) 2 NWLR PT. 232 PG

538;

ANOZIE VS. OBICHERE (2006) 8 NWLR PT. 921 PG

140 AT 155;

FCDA VS. SULE (SUPRA); OVUNWO vs. WOKO (2011)

VOL 46 PT.1 PG 517 AT 540;

UZUDA vs. EBIGAH (2009) ALL FWLR PT. 493 PG

L224 AT 1247;

A.G LEVENTIS NIG. PLC VS. AKPU (2007) 17 NWLR

PG. 416 AT 446.

Learned counsel also submitted that the trial Court ought

to expunged Exhibits P1, P4 and P6 since there was no

proof of service on the Appellants. He invited this Court to

expunge these exhibits and uphold the Appellants'

submissions.

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On the issue of service of revocation notice on the

Respondents, learned counsel for the Appellants submitted

that there was a proper service of notice of revocation on

the 1st Respondent.

He maintained that there was evidence vides Exhibits D11

and D12 that notice of revocation was served by post on the

Respondents and the reason for the revocation was duly

stated.

Learned counsel contended that it is not the case of the

Respondents that there was no notice of revocation serve

on them all. He referred the Court to Section 44 (c) of the

Land Use Act.

He argued that the absence of a date in the certificate of

posting is not a conclusive proof of non service or sufficient

to vitiate the notice of revocation, at best, the trial Court

would have called for oral evidence to ascertain if there

was service and delivery of notice of revocation to the

Respondents. More so, it is not the requirement of Section

44 of the Land Use Act that certificate of posting on

revocation notice be dated.

He insisted that the absence of date on the certificate of

posting is immaterial and same is not sufficient to vitiate

service of revocation. He urged the Court to so hold.

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On whether the trial Court erred in law and that error

occasioned a miscarriage of justice when it refused the

Appellants' leave to call additional witnesses and adduce

documentary evidence, learned counsel for the Appellants

submitted that once motion is filed, the Court is duty bound

to look at it no matter how frivolous such application may

appear to be.

He contended that the Appellants' motion to call additional

witness and adduce evidence had not been moved. What

counsel sought was leave to move the motion, but the lower

Court dismissed it. He referred the Court to the case of

ODEDO VS. PDP & ORS (2015) LPELR - 24738 SC.

Learned counsel for the Appellants contended that the

action of the trial Court in dismissing the Appellants'

motion when the motion had not been moved violated the

Appellants' right to fair hearing. He referred the Court to

the cases of;

ODEDO VS. PDP & ORS (SUPRA);

GENERAL COMPANY VS. AKANDE & ORS (2010)

LPELR-809 SC;

ULEKE & ANOR VS. KAKWA & ANOR (2013)

LPELR-20819 CA. ESSEIN VS. EDET (2004) 5 NWLR

PT. 867 PG 519;

OTAPO VS. SUNMONU (1987) 2 NWLR PT.58 PG 587;

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OKORO VS. OKORO (1998) 3 NWLR PT. 540 PG 65;

S.C. ENGINEERING VS. NWOSU (2008) 3 NWLR PT.

1074 PG 288 AT 307-308;

He argued that assuming without conceding that the

Appellants' motion was heard, the refusal of same is also a

breach of the Appellants' right to fair hearing. He referred

the Court to the case of FIRST BANK PLC VS. MAY

MEDICAL CLINICS (Citation not provided).

On the effect of the denial of fair hearing learned counsel

referred the Court to the cases of;

TSOKWA MOTORS NIG. LTD VS. UNITED BANK FOR

AFRICA PLC (2008) 2 NWLR PT. 1071 PG 347;

OGUNDOYI & ANOR VS. ADEYEMI (2001) 13 NWLR

PT. 730 PG 403;

DR. EZENWAJI VS. UNIVERSITY OF NIGERIA (UNN)

& ORS. (2006) 3 NWLR PT. 967 PG 325;

ODEDO VS. PDP (SUPRA).

He opined that, had the trial Court thoroughly examined

the Appellants' motion it would not have come to the

conclusion that it did.

He urged the Court to resolve all the issues in favor of the

Appellants, uphold this appeal and set aside the judgment

of the trial Court.

Learned counsel for the Respondents in their brief of

arguments referred the Court to the pleadings of the

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parties

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trial Court, as well as Exhibits PL, P2, P6, P7 & D1 and

submitted that the Respondents denial of the equitable

interest of the 2nd Respondent is tenuous and impotent.

He maintained that in the light of all the evidence before

the trial Court, the interest/locus of the Respondents

cannot be questioned by the Appellants; The Appellants'

contention that Exhibit P2 is impugned and defensible by

reason of the subsisting interest of the 1st Respondent in

the land in dispute as at the time of the issuance of Exhibit

P2 is self-defeatist. Because, assuming that the issuance of

Exhibit P2 was wrong on the 1st Respondent only the 1st

Respondent itself would be entitled to complain. More so,

the Appellants are not as it were permitted to weep more

than the bereaved. He referred the Court to the cases of;

SOLANKE VS. ABED & ANOR (1962) ALL NLR PT. 1

PG 230 AT 234;

UGOCHUKWU VS. CO-OPERATIVE & COMMERCE

BANK NIG. LTD (1996) 6 NWLR PT.456 PG 524 AT

540-542;

ABACHA VS. EKE-SPIFF & ORS (2009) 7 NWLR PT.

1139 PG 97 AT 132.

Learned counsel contended that by an irrevocable Power of

Attorney (i.e. Exhibit P6)

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it is clear that the 2nd Respondent appointed the 1st

Respondent as lawful Attorney over the res. In law, this

presupposes and operates as notice to all, including the

Appellants that the res still resides in the donor. He

referred the Court to the cases of;

EZEIGWE VS. AWUDU (2008) 11 NWLR PT. 1097 PG

158 AT 163;

UDE VS. NWARA (1993) 2 NWLR PT. 278 PG 638 AT

651;

He maintained that the 2nd Respondent notwithstanding

the Exhibit P6, is not forbidden in law from maintaining the

res, nor does it lack the locus standi to prosecute the suit,

for same is inherent in the Power of Attorney. He referred

the Court to the findings of the trial Court at pages

256,-259 of the record of appeal and the cases of;

UNITED NIGERIA COMPANY LTD VS. NAHMAN

(2000) 9 NWLR PT. 671 AT 188;

VULCAN GASES LTD VS. G.F IND. A.G (2001) 9 NWLR

PT.719 PG 610;

DABO VS. ABDULLAHI (2005) 7 NWLR PT. 923 PG

181 AT 206;

ISERU VS. CATHOLIC BISHOP OF WARRI DIOCESE

(1997) 3 NWLR PT. 495 PG 517 AT 529.

Learned counsel submitted that for as much as those

findings and the Defendants' grant of right of occupancy

over the property in dispute to the 2nd Respondent

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remain extant, it is puerile for the Appellants to pretend to

buck the trial Court declaring title to the Appellants.

He argued that, as rightly found by the trial Court, that

grant was no where revoked by the Defendants, the trial

Court found that the purported revocation (Exhibit D11)

was not made out because the said notice was not served.

He referred the Court to the cases of;

ONONUJU & ANOR. VS. A.G ANAMBRA STATE & ORS.

(2009) 10 NWLR PT. 1148 AT 221;

ADOLE VS. GWAR (SUPRA); ADMIN/EXECUTORS OF

ESTATE OF ABACHA VS. EKE-SPIFF & ORS (SUPRA)

C.S.S BOOKSHOP LTD VS. THE REGISTERED

TRUSTEES OF MUSLIM COMMUNITY IN RIVERS

STATE & ORS (2006) 11 NWLR PT. 992 AT 577.

NIGERIAN ENGINEERING WORKS LTD VS. DENAP

LTD & ANOR (2001) 18 NWLR PT.746 AT 757.

YADIS NIG. LTD VS. G.N.I.O LTD (2007) 14 NWLR PT.

1055 PG 584 AT 607;

NLEWEDIM VS. UDUMA (1995) 6 NWLR PT. 402

PG.383 AT 394.

On the reason for the purported revocation, learned

counsel referred the Court to Exhibit D11 and submitted

that the Appellants gave reason for the revocation as

"Overriding public interest" devoid of the particular

purpose, and this

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makes the notice of revocation, even if it has been served,

incurably bad. There is no evidence that appropriate

monetary compensation was paid to the Respondents prior

to the purported revocation. He referred the Court to

Section 29 of the Land Use Act and the case of ADOLE VS.

GWAR (SUPRA).

He argued that the purported public purpose alluded to by

the Appellants as being the reason for the purported

revocation of the Respondents' right in the res was so as

"to cater for the needs of the Nigerian Army Defence

Headquarters", while the res was allotted to retired

Military personnel as private Housing Estate.

He maintained that catering for the needs of the Nigerian

Army defence Headquarters is not included in the public

purpose as listed in Section 51 of the Land Use Act. The

purpose, depose to by the Appellants under reference is

also not within the contemplation of Section 28 of the Land

Use Act and this makes the purported revocation

ineffectual and void. He referred the Court to case of C.S.S

BOOKSHOP LTD VS. THE REGISTERED TRUSTEES OF

MUSLIM COMMUNITY IN RIVERS STATE & ORS

(SUPRA) AT 565.

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On the Appellants' contention that Exhibit P6 is not a

document o f t i t le and be ing an unregis tered

registrable instrument is inadmissible, therefore, the trial

Court was wrong to give judgment to the 2nd Respondent

on the strength of the said Exhibit P6, learned counsel for

the Respondents submitted that the Appellants' contention

is misconceived.

He argued that an unregistered registrable instrument is

admissible in evidence to prove not only payment of

purchase price but also prove equitable interest. In other

words, the non registration of registrable land instrument

affects only the legal title, not the equitable one. More so,

the trial Court did not give judgment to the Respondents

solely on the strength of Exhibit P6. He referred the Court

to the cases of;

MONKOM VS. ODILI (2010) 2 NWLR PT. 1179 AT

426.

OKOYE VS. DUMEZ NIG LTD (1985) 1 NWLR PT. 4 AT

791.

Learned counsel for the Respondents contended that the

Appellants' issue one for determination distilled from

ground one of the notice of appeal filed is too wide and not

capable of being distilled from that ground. He referred the

Court to the cases of;

IDIKA VS ERISI (1988) 2 NWLR PT. 78 PG 563 AT

566.

WESTERN STEEL WORKS VS. IRON & STEEL

WORKERS UNION 1987 1 NWLR PT. 49 AT 284.

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He maintained that the Appellants' ground one of appeal

cannot be a basis for the issue one as formulated by the

Appellants, because the particulars attached to it is of no

assistance. He referred the Court to the said ground one

and its particulars.

He argued that the said ground of appeal couched in

general terms, as it were and without meaningful

particulars to elucidate it, is vague, incompetent and not

capable of sustaining issue one distilled from it. He

referred the Court to the cases of;

HANI AKAR ENTERPRISES LTD VS. INDO NIGERIA

MERCHANT BANK LTD (2011) 1 NWLR PT. 1228 AT

324;

OKE VS. DR. MIMIKO (2014) 1 NWLR PT. 1388 AT

380-381.

Learned counsel for the Respondents contended that the

Appellants' counsel has sought to disparage Exhibit P2 and

the pre-eminence accorded it by the trial Court. He

submitted that the Appellants' counsel argument in this

regard amounts to nothing, because assuming without

conceding that the trial Court was wrong in ascribing value

to the said Exhibit P2, the judgment would still not be

impeachable on account of that error and that there are

17

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extant facts and findings of the trial Court to support the

judgment. He referred the Court to the cases of;

UZOCHUKWU VS. ERI (1997) 7 NWLR PT.584 AT 551.

INTERNATIONAL MESSENGER NIG. LTD VS.

PEGOFOR INDUSTRIES LTD (2000) 4 NWLR PT.652

AT 249.

He maintained also that the Appellants' arguments in

paragraphs 4.02-4.18 of their brief of argument are of no

moment, because that argument pretends to challenge

specific findings of the trial Court not appealed against.

They thus remain admitted by the Appellants, and binding

on the appellate Court. He referred the Court to pages

245-246, 263 & 265 of the record of appeal and the cases

of;

KOYA VS. UBA LTD (1997) 1 NWLR PT. 481 AT 266.

NDIWE VS. OKOCHA (1992) 7 NWLR PT. 252 AT 129.

GAMBORUMA VS. BORNU (1997) 3 NWLR PT. 495 AT

545.

Learned counsel argued also that the argument relating to

deficiency in the Respondents' signing of the pre-action

counseling certificate amount to, at best a complaint of

non-compliance with form which is treated as an

irregularity and is no longer permitted to nullify

proceedings. He referred the Court to Order 2 Rule 1 (1) &

Order 2 Rule 2 (b) of the High Court of the FCT Civil

procedure Rules, 2004.

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On the submissions made by the Appellants' in paragraphs

4.45, 4.50, 4.52, 4.66-4.69 of their brief of argument,

Learned counsel for the Respondents contended that those

issues are not covered by any of the three grounds of

appeal filed. He referred the Court to the cases of;

KOYA VS. UBA LTD (SUPRA)

ISERU VS. CATHOLIC BISHOP OF WARRI DIOCESES

(SUPRA) NDIWE VS. OKOCHA (SUPRA)

GAMBORUMA VS. BORNU (SUPRA)

On the Appellants' counsel submission in paragraphs 4.37 -

4.41 of the Appellants' brief of argument. Learned counsel

for the Respondents also contended that there is no ground

in the notice of appeal where the issue of title of the 1st

Respondent was raised. Secondly the certificate of

occupancy of the 1st Respondent is in evidence before the

Court which was tendered by the Respondents and the

Appellants themselves as Exhibits P7 and D1 respectively.

He referred the Court to page 239 of the record of appeal

and the cases of;

DIPCHARIMA VS. ALI (1974) ALL NLR PG 908.

OKOYA & ORS VS. SANTILLI (1994) 4 NWLR PT. 338

AT 304.

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Learned counsel for the Respondents maintained that

paragraphs 4.26 - 4.29 of their brief of arguments disclose

that ground three of the notice of appeal is also

incompetent and liable to be discountenanced and struck

out, because it does not arise from the judgment of the trial

Court the subject of this appeal.

He submitted that a valid ground of appeal must be a

complaint against the judgment appealed against and must

arise from it. He referred the Court to the cases of;

LIVESTOCK FOODS PLC VS. FUNTUA & ANOR (2005)

17 NWLR PT. 955 AT 562;

OBATOYINBO & ANOR VS. OSHATOBA & ANOR

(1996) 5 NWLR PT. 450 AT 549.

He maintained that for the reason that ground of appeal

three does not arise from the judgment appealed against,

all argument canvassed by the Appellants in paragraphs

6.01 - 6.19 of the Appellants' brief is of no moment no

matter how meritorious it may be.

He argued that all argument on issues founded on

incompetent grounds of appeal are liable to be struck out.

He referred the Court to the cases of;

OKON VS. THE STATE (1995) 1 NWLR PT. 372 AT

389.

ADEGBENRO VS. AKINTILO (2010) 3 NWLR PT. 1182

PG 541; APGA VS. OHAKIM (2009) 4 NWLR PT. 1130

PG 116 AT 130.

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He maintained that another reason why ground three of the

notice of appeal is untenable is that it complains of the

dismissal by the trial Court of the Appellants' motion to call

additional witness and documentary evidence. However,

there is nothing in the record of appeal to bear out the

Appellants' claim of the motion being dismissed, for all the

Respondents know, the said motion may as well have been

abandoned by the Appellants at the trial Court. He referred

the Court to the cases of;

ONAGORUWA VS. STATE (1993) 7 NWLR PT. 303 AT

95;

INTERNATIONAL BANK PLC VS. ONWUKA (2009) 8

NWLR PT.1144 AT 471;

OGOLO VS. FUBARA (2003) 11 NWLR PT. 831 PG 231

AT 240; BRITTANIA - U NIG. LTD VS. SEPLAT

PETROLEUM DEV. CO. LTD (2016) 4 NWLR PT. 1503

PG 541 AT 557.

In the Appellants' reply brief, the Appellants' counsel at

paragraphs 2.00, 2.03, 2.05 and 2.08 of the said reply brief

referred the Court to some arguments/points raised in the

Appellants' brief of arguments which he contended that the

Respondents in their brief did not offer any response on the

said arguments thereby conceding same.

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In reply to the issues raised by the Respondents in

paragraphs 4.1-4.2 of their brief of argument, the

Appellants' counsel submitted that the position of the

Respondents is unknown to law. He maintained that the

mere appointment of the 2nd Respondent by the 1st

Respondent without compliance with the statutory

requirements confers no right be it legal or equitable on

the 2nd Respondent, and the cases of:-

SOLANKE VS. ABED & ANOR (SUPRA);

UGOCHUKWU VS COOPERATIVE & COMMERCE

BANK NIG LTD (SUPRA) and ABACHA VS EKE SPIFF

& ANOR (SUPRA) which he said are not helpful to the

case of the Respondents.

He also maintained that the cases of EZEIGWE VS.

AWUDU (SUPRA); UDE VS. NWARA (SUPRA); and

UNITED NIGERIA CO. LTD VS. NAHMAN (SUPRA)

could not help the case of the Respondents, because in all

the cases the donor of the power of Attorney is not a party

to the suits. He submitted that in those cases there is no

joint action when the power has been donated.

On the Respondents' submission in paragraph 4.5 of their

brief of argument, the Appellants contended that the claim

before the trial Court is a joint claim of title and not

equitable interest and the trial Court is not

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permitted to grant what is not sought. He referred the

Court to the reliefs sought by the Respondents at the trial

Court and the case of BHOJSONS PLC VS. GEOFFREY K.

DANIEL-KALIO (2006) 5 NWLR PT. 973 AT 359.

He maintained that appeal as lodged in ground one is

against the finding on Exhibit P2 granted to the 2nd

Respondent. He referred the Court to the case of

FIDELITY BANK PLC VS. OGIRI (2013) 1 NWLR PT.

1337 AT 200.

On the issue of service of notice of revocation, the

Appellants submitted that the Respondents in their brief

avoided the issues raised by the Appellant in their brief of

argument, and it is not the duty of the Appellants' witness

to establish service of notice of revocation as the document

evidencing service speaks for itself.

On the failure of the Appellants to state the overriding

public interest where a right of occupancy is stated to be

revoked for public purpose, the Appellants' counsel

contended that the Appellants are not bound to state the

public purpose, and the authority of CSS BOOKSHOP VS.

THE REGISTERED TRUSTEES OF THE MUSLIM

COMMUNITY OF RIVERS STATE (SUPRA) cited by the

Respondents' counsel is permissive and not compelling.

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On the admissibility of non-registration of land registrable

instrument argued by the Respondents in paragraph 4.14 of

their brief, learned counsel for the Appellants submitted

that the Respondent cannot abandon their claim for legal

title to now seek equitable interest and the decision of the

Supreme Court in MONKOM VS. ODILI (SUPRA) is not

helpful to their case.

On the effect of failure by only the chairman of the 2nd

Respondent to sign pre-action counseling certificate,

learned counsel for the Appellants submitted that signing

certificate of pre-action counseling by a party is a condition

precedent to commencing an action and failure to sign

same by a party is fatal and same cannot be waived nor

term a mere irregularity. He referred the Court to the case

of BALOGUN VS. UNIVERSITY OF ABUJA (2002) 13

NWLR PT.783 PG 42 AT 59.

On reliance by the trial Court on Exhibit P2, learned

counsel for the Appellants contended that Exhibit P2 is not

a title document. The Appellant never conceded that title is

vested on the 2nd Respondent and the same Exhibit P2 is

one of the several exhibits complained against in ground

one of the Appellants' notice of appeal.

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On the Respondents' contention that the issue of failure of

the trial Court to consider the issue of the Respondents'

breach of the terms of grant was not challenged in any of

the three grounds of appeal, learned counsel for the

Appellants submitted that ground one raises that complaint

and the failure of the trial Court to determine the issue on

the reason which the Appellants gave is failure to evaluate

evidence before it. He referred the Court to the case of

CHIEF T.A. ORJI & ANOR VS PDP & ORS (2009) 14

NWLR PT.1161 PG 408.

On the failure to hear the Appellants, motion to call

additional witness and documentary evidence, learned

counsel for the Appellants, contended that the law and

practice direction of this Court permits an Appellant to

challenge an issue which arose in the cause of the

proceedings alongside the final judgment and the Appellant

need not raise a ground of appeal on the issue.

He submitted that motions are integral part of every

proceeding and once filed, the Court must consider same

and pronounce on it. When a motion so filed is not

considered the Appellants are entitled to raise such issue

in appeal.

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He referred the Court to the cases of; FIRST ALL STATE

SECURITIES LTD & ANOR VS ADESOYE HOLDINGS

LTD (2013) 16 NWLR PT. 1381 AT 494;

UGOCHUKWU DURU VS. FEDERAL REPUBLIC OF

NIGERIA (2013) 6 NWLR PT. 1351 AT 461-462.

Learned counsel for the Appellants finally urged the Court

to discountenance the arguments of the Respondents,

uphold this appeal and accordingly set aside the judgment

of the lower Court.

In civil matters, the Court decides the case on the balance

of probabilities, or preponderance of evidence. This is done

when a trial Court puts on an imaginary scale the totality of

the evidence adduced by the parties before it, before

coming to a decision as to which of it, it accepts and which

it rejects.

It is trite law that the trial Court not being the apex Court

ought to consider all issues for determination properly

brought before it and to refuse to do so is tantamount to a

denial of fair hearing. In the instant case, the Appellants

contended that the trial Court erred in law in granting the

reliefs sought by the Respondents without evaluating and

taking into consideration all the evidence placed before it.

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The Appellants’ counsel submitted further in paragraph

4.45 of their brief of argument that the failure of the trial

Court to evaluate the adduced evidence before it, is

manifest in the way Exhibits P1, P4 & P6 were admitted

into the record of the trial Court.

Evaluation means the assessment of evidence as to give

value or quality to it. See the case of ONWUKA VS.

EDIALA (1989) 1 NWLR PT. 96 PG 182.

In the Evaluation of evidence, the trial Courts are guided by

the following principles namely;

a. Whether the evidence is admissible;

b. Whether the evidence is relevant;

c. Whether the evidence is credible;

d. Whether the evidence is conclusive; and

e. Whether the evidence is more probable than that given

by the other party.

See the case of MOGAJI VS. ODOFIN (1978) 4 SC 91.

Evaluation of evidence is primarily the function of the trial

Court. It is only where and when it fails to evaluate such

evidence properly or at all, that an appellate Court can

intervene and re-evaluate such evidence, otherwise the

appellate Court has no business interfering with the finding

of the trial Court on such evidence.

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See the case of ADEBAYO VS ADUSEI (2004) 4 NWLR

PT. 862 PG 44. In the instant case, I have carefully

perused the judgment of the trial Court, particularly its

findings at pages 250 - 257 of the record of appeal, wherein

the trial Court dealt with the issues of admission of Exhibits

P1, P4 & P6, it is my view that the trial Court rightly

admitted and unquestionably evaluates the said exhibits.

Therefore it is not the business of this Court to substitute

its own views for the views of the trial Court.

Learned counsel for the Appellants also contended that

several issues were raised at the trial Court but were not

considered. He argued further, that the trial Court failed to

consider in its judgment the issue of overriding public

interest as the ground for the revocation of the

Respondents’ title, and the issue of the breach of the 1st

Respondent's right of occupancy over plot 2775.

The trial Court in paragraph 3 of its judgment at pages 265

of the record of appeal found thus;

In the final stretch, I will determine as a prelude, the

disputed revocation of the 1st Respondent's title. The

evidence in support of this tendered by the Defendants are

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Exhibits D11 & D12. Exhibit D11 is a notice of revocation of

right of occupancy, reference file No. MISC 57787. It is

dated 8th February, 2010 and signed by one Dr. James

Agbonhense, Deed Registrar for the Minister (FCT). It

states that the land was revoked due to overriding public

interest. Even without looking at the reason for which the

land is revoked, the law is that effective service of a notice

of revocation is a sine qua non to any valid acquisition of

land by any government be it Federal, State or Local.... The

question is now whether notice was served in this case

either on the 1st Plaintiff or on the 2nd? From the totality

of evidence before me, it is difficult to hold that such notice

was served... Non service of notice of revocation is an acid

that eats up completely any case where revocation is

alleged and denied. In this case, I find and hold that the

purported revocation conveyed by the letter of 8th

February, 2010 is null and void and the acquisition fails

having been vitiated by the Defendant's failure to serve a

notice of revocation as prescribed by law."

Now can it be said that the trial Court failed in its judgment

to consider the issue of

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overriding public interest as the ground for the revocation.

I do not think so. I have also carefully gone through the

Appellants' final written address filed before the lower

Court, it is my view that there is nowhere in the said final

address wherein the Appellants' argued the issue of the

breach of the 1st Respondent's right of occupancy over plot

2775 for the trial Court to resolve it in its judgment.

On the Respondents' contention that issue one is too wide

and not capable of being distilled from ground three. It is

trite law that issues for determination must be based on the

ground of appeal and any issue or argument that does not

relate to any ground of appeal is incompetent. In the

instant appeal, a careful perusal of ground one of the

Appellants' grounds of appeal shows that the complaints of

the Appellants on the signing of pre-action counseling

certificate, whether Exhibit P6 is a title document which

confers title on the 2nd Respondent, whether a power of

Attorney constitute a legal title, whether a certificate of

occupancy does not confer title and the failure of the 2nd

Respondent to disclose on the face of the writ to disclose

that it was

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suing as Attorney to the 1st Respondent are not covered by

their issue one. Therefore, goes to no issue.

On issue of proper service of revocation notice on the

Respondents, learned counsel for the Appellants argued

that there was a proper service of notice of revocation by

post on the Respondents and the absence of date in the

certificate of delivery is not a conclusive proof of non

service.

Notice of revocation of a right of occupancy is indeed very

important because it informs the holder of the steps taken

to extinguish his right of occupancy. Thus the service of the

notice of revocation is sine qua non and the mode of service

of such notice is prescribed in Section 44 of the Land Use

Act. See EKUNDAYO & ANOR VS. FCDA & ANOR

(2015) LPELR-24512 CA.

The key witness on this issue is DW1 one Kumaiin Ikya a

staff of the FCTA in his testimony under cross-examination

he said;-

He knows that the 1st Plaintiff was issued with a certificate

of occupancy and the address of the 1st Plaintiff in that

certificate of occupancy is Ruwan Kanya, Rano, P.O. Box

2012, Kano, Nigeria. Exhibit D11, the purported revocation

notice was address to

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Federal Archive Fertile Acres Ltd P. O. Box 52, Addis

Ababa Crescent, Wuse 4, Abuja FCT. He also agreed that as

per the address, the purported notice of revocation was

address to any of the Plaintiffs.

The trial Court in its judgment found thus;-

"Firstly, there is no evidence that before the Court of the

receipt of notice of revocation.... The Plaintiffs have denied

knowledge of the address to which it was posted i.e. Plot

52, Addis Ababa Crescent, Wuse 4, Abuja FCT. That is

neither the address of the 1st or 2nd Plaintiff. Further,

under cross examination, DW1 admitted that the address of

the 1st Plaintiff is Ruwan Kanya, Rano, P.O. Box 2012,

Kano, Nigeria. DW1 confirmed further under cross

examination that the Defendants know the Plaintiffs'

addresses. DW1 finally agreed that he does not know

whether Exhibit D11 was served. The net effect of all this is

that the Defendants cannot say for certain if the revocation

notice was ever served on the Plaintiffs' i, e 151- or 2nd."

Section 44 (a), (b) and (c) of the Land Use Act which relates

to the service of notice provides;-

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"Any notice required by this Act to be served on any person

shall be effectively served on him-

a. By delivering it to the person or who is to be serve, or

b. By leaving it at the usual or last known place of abode or

c. By sending it in a prepaid registered letter addresses to

that person at his usual or last known place of abode."

From the evidence on record, I agree with the view of the

trial Court that the purported revocation conveyed by the

letter of 8th February, 2010 is null and void and the

acquisition fails having been vitiated by Defendant's failure

to serve a notice of revocation. If any service was done at

all it was done in violation, again of the provisions of

Section 28 of the Act. The evidence on record shows that

no compensation was paid to the Respondents.

On the Appellants' counsel contention that the action of the

trial Court in dismissing the Appellants' motion when the

motion had not been moved violated the Appellants' right to

fair hearing. This complaint of the Appellants is argued

under issue three distilled from ground three of the

Appellants' notice of appeal. The said ground three with its

particulars is reproduced below;

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"GROUND THREE

The learned trial judge erred in law when he dismissed the

motion of the Appellants' wherein they sought to bring in

an additional witness and documentary evidence.

PARTICULARS

a. The essence of bringing in the additional witness and

documentary evidence was to clarify salient issues.

b. The evidence adduced was not properly evaluated."

Grounds of appeal are generally complaints by a party to an

appellate Court against the decision of a lower Court and

so they must be in firma terra, that is, arise from the said

judgment. This is the precondition for the vesting of the

judicial power of the Constitution in the Courts. See the

cases of;

LIVESTOCK FOODS PLC VS. FUNTUA & ANOR. (2005)

17 NWLR (PT. 955) PG 549.

AMGBARE VS. SYLVA (2009) 1 NWLR (PT. 1121) AT

76-77.

I have carefully perused the entire judgment of the trial

Court, there is nothing in the said judgment to bear out the

Appellants' claim of its motion to call additional witness

being dismissed as alleged. Therefore, the said ground

three is incompetent. Since ground three is incompetent,

issue three from which it has been raised is incompetent,

the said issue three too cannot be considered and it is

hereby accordingly struck out.

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From all what I have said above, all the three issues for

determination in this appeal are resolved against the

Appellants and in favor of the Respondents.

There is no merit in this appeal and it is hereby dismissed.

The judgment of the trial Court is hereby affirmed.

There shall be no order as to costs.

PETER OLABISI IGE, J.C.A.: I agree.

TANI YUSUF HASSAN, J.C.A.: I had the opportunity of

reading before now, the judgment just delivered by my

learned brother, Hon Justice Abdu Aboki, PJCA.

My brother has thoroughly resolved the issues in this

appeal. I have nothing useful to add. I also dismiss the

appeal for lacking in merit.

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Appearances:

Peter Erivwode Esq,with him S.Q Agbor Esq,Wunuola Omonuwa Esq., and Ajuwas ShadrackEsq. For Appellant(s)

A.B. Anachebe SAN with him A.O Okpalah Esq,F.C. Anachebe Esq, Charles Jibuaku Esq.,Uchenna Uche Esq., Chinalo Ekwe Esq. andRebella Anachebe Esq. For Respondent(s)

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