CORAM

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Abba Bello Mohammed Justice of the Court of Appeal

Peter Chudi Obiorah Justice of the Court of Appeal

Hadiza Rabiu Shagari Justice of the Court of Appeal

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PARTIES

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CHIMELE OKEZIE

APPELLANTS 

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1. ISHAYA ADIYHA ADIWU

2. BARR. LILIAN OJINMA

3. MINISTER OF THE FEDERAL

CAPITAL TERRITORY

4. FEDERAL CAPITAL DEVELOPMENT AUTHORITY

5. ABUJA METROPOLITAN MANAGEMENT COUNCIL (AMMC)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The 1st Respondent, Ishaya Adiyha Adiwu is the allotee of Plot No. 382, Gwarimpa District, Cadastral Zone C02, Abuja and that by a power of attorney he appointed the 2nd Respondent, Barr. Lilian Ojinma as his Attorney to superintend and take over the management of the residue of his interest in the subject property.

He claimed that based on an application for residential plot which he made sometime in 1994, the 1st Respondent was allotted the subject plot, measuring approximately 1,270m2 and was duly issued with Letter of Offer of Terms of Grant/Conveyance of Approval for Statutory Right of Occupancy within the FCT, dated 19/12/95 with File No. PL. 1577.

That the 1st and 2nd Respondents made payment of the sum of N1,100,000.00 as part-payment for processing the Certificate of Occupancy and also applied for building plan approval. That they also applied for recertification at the Abuja Geographic Information Systems (AGIS) and paid the requisite fees for which they were issued Recertification and Re-issuance of C-of-O Acknowledgement dated 04/28/05 with File No. PL. 1577 and New File No. PL. 102284. That AGIS issued Right of Occupancy No. 94/PL 1577 rent and fees of N2,601,217.67, but the 1st Respondent wrote to AGIS indicating his earlier part payment of N1,100,000.00 as a result of which he was advised to pay the balance.

That even as the recertification exercise was being done, the 1st and 2nd Respondents had already commenced development of the plot and have remained in unchallenged possession of same. That when the 1st and 2nd Respondents sought to continue with the development, the agents of the 5th Respondent marked ‘STOP WORK’ on the property on the ground that the 1st and 2nd Respondents’ file could not be found at the Land Registry of the 3rd and 4th Respondents.

That after several visits to the Land Registry, they were advised to write for the opening of a temporary file to enable their building plan approval to be processed, but instead of processing same the agents of the 5th Respondent posited that the plot had been granted to another allotee.

That after meeting with the agents of the 3rd, 4th and 5th Respondents they admitted multiple allocation and suggested that the other allotees would be offered alternative plots, instead the agents of the 5th Respondent visited the plot, marked some points and asked the security man to vacate the plot for another allottee to take over.

This led the 1st and 2nd Respondent to institute the suit claiming for the reliefs stated above.

After a trial, the trial Court delivered its judgment in favour of the 1st Respondent and dismissed the counterclaim of the Appellant.

Dissatisfied with the judgment of the trial Court, the Appellant filed an instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Preliminary Objection

2. Whether the trial Court’s amendment of the parties to the suit and the reliefs sought by the 1st and 2nd Respondents while delivering its judgment denied the Appellant fair hearing?

3. Whether the trial Court properly considered the case and evaluated the evidence adduced before it in reaching its decision?

 

 

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RATIONES DECIDENDI

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JURISDICTION – WHEN AND WHERE ISSUES OF JURISDICTION CAN BE RAISED

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…issue of jurisdiction can be raised in any manner, even viva voce and at any stage of Court proceedings, even for the first time on appeal to this Court or to the Supreme Court, ANYANWU v OGUNEWE & ORS (2014) LPELR-22184(SC) at 31, paras. E – G; and NOBIS-ELENDU v INEC & ORS (2015) LPELR-25127(SC) at 64 – 65, paras. F – D. – Per A. B. MOHAMMED, JCA

 

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DECISION – WHETHER THE FAILURE TO APPEAL A DECISION AFFECTS THE JURISDICTION OF AN APPELLATE COURT

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Whether that decision of the trial Court was or was not appealed against and its implication on the appeal, relates to the appeal proper and not to the jurisdiction of this Court to hear the appeal. – Per A. B. MOHAMMED, JCA

 

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WAIVER – HOW THE CONCEPT OF A WAIVER OPERATES

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In LONGTERM GLOBAL CAPITAL LTD & ANOR v STANBIC IBTC BANK PLC (2022) LPELR-58907(SC), the Supreme Court explained that the concept of waiver of right, where His Lordship Aboki, JSC held thus:

“My Lords, in law, the concept of waiver is one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. It has been settled that waiver must be in respect of a private right and for benefit of a particular person that is in contradistinction to a public right which one person cannot waive because it is intended for public good. As such, a statutory provision for the benefit of a person can therefore be waived because it confers a private right or protects a private interest. It is not in doubt that the right to appeal is a private right that can be waived.” – Per A. B. MOHAMMED, JCA

 

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NOTICE OF APPEAL – WHETHER A NOTICE OF APPEAL IS RENDERED INVALID BY THE CHOICE OF WORDS USED IN AN APPELLANT’S RELIEF

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The mere fact that the Appellant has used the word “quash” instead of “set aside” does not, in my respectful view, render invalid the Appellant’s relief in the Notice of Appeal. More so, when by Order 23 Rule 11 of the Court of Appeal Rules, 2021, this Court is empowered to give any judgment or make any order that ought to have been made and to make such further order(s) as the case may require, which power this Court may exercise in favour of all or any of the parties. – Per A. B. MOHAMMED, JCA

 

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COURTS – CONDUCT OF COURTS TO TECHNICALITIES

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Courts of today are more inclined to substantial rather than technical justice; IKECHUKWU v NWOYE & ANOR (2013) LPELR-22018(SC) at 10, paras. A – E; and KOKO v KOKO & ORS (2023) LPELR-59773(SC) at 44 – 45, paras. E – A. – Per A. B. MOHAMMED, JCA

 

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MISJOINDER OR NON-JOINDER – THE EFFECT OF MISJOINDER AND NON-JOINDER OF PARTIES ON PROCEEDINGS

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…Secondly, it is trite that proceedings are not defeated by reasons of misjoinder or non-joinder of parties, as Courts are generally empowered to deal with matters before them as regards the rights and obligations of the parties before them.

Specifically for this appeal, Order 18 Rules 1 and 2 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2018 provides as follows:

“18(1) No proceeding shall be defeated by reasons of misjoinder or non-joinder of parties, and the Court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before him.

(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the names of any parties improperly joined be struck out.”

See also on this: CO-OPERATIVE & COMMERCE BANK (NIG) PLC v ROSE U & ORS (1998) LPELR-8091(CA) at 5, paras. C – E; and ZILLION ENGINEERING (NIG) LTD v ADEBAYO (2022) LPELR-57794(CA) at 32, paras. C – E. – Per A. B. MOHAMMED, JCA

 

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PARTY – THE CONSEQUENCE OF STRIKING OUT THE NAME OF A PARTY NOT PROPERLY JOINED IN AN ACTION

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…as held by the Supreme Court in YUSUF v OBASANJO (2004) 9 NWLR (Pt. 877) 144, per Kutigi, JSC, the consequences of striking out the name of a party who was not properly joined in an action is that any allegations made against him become irrelevant and incompetent. – Per A. B. MOHAMMED, JCA

 

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COURTS – CONDUCT OF APPELLATE COURT TO A TRIAL COURT’S EVALUATION OF EVIDENCE

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It is settled that an appellate Court, such as this one, does not interfere with a trial Court’s evaluation of evidence and its findings thereon, unless it is established that the trial Court had failed to or improperly evaluated the evidence leading to a perverse finding that has occasioned miscarriage of justice. This is because evaluation of evidence is the primary duty of a trial Court before which the witnesses that give evidence appear and which is thus in a position to see the witnesses, watch their demeanour and assess their credibility. See EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, para. C; and OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6 – 7, para. E. – Per A. B. MOHAMMED, JCA

 

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APPELLANT – DUTY OF AN APPELLANT CONTESTING EVALUATION OF EVIDENCE BY A TRIAL COURT

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An appellate Court only deals with the cold printed record of what transpired at trial as transmitted in the Record of Appeal. Thus, an appellant, such as the one herein, who complains against the evaluation of evidence made by a trial Court has the burden of establishing not only the impropriety in the evaluation made by the trial Court but also of showing that the impropriety has led to a perverse finding which has occasioned a miscarriage of justice. See BELLO v FRN (2018) LPELR-44465(SC), per Bage, JSC at pages 13 – 17, para. A; and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14 – 15, para. E. – Per A. B. MOHAMMED, JCA

 

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HEARSAY – WHAT CONSTITUTES HEARSAY EVIDENCE

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It is settled law that every statement which seeks to establish a fact, whether oral or written, made by a person is hearsay unless it emanates from his personal knowledge, either with respect what he has personally seen or heard or perceived. In other words, proof of facts can only be made by witnesses to those facts. See Section 37 of the Evidence Act, 2011 and SUBRAMANIAM v PROSECUTOR (1965) 1 WLR 965; MOHAMMED v A-G, FEDERATION (2020) LPELR-52526(SC) at 27 – 28, paras. F – E; and EDOSA & ANOR v OGIEMWANRE (2018) LPELR-46341(SC) at 48 – 49, paras. B – E. – Per A. B. MOHAMMED, JCA

 

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PUBLIC DOCUMENT – DUTY OF PUBLIC OFFICERS HAVING CUSTODY OF PUBLIC DOCUMENTS

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By Section 104 of the Evidence Act, 2011, every public officer having custody of a public document is mandated to, on demand, issue certified true copies thereof to any person who has a right to inspect such. See also TABIK INVESTMENT LTD v GUARANTY TRUST BANK PLC (2011) LPELR-3131(SC); and BIYE v BIYE (2014) LPELR-24003(CA). – Per A. B. MOHAMMED, JCA

 

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PERSON INTERESTED’ – ADMISSIBILITY OF A STATEMENT MADE BY A ‘PERSON INTERESTED’

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it is trite that any statement made by a person interested at a time when proceedings are pending or anticipated involving a dispute as to any fact which the statement might tend to establish is inadmissible.

However, it has been held that the definition of “person interested” does not include a person acting in official capacity. A person acting in official capacity merely performs his official duties and is assumed not to be swayed by any personal interest and therefore, has no temptation to depart from the truth. See ABDULLAHI v MAITSIDAU & ORS (2011) 3 NWLR (Pt. 1233) 55 at 71 – 72; HIGH-GRADE MARITIME SERVICES LTD v FBN LTD (1991) 22 NSCC (Pt. 1) 119 at 135; N.S.I.T.F.M.B. v KLIFCO NIG. LTD (2010) LPELR-2006(SC) at 22 – 23, paras. C – B; and DONLI v ABDULLAHI & ORS (2014) LPELR-23011(CA) at 14 – 19, paras. A – D. – Per A. B. MOHAMMED, JCA

 

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CIVIL PROCEEDINGS – BURDEN AND STANDARD OF PROOF IN CIVIL PROCEEDINGS

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In wrapping up this issue, let me restate the trite principle that in civil proceedings the burden and standard of proof is on the balance of probabilities and preponderance of evidence. Hence, judgment is given to the party with greater weight of evidence: INTERDRILL (NIG) LTD & ANOR v UBA PLC (2017) LPELR-41907(SC) at 26, paras. C – D; and NEWBREED ORGANISATION LTD v ERHOMOSELE (2006) LPELR-1984(SC) at 25 – 26, paras. F – A. – Per A. B. MOHAMMED, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Court of Appeal Rules, 2021

2. Evidence Act, 2011

3. Land Registration Act

4. Stamp Duties Act

5. High Court of the Federal Capital Territory (Civil Procedure) Rules, 2018

 

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