BILL & BROTHERS LTD & ORS V DANTATA & SAWOE CONSTRUCTION CO (NIG) LTD & ORS

CORAM

OLABODE RHODES-VIVOUR JUSTICE, COURT OFAPPEAL

PARTIES

1. BILL & BROTHERS LTD

2. SA’ADAH GLOBAL ENTERPRISES

3. MAPIT CONSULTANTS LTD

APPELLANTS 

1. DANTATA & SAWOE CONSTRUCTION CO (NIG) LTD

2. HONOURABLE MINISTER, FEDERAL CAPITAL TERRITORY

3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/1st Respondent took out an originating summons against the 2nd and 3rd Respondents as well as the Appellants who were joined by the order of the court, at High Court of the Federal Capital Territory, Abuja. The court ordered pleadings to be filed  and the 1st Plaintiff/Respondent claimed a declaration that the 1st and 2nd Defendant’s purported revocation/withdrawal of the grant and development of Plot774 Cadastral Zone AOO, CBD, Abuja after acceptance, grant of building approval and commencement of development by the Plaintiff is arbitrary, illegal and void, that the revocation of the earlier grant and reallocation to the 3rd,4th and 5th Defendants is illegal null and void being inconsistent with the provisions of section 28,51, etc of the Land Use Act and Sections 43 & 44 of the 1999 Constitution of the Federal Republic of Nigeria. The Plaintiff/1st Respondent also sought a declaration that the demolition of his fence on the said land and forcible dispossession was illegal, unconstitutional, null and void, an order setting aside the revocation of the grant and any right or certificate of occupancy issued in favour of the 3rd,4th and 5th Defendants, an order of injunction restraining the Defendants from interfering with the Plaintiff’s use of the said plot  and damages. At the conclusion of trial, the court found in favour of the 1st Respondent and granted all the reliefs sought but varied the damages awarded. Aggrieved by the trial court’s decision, the Appellants have lodged the instant appeal.

HELD

Appeal Succeeds in Part

ISSUES

Whether in view of the arbitration agreement in the Development Lease Agreement between the plaintiff and the 1st and 2nd defendants, the trial court was robbed of the jurisdiction to hear and determine the plaintiff’s suit and the entire judgment is a nullity.

Whether the trial court was right in holding that the defendants have abandoned their defence, considering that the defendants had relied on documents tendered by the plaintiff and elicited evidence through cross-examination in support of their defence.

Whether the trial court was right when it held that the plaintiff was a holder of a statutory right of occupancy considering that the plaintiff did not establish its title by documents of title or any other legally recognized way of establishing title to land.

Whether the trial court was right in holding that it was the 1st and 2nd Defendant’s variations and defaults that forestalled or delayed the plaintiff’s compliance with the Development Lease Agreement.

Whether the trial court was wrong in applying section 28 of the Land Use Act to hold that the revocation of the plaintiff’s land was illegal because the withdrawal was not for overriding public interest; considering that the only relationship between the plaintiff and the  1st  and 2nd  Defendants was a license as opposed to statutory right of occupancy.

Whether in view of the nature of the evidence led by the plaintiff the trial court was right in holding that the demolition of the plaintiff’s fence was without recourse to the procedure laid down by law and thereby proceeding to make an award of general and exemplary damages against the defendants.

RATIONES DECIDENDI

DOCUMENTS OF TITLE TO LAND – ISSUES A COURT MUST SATISFY ITSELF WITH WHEN A PARTY RELIES ON DOCUMENTS OF TITLE TO LAND

“Where a party relies on production of documents of title, the court must satisfy itself that;
(a) the document is genuine or valid;
(b) it has been duly executed, stamped and registered;
(c) the grantor has the authority and the capacity to make the grant;
(d) that the grantor had in fact what he purposed to grant, and;
(e) that the grant has the effect claimed by the holder of the instrument See Romaine V. Romaine (1992) 4 NWLR (238) 850 and Oyeneyin V. Akinkugbe (2010) 4 NWLR (1184) 285,285.” PER J.E.EKANEM, J.C.A

RIGHT – A RIGHT SUBJECT TO THE OCCURRENCE OF AN EVENT CANNOT VEST UNTIL THE OCCURRENCE OF THE EVENT

“Where a right is subject to the occurrence of an event or a condition precedent, the right cannot vest until the occurrence of the event. See Owena Bank (Nig) Plc V. Adedeji (2000) 7 NWLR (666) 609 and FCDA V. Koripamo – Agary (2010) 10 NWLR (1213) 364, 392”. PER J.E.EKANEM, J.C.A

EFFECT OF AN ARBITRATION CLAUSE IN AN AGREEMENT – AN ARBITRATION CLAUSE IN AN AGREEMENT ONLY POSTPONES THE RIGHT OF EITHER OF THE PARTIES TO THE AGREEMENT TO RESORT TO LITIGATION AND DOES NOT RAISE THE ISSUE OF JURISDICTION OF A COURT

“The first point to be made is that an arbitration clause in an agreement does not raise the issue of jurisdiction of a court. This is because the jurisdiction of a court is donated to it by the Constitution of Nigeria and /or the statute establishing the court. Parties cannot by their agreement seek to oust the jurisdiction so donated, it would be a constitutional apostasy to hold otherwise. An arbitration clause only postpones the right of either of the parties to the agreement to resort to litigation in court whenever the other contracting party elects to submit the dispute under the agreement to arbitration.”PER J.E.EKANEM, J.C.A

EVALUATION OF EVIDENCE – EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE IS THE FUNCTION OF A TRIAL COURT –AN APPELLATE COURT WOULD INTERFERE WHERE SUCH EVALUATION IS PERVERSE

Evaluation of evidence and the abscription of probative value to it is basically the function of a trial court which has the unique opportunity of seeing the witnesses and observing their demeanour. Where a trial court has properly evaluated evidence led and has reached its conclusion thereon an appellate court will not interfere. It can only interfere where the conclusion reached is perverse. However, where a case is based on documentary evidence, as in this instance, an appellate court is in as good a position as the trial court to evaluate the documentary evidence. See Asika V. Atuanya (2008) 17 NWLR (1117) 484, 521-522 and Jimoh V. Akande (2009) 5 NWLR (1135) 549, 584”. PER J.E.EKANEM, J.C.A

PARTIES TO AN AGREEMENT – A NON-PARTY TO AN AGREEMENT CANNOT ENFORCE THE AGREEMENT EVEN IF IT IS MADE FOR HIS BENEFIT.

“The law is that a non-party to an agreement cannot enforce the same even if it is made for his benefit. See Ikpeazu V. ACB Ltd (1965) NMLR 374, 379 and Nwuba V. Ogbuchi (2008) 2 NWLR (1072) 471, 481.” PER J.E.EKANEM, J.C.A

EVIDENCE IN SUPPORT OF PLEADINGS – FAILURE OF THE DEFENDANT TO LEAD EVIDENCE IN SUPPORT OF HIS STATEMENT OF DEFENCE RENDERS SAME ABANDONED

“Where a defendant leads no evidence in support of his statement of defence, the same is deemed as abandoned and the court cannot resurrect the pleadings to find a defence therein for him. See Owners of MV Gongola Hope V. Smurfit Cases Nig. Ltd (2007) 15 NWLR (1056) 139, 207 and Sarka V. Ijuh (2010) 4 NWLR (1184) 405, 425.” PER J.E.EKANEM, J.C.A

POSSESSION – POSSESSION CANNOT RIPEN INTO TITLE

“Possession no matter how long cannot ground a claim in title against the true owner. See Nwosu V. Udeaja (1989) 1 SCNJ 152, 166. Again the acts of ownership and possession were pursuant to a lease agreement and cannot therefore ripen into title. More importantly, if a pleaded root of title is not established as in this case, it will be futile to go to issue of possession or acts of ownership. See Ukaegbu V. Nwololo (2009) 3 NWLR (1127) 194, 220.”PER J.E.EKANEM, J.C.A

TERMS OF AN AGREEMENT – PARTIES ARE BOUND BY THE TERMS OF THEIR AGREEMENT

“Parties are bound by the terms of their agreement and the court cannot go outside it on a voyage of discovery. See Abdullahi V. Waje Community Bank (2000) 7 NWLR (663) 9, 25 and Agbareh V. Mimra (2008) 2 NWLR (1071) 378, 412.” PER J.E.EKANEM, J.C.A

CLAIM FOR DECLARATION OF TITLE TO LAND – DUTY ON A PARTY TO SATISFY THE COURT BY EVIDENCE THAT HE IS ENTITLED TO A CLAIM FOR DECLARATION OF TITLE TO LAND

“In a claim for declaration, it is incumbent on the claimant to satisfy the court by evidence that he is entitled to the claim and not rely on admission or default of pleading by his opponent. See Bello V. Eweka (1981) 1 SC 101,102 and Ayanru V. Mandilas Ltd (2007)4 SC (111) 58, 73”. PER J.E.EKANEM, J.C.A

CREATION OF A CONTRACT- AN OFFER MUST BE ACCEPTED BEFORE A CONTRACT IS CREATED

“An offer must be accepted before there can be a contract. See Nneji V. Zakhem Con. (Nig) Ltd (2006) 12 NWLR (994) 297, 311.” PER J.E.EKANEM, J.C.A

TITLE TO LAND – WAY OF PROVING TITLE TO LAND

“There are five ways of proving title to land in Nigeria, namely; proof
(i) by traditional history;
(ii) by acts of ownership such as selling, leasing, renting out the land or a part of it or farming on it or otherwise utilizing the land beneficially over a sufficient length of time, numerous and positive enough to warrant inference of ownership;
(iii) production of documents of title duly authenticated;
(iv) by acts of long possession and enjoyment over the land, and;
(v) by acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land I dispute. See Idundun V. Okumagba (1978) 9 -10 SC 227, 246 -250 and Dakolo V. Rewane -Dakolo (2011) 16 NWLR (1272) 22, 46.
It must be added that proof of any of those ways of establishing title is sufficient to ground declaration of title. See Eigbejale V. Oke (1996) 37 LRCN 533, 556 and Balogun V. Akanji (1998) 2 SC (1) 199”. PER J.E.EKANEM, J.C.A

IMPLICATION OF ARBITRATION – WHEN A PARTY TO AN AGREEMENT PROPERLY RAISES THE ISSUE OF ARBITRATION THE COURT WILL STAY THE PROCEEDING PENDING THE ARBITRATION

“Whenever a party to the agreement promptly and properly raises the issue of reference to arbitration, the court seized of the matter will lean towards enforcing the clause, not by striking out the case for want of jurisdiction but by staying proceedings pending arbitration.
Section 5 (1) of the Arbitration and Conciliation Act Cap A18 LFN, 2004, provides that;
” If any party to an arbitration agreement commences any action in any court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement, may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay proceedings”. PER J.E.EKANEM, J.C.A

ARBITRATION CLAUSE IN AN AGREEMENT – THE INCLUSION OF AN ARBITRATION CLAUSE IN AN AGREEMENT DOES NOT OUST THE JURISDICTION OF THE COURT

“In the case of Confidence Insurance Ltd V. The Trustees of The Ondo State College of Education Staff Pension (1999) 2 NWLR (591) 373, 390, Achike, JCA, as he then was, stated that;
“It should be noted that the inclusion of in an agreement to submit a dispute to arbitration does not generate the heat of ouster of jurisdiction of the court. It merely postpones the right of either the contracting parties to resort to litigation whenever the other contracting party elects to submit the dispute under their contract to arbitration”.
See also Lagos State Water Corporation V. Sakamori Construction (Nig) Ltd (2011) 12 NWLR (1262) 569, 599, where Okoro, JCA, as he then was, stated that;
“I know that no arbitration clause in any agreement can be made to oust the jurisdiction of the High Court granted under Section 272 (1) of the Constitution of the Federal Republic of Nigeria, 1999.” See also R.C. Omeaku &Sons Ltd V. Rainbownet Ltd (2014) 6 NWLR (1401) 516, 534 and 535.” PER J.E.EKANEM, J.C.A

CASES CITED

STATUTES REFERRED TO

Arbitration and Conciliation Act, LFN, 2004.

Land Use Act 1979

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