➥ CASE SUMMARY OF:
Yakubu Ibrahim & Ors. v. Simon Obaje (2017) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC.60/2006
➥ JUDGEMENT DELIVERED ON:
Friday, the 15th day of December, 2017
➥ AREA(S) OF LAW
Consent of governor in private transactions;
Power of attorney;
Interest in land.
➥ PRINCIPLES OF LAW
⦿ PERSON CLAIMING DAMAGES SHOULD PROVE HE IS ENTITLED TO DAMAGES UNDER THAT HEAD
It is trite and well settled as rightly argued by the said counsel that:- the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head… See the cases of Oladehin v. Continental ile Mills Ltd (1978) NSCC, page 88 and also Imana v. Robinson (1979) NSCC page 1. — C.B. Ogunbiyi, JSC.
⦿ NO QUANTITY OF EVIDENCE TO WARRANT SPECIAL DAMAGES
Judicial decisions have shown that there is no particular type or quantity of evidence to warrant special damages. See the case of SPDC Ltd v. Tiebo VII & Ors (2005) 9 NWLR (Pt. 931) 439 wherein this Court said:- “…in other words, it is a general guide and arises from the fact that it is impossible to prescribe the quantity and nature of evidence required in a given case to justify entitlement to special damages. In some cases, it may be necessary to show documentary proof of the loss sustained, while in other, it may be unnecessary. The important thing is that the evidence proffered must be qualitative and credible and such as lends itself to quantification. Each case depends on its own facts and circumstances.” Pages 461462 paragraphs F – B of the report. — C.B. Ogunbiyi, JSC.
⦿ PARTIES ARE BOUND BY THEIR PLEADINGS AND CANNOT MAKE OUT A DIFFERENT CASE
The law is trite and held as very elementary that parties are bound by their pleadings and cannot make out a different case on appeal which is alien to that stated at the trial Court. The observation in that respect was rightly made by the lower Court and I so endorse. — C.B. Ogunbiyi, JSC.
⦿ PREAMBLE MUST BE HAD IN MIND WHILE APPLYING SECTIONS OF THE LAND USE ACT
The preambles to the Land Use Act, If looked at carefully and relating it to the case at hand, would reveal that the provision for consent of the Governor must not be applied to transfer of title or alienation of rights between private individuals where there is no overriding public interest or conflict between the parties. The application of the various Sections and provisions of the Land Use Act must be done with a view to the intendment of the drafters of the law, which is expressed often in the preamble. — C.B. Ogunbiyi, JSC.
⦿ THE CONCEPT OF GENERAL DAMAGES & SPECIAL DAMAGES
In the legal parlance. General damages are regarded those damages that the law presumes to be direct, natural or probable consequence of the act complained of. On the other hand special damages’ are simply’ such damages which the law will not infer from the natural consequences of the act complained of. They must always be proved, of course, after it was specifically pleaded. In otherwords, in general damages a Court can make an award when it can not point out any measure of assessment except what it can hold, in the yardstick of measurement by a reasonable man. But on the other hand, specific damages must be specifically pleaded item by item and each item duly and specifically proved in order to succeed in the award of such item. See Adekunle v Rockview Hotel Ltd (2004) 1 NWLR (pt 853)161 at 173/174; Adedo vs Ismaila (1969) NCLR 253. Ijebu- Ode Local Government vs Adedeji Balogun & Co Ltd (1991)1 NWLR (pt 166) 135. — A. Sanusi, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Clara Bata Ogunbiyi, J.S.C.
⦿ FOR THE APPELLANT
Festus Akponqualino, Esq.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
From the statement of claim, the plaintiff/Respondent asserted that he is the owner of the landed property known and described as 1 Plot F96, and Dutse Alhaji, Abuja and that he also had possession of the said parcel of land; that he bought the Plot from the former owner, Mr Otitoju Bonte who conveyed title to him, (Respondent) by virtue of an irrevocable Power of Attorney dated 19th October, 2000 given for value; that the said Plot F96 Dutse Alhaji is covered by a Certificate of Occupancy No. FCT/M2TP/OD/276 of 15th June, 1995 granted by Bwari Area Council; that a building plan for development of the plot was applied for and approved, by the Supervisory Authority. It was alleged further that the respondent commenced development on the plot with the initial structure totally completed; that while construction was on, the Defendants/appellants trespassed into the construction site, harassed the workers and disrupted the work. When these acts did not deter the work, the appellants got police who ordered the workers of the Respondent to stop work. In the absence of the workers the Appellants got into the plot and destroyed the concrete structure and a report of this destruction was made by Respondent to the police and hence the suit filed before the trial Court.
The Respondent then plaintiff issued a writ of summons against the appellants, then defendants at the High Court of Justice, Abuja on the 7th day of March 2001 claiming the following reliefs: “i. Declaration of title over plot F96 in his favour. ii. An order of perpetual injunction restraining the Defendants/Appellants and their servants, agents and privies from and further trespass to the land. iii. N1,600,000 (One million, Six Hundred Thousand Naira) special damages and listed are the items of the damages and value.”
An appeal lodged to the Court of Appeal by the appellant herein was unsuccessful and dismissed. The lower Court, in other words, upheld the findings on claim for trespass, declaration and also damages awarded by the trial Court. The appellants are dissatisfied again with the judgment of the lower Court and hence their appeal now in this Court vide Notice of Appeal dated 11th February, 2005 and filed the same day and containing four grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court of Appeal applied well known principle of law regarding proof of special damages in this case, when it held the evidence as put forward by the Respondent sufficient?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT RELEVANT EVIDENCE FOR GRANTING SPECIAL DAMAGES WAS PLEADED
“With reference made to the record of appeal the following facts are clear cut:- 1). PW1 and PW2, Simon 1 Obaje and Dele Abu respectively gave evidence on record that the Respondent had completed the building on Plot F 96 with the fence and gate in place. See pages 39 and 40 of the record. 2). PW2, PW3 and PW4, Dele Abu, Inspector Bonet S. Bonet and Cpl. Musa Ogoshi respectively, gave evidence that the appellants pulled down and destroyed the whole building. See pages 40 to 43 of the record of Appeal. 3). PW 1 gave evidence that he bought the piece of land known as Plot F.96 Dutse Alhaji from one Mr. Otitoju Bonte who conveyed the certificate of occupancy over the land to him and further gave the Respondent a Power of Attorney. 4). Respondent registered the Power of Attorney and also obtained approval for his building plan. This evidence was not challenged or rebutted. Respondent was in exclusive possession. See Pages 37, 52, 101 to 103 of the record. See also the decision in the case of Hitlar Osazuwa v. S. D. Ojo under reference supra. The Respondent in testifying as PW1 stated that he acquired Plot F.96 through a Power of Attorney given him by Mr. Otitoju Bonte: that Mr. Otitoju Bonte himself had a Certificate of Occupancy. He, the Respondent applied for and got a building plan approved by the Area Council. All these were admitted in evidence as Exhibits A, 12 B, and C respectively.”
B. THAT THERE ARE CONTRADICTIONS IN THE EVIDENCE OF THE APPELLANTS
“It is pertinent to restate that the evidence of PW1 and all other prosecution witnesses pinned the 2nd Appellant/Defendant at the site participating in the demolition of the structure and in getting into the premises in the first place when work was in progress and disrupting affairs. The 1st appellant/Defendant as DW1 in his evidence said he was outside the country at the material time. He did not tender any travel documents to show that claim; he did not also call any witness in support of that claim. The witness further said that 2nd appellant/Defendant, who is his wife was not in Abuja on the day in question but in Benin with her parents. The 2nd appellant/Defendant as DW1 under cross-examination however said she was in Dutse Alhaji, in Abuja on the day of incident even though she denied being at the site at the time of the incident. The 1st appellant/Defendant claimed to have bought the land in dispute from one Mohammed Kalgo by an agreement admitted as Exhibit D, which was made in 1996: that he had paid N45,000.00 but was yet to apply for a Certificate of Occupancy. He admitted under Cross-examination that the Certificate of Occupancy of Mr. Otitoju Bonte was made in 1995, which was the root of title of the Respondent/Plaintiff.”
C. THAT THE APPELLANTS NEVER CHALLENGED THE EVIDENCE OF THE RESPONDENTS ON THE SPECIAL DAMAGES
“The appellants also contended that the items in the claim must be backed by receipts. As rightly submitted on behalf of the respondent, there is no strict requirement for this. I seek to say as shown on the record that the building was put up and the Appellants destroyed it; the existence of the building was not denied by the appellants. It is confirmed by the evidence on the record which is very overwhelming. There was also no contrary evidence adduced by the appellants that the building was not constructed with the items so stated in the claim. The claims are verifiable and the Appellants never challenged or contradicted the evidence by the Respondent.”
II. Whether the Court of Appeal was right when it held that Non-commencement of action by a Donee in the principals name is an indulgence in fancy?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE RESPONDENT (DONEE) IS NOT THE AGENT OF THE DONOR
“From the facts of the present appeal, a pertinent question to ask, as rightly submitted by respondent’s counsel is, whether the Respondent herein is an agent to Mr. Otitoju Bonte, the Donor of Exhibit A. In the case of Vulcan Gases Ltd (supra), this Court explained the terms “Principal” and “agent” as, “the one on whose behalf an act is to be done, is called the Principal and the one who is to act is called the Agent.” When the fact of the case from the record is placed against the definition of principal and agent supra, it is apparent that the Respondent is not an agent for the Donor of Exhibit A and was not acting and neither was he meant to act on behalf of the Donor of Exhibit A.”
III. Whether in law a power of Attorney can transfer interest in land to a Donee?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE DECISION IN UDE v NWARA IS DISTINGUISHABLE FROM THIS CASE
“The learned appellants counsel to fortify their argument in challenging the view held by the lower Court at page 92 supra, anchored their argument on the case of Ude v. Nwara (supra) wherein Nnaemeka Agu JSC stated thus:- ‘A Power of Attorney merely warrants and authorizes the Donee to do certain acts in the stead of the Donor and so is not an instrument which confers, transfers, limits, charges or alienates any title to the Donee; rather it could be a vehicle whereby these acts could be done by the Donee for and in the name of the Donor to a third party.’
I seek to say at this point that the decision in Ude v. Nwara supra is distinguishable clearly from the present case under consideration. For purpose of recapitulation, the 2nd respondent in Ude v. Nwara issued a Power of Attorney to the 1st respondent while statutory lease period of the appellant had not been properly terminated as required by the Eastern Nigerian Law. The 2nd Respondent therein who was the Attorney General of the State who donated this Power of Attorney should not have done so since Government cannot revoke land (except for Public use) and re- allot same land to private person.”
B. THAT THE POWER OF ATTORNEY TRANSFERRED THE INTEREST IN LAND
“The lower Court did consider the facts in the decision of Ude v. Nwara (supra) before it concluded that the facts are not on all fours and as such should be distinguished. From the facts on the record, the Power of Attorney given to the Respondent by Mr. Otitoju Bonte has transferred the interest in Plot F.96. As rightly submitted by the respondent’s counsel, the lower Courts gave their judgments on the merit and the legal right of the parties as distinguished from the technicality of the law. See again the case of Cardoso v. Daniel supra and U.T.C. V. Pamotei (2001) 43 WRN 63 at 113; also United Nigeria Co. V. Nahman (supra).”
IV. Whether the consent of the Minister of Federal Capital Territory is necessary before the title of the property in contest in this case could be said to have been validly passed to the Respondent?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT IT IS NOT THE INTENDMENT OF THE DRAFTERS THAT CONSENT BE SOUGHT ON NON-CONTENTIOUS LAND TRANSFER
“For purpose of resolving this issue, it will be pertinent to resort to the preamble to the Land Use Act, 1978 (which was largely drawn from the minority report of the Land Use Panel set up in May, 1977). This report nationalized land in Nigeria and the general intendment of the Act can be deduced from the preamble which states: “Whereas it is in the public interest that the rights of all Nigerians to the land of Nigeria be asserted and preserved by law. And whereas it is also in the public interest that the right of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured protected and preserved.” Following from the foregoing re-statement, it is clear that the essence of the Act is to preserve and protect the rights of Nigerians to enjoy and use land, and further enjoy the fruits from the land. Citizens should be allowed to transact on their properties without unnecessary and undue interference by the State. By the phrase the enjoyment of the land and the fruits thereof should be given a simple and ordinary interpretation. In other words, the fruits of the land can be houses, installations in minerals and plants. I agree with the respondent’s counsel that it is not the intendment of the legislature that Section 22 of the Land Use Act, on consent would limit and deny parties of their rights to use and enjoy land and the fruits thereto in a non contentious transaction or alienation. The Section cannot be given a literal interpretation as would be seen from the preamble. I seek to buttress and support the forgoing contention with the view held by the learned jurists Karibi-Whyte, JSC in the case of Abioye v. Yakubu (supra) wherein he said:- ‘…in construing a law like the Land Use Act, it is always of considerable assistance to consider the history and also purpose of the law as enshrined in it’s preamble, and if possible the social objectives …the intention of the Act as clearly stated is to assert and preserve the rights of all Nigerians to the land of Nigeria in the public interest. It is also in the public interest that the right of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof to sustain themselves and their families should be assured ,protected and preserved.’”
B. THAT THE LAND USE ACT EXISTS TO MAKE LAND ACCESSIBLE
“As rightly submitted on behalf of Respondent, the Act was enacted to address the problems of uncontrolled speculations in Urban lands, make land easily accessible to every Nigerian irrespective of gender, unify tenure system in the country to ensure equity and justice in land allocation and distribution, and amongst others, to certain extent prevent fragmentation of Rural lands arising from the application of the traditional principle of inheritance. The consent clause in the Act therefore gives the Governor the required supervisory control of lands in the territory.”
C. THAT IT IS NOT THE INTENTION OF THE LEGISLATIVE TO DENY PRIVATE PERSONS ENJOYMENT OF LAND BECAUSE OF CONSENT
“In response to the question raised, I hold the firm view that the imposition of the general rule to the matter herein would inhibit the right to free contractual agreement. This is in view of the peculiar circumstance of this case, thus resulting in gross injustice and giving room to sheer technicality, which this Court had consistently warned against. This is more so especially when regard is had to the general intendment of the Act as was reproduced earlier from the preamble to the Land Use Act, 1978. In other words, the essence of the Act is to preserve and protect the rights of Nigerians to enjoy and use land, and further, enjoy the fruit from the land. I will repeat again that it is not therefore the intention of the legislature that Section 22 of the Land Use Act, should limit and deny parties of their rights to use and enjoy land and the fruits thereto in non-contentious transaction or alienation. The case at hand is a private transaction between individuals. Again the view held by this Court per Karibi- Whyte, JSC in Abioye v. Yakubu (supra) is in point and comes to force. The intention of parties are given due respect in private contractual agreements. This is paramount and the contrary should not be forced upon them. I wish to emphasize without any fear of contradiction that the Supreme Court authorities cited by the appellants’ counsel are applicable in the cons and terms of agreement within which the Power of Attorney was executed and agreed upon. It is correct to say also that those terms in the authorities under reference are distinguishable from the case in issue which is an exception to the general rule. The parties herein have bonded themselves to an irrevocable term of agreement and their intention ought to be respected and given full effect.”
“On the totality of this appeal, the two lower Courts are concurrent in their findings. I also find no reason why the judgment of the lower Court should be disturbed. I hereby also endorse the conclusion arrived at by the lower Court wherein it affirmed the judgment of the trial Court. The appeal lacks merit and I also dismiss same. The judgment of the lower Court is hereby affirmed also by me and I make an order of N500,000.00 costs in favour of the respondent against all the appellants. Appeal is dismissed with N500,000.00k costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)