ALHAJI SAYINNA ADAM v. HUSSAINI ZANNAH SHAIBU & ORS
(2016)LCN/8236(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/J/337/2014
RATIO
LAND LAW: LAND IN DISPUTE; WHEN DOES THE IDENTITY OF THE LAND IN DISPUTE BECOME AN ISSUE
The “land in dispute” means the land being claimed by the claimant and the respondent or defendant. See Akintola vs. Solano (1980) 2 NWLR (Pt.24) 598 at 622. The identity of the land in dispute becomes an issue only if raised in the pleadings. See Fatuade vs. Owoamanam (1990) 3 SCNJ 200; Ezeudu vs. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 210 and Atolagbe vs. Shorun (1985) 4 SC 250 at 257-258. per. JOSEPH TINE TUR, J.C.A.
LAND LAW: THE POSITION OF THE LAW ON THE IDENTITY OF THE LAND IN DISPUTE
The law is well settled on the issue of the identity of the land in dispute. In Olusanmi vs. Oshashona (1992) 6 SCNJ (Pt.2) 282 the Supreme Court held at page 290 as follows:
“It was argued also in the appellant’s brief that the evidence as to boundaries of the land in dispute by the respondent and his witnesses contradicted that of the appellant and his witnesses. I do not see how this affects the discharge of the onus on the respondent to prove with certainty the land he lays claim to. It must be borne in mind that this is not a case of boundary dispute between two families or two persons. It is not respondent’s case that he has boundary with the appellant. Appellant presumably knows the land he was describing in his evidence; that description is not binding on the respondent. On the visit to the locus in quo, respondent took the trial Court and the appellant to the land he claimed and which he and his witnesses described in evidence. Appellant did not dispute that that was the land in controversy between him and the respondent. I can find no substance in the appellant’s complaint that the land claimed by the respondent was not described with certainty at the trial. Question (1), is, therefore, resolved in respondent’s favour.” per. JOSEPH TINE TUR, J.C.A.
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
ALHAJI SAYINNA ADAM – Appellant(s)
AND
HUSSAINI ZANNAH SHAIBU
TIJJANI USMAN
ALHAJI BABA ALHAJI ALI
ALHAJI KABIRU
ALI M. BULAMA
ALHAJI ABBA – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): I have tagged my opinion ‘Decision’ ’because of the provisions of Section 294(1) (5) read together with Section 318(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended: The Constitution provides that the determination of each Justice of the Court of Appeal or the Supreme Court is either an opinion or a decision. The word ‘Ruling’ is not to be found in the definition of ‘decision’. Under Section 318(1) of the Constitution supra.
The appellant and the respondents claim plots 224, 226, 230, 232 and 234 in Block BOSA 58 lying and situate at Mashamari Layout in Jere Local Government Area in Bornu State. The respondents instituted this action against the appellant before the High Court of Justice, Maiduguri, Bornu State on 5th August, 2005.
Having set out the genesis that led to the dispute in paragraphs 1-20 of the statement of claim they sought the following remedies against the appellant:
1. A declaration of Right of Occupancy over plot of land nos. 224, 234, 228, 226, 232 and 230 in block BOSA 58
lying and situate at Mashamari layout of jere Local Government Area.
2. A declaration that the plaintiffs are the legal owners, and occupants of these plots of land and therefore entitled to right of possession.
3. An order of injunction.
4. Cost of the suit.
The claims were disputed in a 20 paragraph statement of Defence. Paragraph 20 of the Defence read as follows:
(a) As at 2005 when the Jere Local Government purportedly allocated land to the plaintiffs overlord, there was no empty plot of land in the area that could be granted to any person.
(b) As at the time the Plaintiffs purported to have bought the various plot of land mentioned in their statement of claim, those plots were no longer empty plots but built up properties belonging to different persons over several years.
(c) The various plots mentioned in the plaintiffs statement of claim are separate and distinct from the defendants land and separated by access road, both on the site plan and on the ground.
(d) The defendant has already fenced his own land without any let or hindrance and his plots of land is bounded on all side by access
road.
(e) The letters of allocation and the certificates of occupancy presented by the plaintiffs does not relate to and has no connection with the land granted to the defendant, and over which he has been exercising full rights thereon.
(f) Jere Local Government has no power to allocate any land to the plaintiffs or their overlord in Mashamari Ward where the land being claimed is situate, because it is within 22 kilometre radius to Shehu Palace.”
The appellant file a Statement of Defence and counter-claimed these plots, pleading as follows:-
1. The defendant reproduces all the averments in paragraphs 1-20 of the statement of defence and adopt same herein.
2. The defendant plead that the said six plots, allocated to him, since 1987 have all along being under his exclusive possession, and he has been exercising all forms of rights thereon without let or hindrance.
3. The defendant pleads that the plaintiffs encroached on the land without his permission and consent and embarked on construction work thereon, thus altering the face of the land to the detriment of the defendant.
4. Wherefore the defendant counter claim as
follows:
(a) A declaration of title to the plots of land described as plots No.235, 236, 237, 238, 239 and 240 on BOSA 58 situate and lying at Mashamari layout Maiduguri.
(b) An order directing the plaintiffs to remove all the construction work embarked upon by them on the land within 30 days of the Courts judgment.
(c) An order of perpetual injunction restraining the plaintiffs from further trespassing on the said plots of land.
(d) The sum of N350,000.00 being damages for trespass against the plaintiffs jointly and/or severally.
(e) Plus the costs of this suit.
The respondents filed and served a reply to the Statement of Defence. Thereafter the parties called oral and documentary evidence. Learned counsel submitted written addresses. The learned trial Judge held at page 104 lines 5-15 of the printed record as follows:
On the whole judgment be and is hereby entered in favour of the plaintiffs and against the defendant in the following term:
1. A declaration that the plaintiffs have right of Occupancy over plots Nos.224, 234, 228, 226, 232 and 230 in Block BOSA 58 lying and situate at Mashamari
Layout of Jere Local Government Council.
2. That the defendant pulls the wall he erected surrounding the six (6) plots of the plaintiffs forthwith.
3. An injunction restraining the defendant, his privies, assigns, servants, agents or whosoever may claim through from further trespassing into or around the plaintiffs six (6) plots.
4. Cost of N20,000.00 for each of the plaintiffs against the defendant.
Regarding the counter-claim the learned trial Judge held at page 103 lines 16 page 104 lines 1-4 of the printed record as follows:
“On issue No.2, the counter claim. The defendant on his pleadings his testimony in Court and even on the visit to locus in quo has not laid claim to the plaintiffs plots. He clearly testified and tendered documents in proof of his six (6) plots Nos.235, 236, 237, 238, 238, 239 and 240 which were pulled out by PW5 the land officer of Jere Local Government who also showed the same to the Court on the visit to locus in quo. In view of this I have no doubt in my mind that the defendant had nothing to counter claim.
Out of abundance of caution, the learned Counsel for the
plaintiffs have submitted and quite rightly too in my view that the counter claim if at all there is any is incompetent in law as there is no evidence of the appropriate filing fee paid in respect of the same. Counter claim in law is a separate and independent claim which must be assessed and the appropriate filing fees paid failure to do same has divested me of the jurisdiction to entertain the counter claim.
In so holding I rely on the case of Ogliko Memorial Farm Ltd. vs. Nigerian Agricultural Co-operation Bank Plc (2008) 4 SCNJ page 436 at 448. In view of this Issue No.2 also be and is hereby resolved in favour of the plaintiffs and against the defendant.”
Aggrieved by the decision the appellant filed a Notice of Appeal on 31st October, 2014, followed by a brief on 23rd December, 2014. The respondents’ joint brief was filed on 27th July, 2015. Both briefs were adopted when the appeal came up for hearing on 18th January, 2016. The learned Counsel to the appellant formulated the following issues for determination:
“1. Whether the learned trial Judge was justified in his approach to the determination of the case presented
before it when he determined the vital issues in controversy between the parties, before considering the issues formulated by him for determination.
2. Whether the learned trial Judge was correct in law when he found that the identity of the land in dispute was proved with definite certainty.
3. Whether on a proper and dispassionate consideration of the evidence before the Court, the learned trial Judge was correct in law when he found that the respondents proved title to the land in dispute.
4. Whether the learned trial Judge was not legally bound to consider the final written address of appellants Counsel in his judgment and whether failure to do so has not occasioned a miscarriage of justice.
5. Whether the learned trial Judge had jurisdiction to order the appellant to pull down the structures he constructed on his land when there was no such relief claimed by the respondents.
Issue No.1 relates to ground 1, Issue No.2 relates to grounds 2, 3, 4, 5, 6 and 11 while Issue No.3 relates to grounds 7, 8, 12 and 13. Issue No.4 relates to ground 10 and finally Issue No.5 relates to ground 9 of the grounds of appeal contained in the
Notice of Appeal.
The respondent distilled a lone issue for determination:
Whether or not the respondents have proved their claim for the judgment of the Lower Court to be entered for them in terms of the reliefs sought (Distilled from grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12).
Order 18 Rule 3(1) of the Court of Appeal Rules 2011 empowers an appellant to formulate what he or she considers to be the issues arising in the appeal, taking into consideration the amended or additional grounds of appeal, if any. The duty of the respondents under Order 18 Rule 4(2) of the Rules supra is to answer all material points of substance contained in the Appellants brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed Order 18 Rule (4) of the Rules supra further enjoins that, All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded. Parties shall assume that the briefs have been read and considered in conjunction with the documents admitted
in evidence as exhibits during the proceedings in the Court below. This assumption extends to documents not admitted as exhibits but have been proposed to be relied upon at the hearing if they are relevant to the determination of the appeal.
Having examined the issues the appellant and the respondents consider have arisen in this appeal for determination I shall also considers whether the appellant had given sufficient or cogent reasons why this appeal ought to be allowed or whether the reasons given by the respondents are sufficient for the dismissal of this appeal. What is of importance is whether all the five issues set down for determination by this Court are capable of allowing or dismissing this appeal.
Order 6 Rules 3 and 6 of the Court of Appeal Rules 2011 provides as follows:
“3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application
by the respondent.
6. The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”
In Osims vs. Ibrahim (1988) 6 SCNJ 203 the Supreme Court defined the expression “reasonable cause of action” at page 209 as follows:
“But the phrase “reasonable cause of action” which is used in Order 18 Rule 19 of the English Rules of the Supreme Court (See Volume 1 of the Supreme Court Practice 1979) had been defined in Drummond-Jackson vs. British Medical Association & Ors. (1970) 1 W.L.R. 688 at page 696 C by Lord Pearson who observed:
“First there in paragraph (1)(a) of the rule the expression “reasonable cause of action”, to which Lindley M.R. called attention in Hubbuck & Sons Ltd. vs. Wilkinson, Heywood & Clark Limited, (1899) 1 Q.B. 86 pages 90-91. No exact paraphrase can be given, but I think “reasonable cause of action” means a cause of action with some chance of success, when (as required by paragraph (2) of the rule) only the allegations in the pleadings are considered. If
when those allegations are examined it is certain to fail, the statement of claim should be struck out.”
This definition was approved by this Court in Chief (Dr.) Irene Thomas & Ors. vs. The Most Reverend Timothy Omotayo Olufosoye (1986) 1 NWLR 669 at page 682 (per Obaseki, JSC).”
His Lordship proceeded to hold at page 210 as follows:
“As has been shown, the question whether or not a reasonable cause of action existed in the statement of claim filed by the respondent is a question of fact based on the circumstances of the transaction between the appellant and the respondent.”
Obaseki, JSC held at page 213 as follows:
“The law is settled that when an objection is raised that the statement of claim does not disclose a reasonable cause of action, it is the statement of claim that has to be examined and not the statement of defence to ascertain whether there is a reasonable cause of action before the Court. Unless there is a counter-claim, one does not expect to find a cause of action in a statement of defence. It is therefore premature to advert to the defence contained in the statement of defence as the
appellant would want us to do.”
Karibi-Whyte, JSC expressed the following opinion at page 217 as follows:
“The expression has been defined in Drummond-Jackson vs. British Medical Association (1970) 1 WLR 688 to mean a cause of action with some chance of success when only the allegations in the pleadings are considered. The question is not whether it discloses a good cause of action but whether it (i.e. the statement of claim,) discloses a reasonable one.”
In Uwazuruonye vs. The Governor of Imo State & Ors. (2012) 11 MJSC 46, Onnoghen, JSC held at page 65 to 66 as follows:
“It is settled law that a cause of action is the fact or combination of facts which gives rise to a right to sue or institute an action in a Court of law or tribunal. The term also includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to succeed/relief See Elabanjo vs. Dawodu (2006) 15 NWLR (Pt.1001); P.N. Udoh Trading Co. Ltd. vs. Abere (2001) 11 NWLR (Pt.723) 114 at 129.
On the other hand, a reasonable cause of action is a cause of action which,
when only the allegation in the statement of claim and, I may add, originating process, are considered having some chances of success. See Dantata vs. Mohammed (2007) 7 NWLR (Pt.664) 176 at 203.”
Where it is found that the statement of claim disclosed no reasonable cause of action, Onnoghen, JSC held at page 69 of the judgment as follows:
“In conclusion, I affirm the decision of the Lower Court that appellant has not disclosed a reasonable cause of action neither has he established any locus standi to initiate the action. The above being the case, it is clear that the action so constituted in the said circumstances is grossly incompetent and liable to be struck out. It is therefore my view that suit No.HOW/92/95 be and is hereby struck out for want of jurisdiction, with costs which I assess and fix at N100,000.00 against the appellant and in favour of the respondents. Appeal is dismissed.”
I shall examine the issues formulated by the appellant to see which has no chance of success in this appeal. When the issues arising in the appeal are read together with the grounds of appeal as well as amended or additional grounds of
appeal but have no chance of success it could be argued, by a respondent that the appeal ought to be dismissed under Order 18 Rule 4(2) of the Court of Appeal Rules supra. In my humble view the material points of substance or issues in the appellants brief have been set out in the respondents brief. It is whether taking into consideration the oral and documentary exhibits tendered by the parties in the Court below, which party was entitled to judgment.
ISSUE ONE:
Every Judge adopts a particular style of Judgment writing. As long as there is no miscarriage of justice in the procedure adopted by the learned trial Judge, the judgment may not be interfered with by an appellate Court.
Not every error committed by a trial Judge is capable of allowing the appeal. See Chiabee Bayol vs Iorkghir Ahembe (1999) 7 SCNJ 223 at 236; Ugo vs Obiekwe (1989) 2 SCNJ 95 at 103-104; Onifade Vs Olayiwole (1990) 11 SCNJ 10 at 22 and Ezekpelechi vs Ugorji (1991) 7 SCNJ (pt. 2) 196 at 258. Issue one has no merit regarding this appeal and is struck out.
ISSUE TWO:
The learned trial Judge held at page 103 lines 8 to 15 of the printed record as follows:
“The
defendant in his testimony in Court said he fenced his six (6) plots and that his plots are standing alone surround by access roads on all the four (4) sides. On the visit to locus in quo however it was clearly seen that all the plaintiffs six (6) plots and the defendants. Plots are in the defendants fence. It is therefore not true that the defendants six (6) plots were standing alone surrounded by access road on all the four (4) sides. In view of this and the above discussed reasons issue No.1 be and is hereby resolved in favour of the plaintiffs and against the defendant.
The “land in dispute” means the land being claimed by the claimant and the respondent or defendant. See Akintola vs. Solano (1980) 2 NWLR (Pt.24) 598 at 622. The identity of the land in dispute becomes an issue only if raised in the pleadings. See Fatuade vs. Owoamanam (1990) 3 SCNJ 200; Ezeudu vs. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 210 and Atolagbe vs. Shorun (1985) 4 SC 250 at 257-258.
Paragraphs 3-4 of the Statement of Claim of the respondents reads as follows:
“3. The plaintiffs aver that they are individual owners of six different
plots of land situated at Mashamari Ward, Jere Local Government, particularly described as plots No.224, 234, 228, 226, 232, 230 in BOSA 58.
4. The plaintiffs aver that the various plots of land are situated at the same location covered by various allocation letters and Certificate of Occupancy granted by Jere Local Government Area.”
Paragraphs 1-4 of the appellants Statement of Defence pleaded the following facts:
1. The defendant denies all the averments contained in paragraphs 3-20 of the statement of claim and further contend that the said averments are false, fabricated and calculated to misled the Court.
2. The defendant avers that the plaintiffs claim of individual ownership of the six plots of land situate at Mashamari Ward, Jere Local Government, more particularly described in paragraph 3 as plot No.224, 234, 228, 226, 232, 230 in BOSA 58 is false, unfounded and baseless.
3. The defendant equally will contend during the hearing that even though the said plots are situated at the same location at Mashamari Ward, Jere Local Government Area, they are already developed properties with people residing
therein for very long time.
4. The defendant will also contend during the hearing that the same plots of land mentioned supra could not have been lawfully allocated to any individual in 2005 as purported by the plaintiffs in their statement of claim and as such the said individuals could not have any valid title to pass to the plaintiffs herein as NEMODAT QUOD NOW HABEAT.
Paragraphs 1-4 of the Counter Claim averred the following facts:
“1. The defendant reproduces all the averments in paragraphs 1-20 of the statement of defence and adopt same herein.
2. The defendant plead that the said six plots, allocated to him, since 1987 have all along being under his exclusive possession, and he has been exercising all forms of rights thereon without let or hindrance.
3. The defendant pleads that the plaintiffs encroached on the land without his permission and consent and embarked on construction work thereon, thus altering the face of the land to the detriment of the defendant.
4. Wherefore the defendant counter claim as follows:
(a) A declaration of title to the plots of land described as plots No.235, 236, 237, 238,
239 and 240 on BOSA 58 situate and lying at Mashamari layout Maiduguri.
(b) An order directing the plaintiffs to remove all the construction work embarked upon by them on the land within 30 days of the Courts judgment.
(c) An order of perpetual injunction restraining the plaintiffs from further trespassing on the said plots of land.
(d) The sum of N350,000.00 being damages for trespass against the plaintiffs jointly and/or severally.
(e) Plus the costs of this suit.
Six plots situate and lying at Mashamari Layout in Maiduguri, Borno State is the lands in dispute. The appellant clearly showed in her pleadings that there is no dispute concerning their identity. The dispute or controversy revolves around the fence erected by the appellant which encompassed the plots of the respondents, namely, that he erected a fence around the six plots belonging to the respondents thereby denying them access to their various plots with the intention of taking possession and ownership. No one sets out to prove that which has not been expressly denied. See Olale vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at page 102. The learned trial Judge
made the following findings at page 101 lines 13 to page 102 lines 1-2 of the printed record:
“At the visit to locus in quo, the Court found the following facts:
1. The land officer of Jere Local Government Council, Jibrin Goni PW5 showed to the Court, the six (6) plots belonging to defendant Nos.235, 236, 237, 238, 239 and 240 are on the Eastern part.
2. The plaintiffs plots Nos.224, 226, 228, 230, 232 and 234 are on the Western site.
3. These twelve (12) plots i.e. six (6) of the plaintiffs on the Western side and the six (6) of the defendant on the Eastern side are in a single block backing each other.
4. It is these whole block of twelve (12) plots that the defendant fenced.
5. The defendant in his testimony both in Court and at the locus in quo testified only to his six (6) plots mentioned in No.1 above.
6. All the plaintiffs in their oral testimonies in Court and at the locus in quo identified their plots in No.2 above.
7. The defendant in his testimony in Court said his six (6) plots are boarded by four (4) access roads. This is so because he has included the plaintiffs plots which boarders his plots on the
West; the plots which he is not laying any claim to.”
These findings by the learned trial Judge are amply supported by the evidence on record. They support the respondents’ case that the appellant was the trespasser having fenced twelve plots, six of which included that of the respondents.
The law is well settled on the issue of the identity of the land in dispute. In Olusanmi vs. Oshashona (1992) 6 SCNJ (Pt.2) 282 the Supreme Court held at page 290 as follows:
“It was argued also in the appellant’s brief that the evidence as to boundaries of the land in dispute by the respondent and his witnesses contradicted that of the appellant and his witnesses. I do not see how this affects the discharge of the onus on the respondent to prove with certainty the land he lays claim to. It must be borne in mind that this is not a case of boundary dispute between two families or two persons. It is not respondent’s case that he has boundary with the appellant. Appellant presumably knows the land he was describing in his evidence; that description is not binding on the respondent. On the visit to the locus in quo, respondent took
the trial Court and the appellant to the land he claimed and which he and his witnesses described in evidence. Appellant did not dispute that that was the land in controversy between him and the respondent. I can find no substance in the appellant’s complaint that the land claimed by the respondent was not described with certainty at the trial. Question (1), is, therefore, resolved in respondent’s favour.”
Where the parties, their respective counsel and the Court visited and inspected the plots of land in dispute, none of the parties may be allowed to argue on appeal that the lands or plots had not been described with definitive certainly. Issue two is irrelevant to the success of this appeal.
ISSUE 4
At page 76 lines 9-14 of the printed record the learned counsel to the appellant formulated before the trial Court the following issues for determination in his written submission.
“1. Whether the plaintiffs have proved the identity of the land claimed by them with definitive certainty as required by law.
2. Whether the plaintiffs have proved their root of title as to be entitled to a declaration of title to the
land and
3. Whether the plaintiffs are entitled to the reliefs claimed.”
The respondents distilled the following issues for determination in the Court below at page 71 lines 10-15 of the printed record.
1. Whether the plaintiffs have proved their claim by credible evidence as required by law to warrant the Court granting them the reliefs contained in paragraph 21(1)-(4) of their joint statement of claim.
2. Whether the defendant’s counter-claim is competent and same has been proved by credible evidence.”
In the judgment his Lordships stated at page 100 lines 24 to pages 101 lines 1-8 of the printed record as follows:
“At the end of the case and in compliance with Courts directives both parties through their respective Counsel filed and adopted their written address as their final arguments in the matter and both Counsel formulated their issues for determination.
The issues for determination formulated by the learned Counsel for the plaintiffs is apt to deal with this matter; I would therefore adopt it as the issues for determination of this Court namely:
1. Whether the plaintiffs
have proved their claim by credible evidence as required by law to warrant the Court granting them the reliefs contained in paragraph 21(1)-(4) of their joint statement of claim.
2. Whether the defendants counter-claim is competent and same has been proved by credible evidence.”
Both parties adopted their respective issues formulated in their written addresses in the Court below for determination. The purpose of a written address was explained in Obodo vs. Olomu (1987) 6 SCNJ 72 by Belgore, JSC (as he then was) at page 79-80 as follows:
“…The addresses, I hold, are not directed at the Court alone. The purport of the address by a party is to let the Court and his adversary know what his summing up is on the facts and the law as revealed by the evidence before the Court. Therefore it is a wrong supposition for a trial Court to believe that an address at the close of a party’s case is meant for it alone; the other side, throughout the trial of a case must not be blinded from what his adversary relies upon…”
Where both counsel submitted written addresses and the issues formulated are identical, where the
learned trial Judge preferred those formulated by the respondent as in this appeal, which would determine the controversy or dispute, it cannot be heard to be argued on appeal that there had occasioned a miscarriage of justice capable of allowing the appeal. Moreover, no matter how brilliant a written or oral address by Counsel may be attractive, that cannot take the place of solid evidence before the Court. See Zein vs Geidam (2004) All FWLR (pt 237) 457 at 480 par. “B”; Oduola vs. Coker (1981) 5 SC 197; Yeye vs. Olubode (1974) 1 All NLR (pt 2) 118 at 123 and Raynolds Construction Co. (Nig.) Ltd. vs. Raynolds Brezuna Brown & Anor. (1993) 6 NWLR (Pt.297) 122 at 128-129. Issue 4 is irrelevant to the success of this appeal and is accordingly dismissed.
I shall consider issues 3 and 5 together.
The gist of issues 3 and 5 is whether there was evidence to support the judgment of the learned trial Judge in favour of the respondents. Secondly, had the learned trial Judge had the jurisdiction to order that the wall erected by the appellant should be pulled down
Paragraphs 15-20 of the Statement of Claim pleaded the following facts:
“15. The plaintiffs aver that the defendant without the consent and authority encroached and trespassed unto their various plots by erecting structure i.e. fence was around the six plots of land thus denying them access to their various plots with the intention of taking possession thereby denying them the right of ownership and possession.
16. The plaintiffs aver that sequel to the above, reports were made to the Jere Local Government, the police, state land and survey to intervene in the matter by preventing the defendant from continuing with his illegal acts, but all was in vein as he fail to abide by all the instruction given to that effect.
17. The plaintiffs aver that the defendant had bragged that no person or authority can stop him from his act nor can he be made to undo what he has done, and that we can take the matter anywhere we so wish, and hence this suit.
18. The plaintiffs aver that the defendant has presently threatened to pull down the various structure they put thereon as soon as he finish on the construction of the wall.
19. The plaintiffs aver that the defendant intends to put a different structure on the
various plots of land as soon as he demolish our own, which will change the feature, dimension and face of our plots of land and would cause us greater hardship in putting them aright.
20. The plaintiffs aver that presently they had expended combined expenses of over N35 million on the various plots of land.
The appellant pleaded from paragraphs 15-20 of the Statement of Defence as follows:
15. The defendant pleads that he came back from a journey only to discover that some people trespassed unto the said land and started digging and laying cement blocks thereon, but no house was built as claimed.
16. The defendant avers further that he had no option but to make a formal report at the Ministry of Land and Survey, Borno State, who knew about the allocation of the land to the defendant.
17. The officials of the Ministry conducted their investigations and discovered that those who trespassed on his land had no right to do so consequent upon which a stop order was issued and the wall erected by them were marked with red paint.
18. The defendant pleads that he later discovered that the plaintiffs were the persons who
encroached on his land and started constructing block work on his land.
19. The defendant avers that rather than going to meet those who sold non-existent empty plots of land to the plaintiffs and collect their money back, the plaintiffs remained adamant and persisted in their trespass to the defendant land.
20. The defendant will contend at the trial that:
(a) As at 2005 when the Jere Local Government purportedly allocated land to the plaintiffs overlord, there was no empty plot of land in the area that could be granted to any person.
(b) As at the time the Plaintiffs purported to have bought the various plot of land mentioned in their statement of claim, those plots were no longer empty plots but built up properties belonging to different persons over several years.
(c) The various plots mentioned in the plaintiffs statement of claim are separate and distinct from the defendants land and separated by access road, both on the site plan and on the ground.
(d) The defendant has already fenced his own land without any let or hindrance and his plots of land is bounded on all side by access road.
(e) The letters of
allocation and the certificates of occupancy presented by the plaintiffs does not relate to and has no connection with the land granted to the defendant, and over which he has been exercising full rights thereon.
(f) Jere Local Government has no power to allocate any land to the plaintiffs or their overlord in Mashamari Ward where the land being claimed is situate, because it is within 22 kilomete radius to Shehu Palace.
A composite reading of the pleadings will show that the appellant evaded the major issue in controversy raised in paragraph 15 of the respondents statement of claim. A combined reading of the Statement of Claim and Defence will show that while the appellant traced her root of title to the Ministry of Land and Survey, Borno State and Maiduguri Metropolitan Council, the respondents traced their root of title to Jere Local Government Council in Borno State. Both parties relied on oral and documentary evidence. The task before the learned trial Judge was made easy. The learned trial Judge was to examine the oral evidence as supported by documentary evidence to resolve the controversy. I have shown that his Lordship resolved the
dispute in favour of the respondents. See Fashanu vs. Adekoya (1974) 6 SC 83; Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253; Oscar Reynard vs. William Allan (1934) 2 WACA 52 at 53 and Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473.
In view of these findings the learned trial Judge was right to have made consequential orders that the fence erected by the appellant which included the respondents’ six plots of land be pulled down.
There is no merit in this appeal which is hereby dismissed with N50,000.00 (Fifty Thousand Naira) cost assessed to each respondent.
ADZIRA GANA MSHELIA, J.C.A.: I was privilege to read in draft the judgment just delivered by my learned brother, Tur, J.C.A. I agree with the reasoning and conclusion arrived thereat that the appeal ought to be dismissed. My learned brother has considered all the issues raised for determination in this appeal.
I have nothing useful to add but to adopt same as mine. I too dismiss the appeal and abide by the consequential order relating to cost.
ADAMU JAURO, J.C.A.: I have had the
opportunity of reading in advance the lead judgment just delivered by my learned brother, JOSEPH TINE TUR, J.C.A. I am in complete agreement with the reasoning and conclusions contained in the said judgment, to the effect that the appeal is lacking in merit. I adopt the said judgment as mine and join my brother in dismissing the appeal.
I abide by consequential orders made in the lead judgment, including that on costs.
Appearances
P.A. Bello, Esq. For Appellant
AND
A. A. Sangei, Esq. with, B. S. Ahmad, Esq. N. S. Abimaje, Esq. and A. A. Sadiq, Esq. For Respondent
