THE COMMISSIONER OF POLICE, BORNO STATE & ANOR v. IBRAHIM ABBA UMAR & ORS
(2016)LCN/8555(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of April, 2016
CA/J/188/2005
RATIO
PROCEDURE: WHAT CONSTITUTES PLEADINGS
Pleadings constitute a notice of what the parties intend to canvass at the trial. See Uwegba vs. Attorney-General of Bendel State (1986) NWLR (Pt.16) 303 at 317 and Obmiami Brick and Stones Nig. Ltd. vs. ACB Ltd. (1992) 3 SCNJ 1 at 35. PER JOSEPH TINE TUR, J.C.A.
LAND LAW: MEANING OF LAND IN DISPUTE
The land in dispute means the land being claimed by a party and disputed by his opponent or adversary. See Akintola vs. Solano (1986) 2 NWLR (Pt.24) 598 at 622. Such land may be surrounded by other lands not in dispute. See Kuma vs. Kuma (1936) 5 WACA 4 and Ajadi vs. Olanrewaju (1969) 1 All NLR 382 at 386. PER JOSEPH TINE TUR, J.C.A.
LAND LAW: WHAT IS PUT IN ISSUE IN A CASE OF TRESPASS
Title is put in issue where a claimant alleges that the party in possession is a trespasser. See Kponuglo vs. Kodadja (1931) 2 WACA 24; Amakor vs. Obiefuna (1974) 1 All NLR 119; Bamishebe vs. Faleye (1987) 4 SCNJ 1 at 4-5 and Agboola vs. UBN & 2 Ors. (2011) 2 & 3 MJSC (Pt.2) 150 at 186 paragraphs B-C. PER JOSEPH TINE TUR, J.C.A.
INTERPRETATION: THE GENERAL RULE OF LITERAL CONSTRUCTION
In Maxwell On the Interpretation of Statutes, 12th edition, page 33 appears the following statement of the law:
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. We are not entitled, said Lord Lorebun, L.C., to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.
Again in Udoh vs. Orthopaedic Hospital Management Board (1993) 7 SCNJ (Pt.2) 436 Karibi-Whyte, JSC held at page 443 as follows:
It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. Expression unius est exclusion alterius. See A-G. of Bendel State vs. Aideyan (1989) 4 NWLR 646. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue See Ogbuinyinya vs. Okudo (1979) 6-9 SC 32; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280. PER JOSEPH TINE TUR, J.C.A.
JUSTICES:
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
1. THE COMMISSIONER OF POLICE, BORNO STATE
2. THE NIGERIA POLICE FORCE – Appellant(s)
AND
1. IBRAHIM ABBA UMAR
(Substituted the deceased original 1st Respondent, Alhaji Goni Kagu)
2. BUNU WASILI
3. MUSTAFA BUKAR – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The respondents instituted this action against the appellants before the High Court of Justice of Borno State holden at Maiduguri on 2nd July, 1997. The suit was contested on pleadings.
Pleadings constitute a notice of what the parties intend to canvass at the trial. See Uwegba vs. Attorney-General of Bendel State (1986) NWLR (Pt.16) 303 at 317 and Obmiami Brick and Stones Nig. Ltd. vs. ACB Ltd. (1992) 3 SCNJ 1 at 35. At the close and exchange of pleadings, the respondents traced their title to the disputed land to Goni Aji his grand father who was first to clear the land and settle on it for about 20 years before his death around 1905. Thereafter Abdul Kudus, their father inherited the farmland and continued in occupation undisturbed till his death in 1969. The respondents and Baba Gana inherited the land and continued possession till Baba Gana died in 1978. The respondents continued in possession till they excised part of the land and gave to Police Officers??? wives to establish the Mammy Market now the subject of dispute. Police
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Officers had been paying rent to the respondents until this dispute arose with the appellants compulsory annexation of the land on which Mammy Market is situate.
Paragraphs 1 and 2 of the Statement of Claim pleaded as follows:
“1. The plaintiffs are brothers and are the children of Abdul Kudus who died in 1969.
2. The land which is the subject-matter of this suit is situated at Wulari Ward within Maiduguri Metropolitan area and the said piece of land is now generally referred to as Mammy Market measuring 82 metres and 92 metres by 30 metres, by 35 metres.
Paragraphs 1-2 and 9 of the statement of defence pleaded as follows:
1. The defendants deny paragraph 1 of the statement of claim and put the plaintiffs to the strictest proof thereof.
2. The defendants partly admitted paragraph 2 of the statement claim.
9. That the land in dispute form part and parcel of the police land which was acquired for the both (sic) Residential and Recreational Certificate (sic) for the Police.
What is admitted needs no further proof at the trial. See Andony vs. Ayi II & Ors. (2004)
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All FWLR (Pt.227) 444 at 482 and Ebueku vs. Amola (1988) 3 SCNJ (Pt.2) 207 at 224.
The land in dispute is well known to the parties. It is simply described as Mammy Market in the pleadings. The land in dispute means the land being claimed by a party and disputed by his opponent or adversary. See Akintola vs. Solano (1986) 2 NWLR (Pt.24) 598 at 622. Such land may be surrounded by other lands not in dispute. See Kuma vs. Kuma (1936) 5 WACA 4 and Ajadi vs. Olanrewaju (1969) 1 All NLR 382 at 386.
Paragraphs 7-16 of the statement of claim pleaded the facts that led to the dispute as follows:
7. In 1972, the Federal Government of Nigeria acquired a large piece of land adjacent to the plaintiffs farmland and constructed a barrack for the mounted troop unit of the Nigeria Police.
8. As a result of the movement of policemen to the Barrack, the wives and relations of the policemen approached the plaintiffs requesting for the plaintiffs consent to use the farmland for petty trading including the sale of food items and provisions.
9. The plaintiffs demarcated the piece of land into portions and let out each
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part to mostly the wives and relations of the policemen living near the area to use the place for their petty trade and each of them agreed and paid rents for the use and occupation of the respective portions of the land occupied by them.
10. In 1980, the plaintiffs as a preliminary step towards obtaining a Statutory Right of Occupancy over the land which is the subject-matter of this action obtaining from the Maiduguri Metropolitan Council a Certificate of Occupancy No.003071 dated 22nd October, 1980 in respect of the land in question in the name of the 1st plaintiff. The Maiduguri Metropolitan Council had been the body responsible for the control and management of most areas within Maiduguri including Wulari Ward where the land is situate.
11. In 1992, the plaintiffs started receiving complaints from the neighbours that the sale and consumption of alcohol on the premises which the plaintiffs had let out and which is the subject-matter of this action was causing nuisance to the neighbourhood and to the users of a nearby mosque. The plaintiffs thereafter, gave the tenants notice to quit the premises.
12. The notice to quit given to the tenants
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prompted the police whose wives and relations were in occupation of the premises as tenants to arrest the plaintiffs caretaker, one Mallam Kura. The said Mallam Kura was physically assaulted by the police and detained. The police also seized from him the receipt booklets used by him for acknowledging rents paid by tenants on the premises, and he was warned on his discharge from further collecting rents from the tenants.
13. On or about the 7th day of June, 1993, Policemen under the command of the defendants started collecting rent from the tenants already occupying the premises and evicted by force, some of the tenants and brought in other tenants whilst the 1st plaintiff who was managing the land in question was away in Saudi Arabia.
14. Several protests were made by the 2nd and 3rd plaintiffs to the defendants without success and by a letter dated 31st December, 1994 the 1st plaintiff petitioned the 1st defendant complaining about the trespass by the police on the land in question but the plaintiffs received no reply. A copy of the said letter was later on forwarded to the Inspector-General of Police.
15. The defendants have since
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fenced the land in question with wire and have continued since June, 1993, to be receiving rents of over N20,000.00 per mense from the numerous traders using the land and premises now referred to as Wulari Mammy Market.
16. The plaintiffs aver that the conduct of the defendants, its servants and agents are sufficiently outrageous and discloses a flagrant disregard of the law by a body established by the Government of Nigeria to preserve law and order and for the protection of life and property in the society and thus merit aggravated damages.
And the plaintiffs claims:
(1) A declaration that the plaintiffs are entitled to the right interest and title to the land situate at Wulari Ward in Maiduguri Metropolitan Area which land is now generally referred to as Mammy Market measuring 82 metres and 92 metres by 30 metres by 35 metres which land is delineated and verged red in the Site Location Plan filed along with and forming part of the Statement of claim.
(2) A declaration that the defendants entry on the said land on or about the 7th day of June, 1993 and their remaining in possession thereof since then is wrongful and constitutes
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the tort of trespass to land.
(3) An injunction restraining the defendants by themselves, their servants or agents or howsoever otherwise from further entry upon the said land and from remaining on the land or in any way interfering with the plaintiffs title and possession of the same.
(4) Mesne profits at the rate of N20,000.00 per mensem from June 1993 until judgment.
Alternatively: The plaintiffs claim the sum of N1,000,000.00 damages on the footing of aggravated damages.
The appellants joined issue in paragraphs 6-11 of their statement of defence as follows:
6. The defendants deny paragraphs 10, 11 and 12 of the statement of claim and put the plaintiffs to the strictest proof thereof.
7. The defendants in further answer to paragraphs 10, 11 and 12 avers: that the piece of land is situated in the Urban area of the State and can not be controlled or managed by M.M.C. the Urban Area Declaration Edict is hereby pleaded.
8. That land under the Urban Areas are subject of statutory certificate of occupancy and therefore M.M.C. cannot give valid title to the plaintiff or any other parties or person.
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9. That the land in dispute form part and parcel of the police land which was acquired for both the residential and recreational certificate for the police.
10. The defendants deny paragraphs 13, 14 and 15 of the statement of claim and avers that that is not the duty of the plaintiffs to direct or control the businesses of the defendants, and has no businesses whatsoever with the defendants.
11. WHEREOF the defendants deny paragraph 16 of the statement of claim and state that the plaintiffs are not entitled to the reliefs sought and will urge the Court to dismiss the suit with substantial cost.
The land acquired by the Federal Government in 1972 for the construction of a Barrack for the Mounted Troops of the Police is pleaded in paragraph 7 of the statement of claim to be adjacent to the appellants farmland. To be adjacent simply means Lying near or close to, but not necessarily touching. See Blacks Law Dictionary, 9th edition, page 46.
Paragraph 16(2) of the statement of claim shows that the respondents founded the action against the appellants in the tort of trespass to
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land. In 3 William Blackstone, Commentaries on the Laws of England, 1769, pages 209 to 210 appears the following passage:—————-p.1643 of Blacks law, 9th edition
The onus was on the respondents in the Lower Court to show by cogent evidence the demarcation they created between their inherited land and that on which they granted the wives of the policemen to establish the Mammy Market. They had the onus of establishing the features separating their farmland and that of Mammy Market. The location, boundaries and features separating their land with Mammy Market became very essential in establishing the fact that the appellants had crossed the boundaries into their farmlands. See Anyanwu vs. Mbara (1992) 6 SCNJ (Pt.1) 22; Emeregie vs. Idugiem Wanye (1985) 6 SC 150. A grantor of land is to establish the location, extent and features of the land in dispute. See Ojibah vs. Ojibah (1991) 6 SCNJ 156 at 167 and Elias vs. Suleimon (1973) 1 All NLR (Pt.11) 282 at 295.
Paragraph 16(1) of the statement of claim also sought declaration of title to the land upon which Mammy Market is situate. Title is put in issue where a
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claimant alleges that the party in possession is a trespasser. See Kponuglo vs. Kodadja (1931) 2 WACA 24; Amakor vs. Obiefuna (1974) 1 All NLR 119; Bamishebe vs. Faleye (1987) 4 SCNJ 1 at 4-5 and Agboola vs. UBN & 2 Ors. (2011) 2 & 3 MJSC (Pt.2) 150 at 186 paragraphs B-C.
I have referred to these authorities to draw attention to the facts the respondents had to prove in the Lower Court to be entitled to judgment.
The parties adduced evidence in the Lower Court. The learned Counsel submitted written addresses. I.S. Bdliya, J., (as he then was) delivered a decision on 30th June, 2004 holding at page 40 lines 17 to page 43 lines 1-8 of the printed record as follows:
The evidence of PW1, and 3 in my view proved that from 1905 up to 1992 PW1 was in possession of the land. Goni Aji cleared the land and he farmed it for 20 years. He died in 1905. Abdul Kudus inherited it. He died in 1969. Baba Gana inherited it. He died in 1978. Plaintiffs inherited it and put Alh. Kura as caretaker. In 1992 the police entered the land. There is no evidence that the land was acquired and allocated to the police. Since the
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plaintiffs and their father and grand father were in possession of the land since 1905, one can have title over that land other than of that land was acquired and allocated to him by the appropriate authority. By Section 34(1) of the Land Use Act, the plaintiffs are deemed titled holders. Unless and until such title have been revoked by the Governor of the State and allocated to another, the plaintiffs remained the title holders. DW1 Inspector Wadzani Zajiri testified that the police owned the land. There is no evidence to that effect. The fact that wives of policemen were on the land from 1972 to 1997 does not make them title holders. At any rate the evidence of PW1 and 3 show the women were tenants paying rents to the plaintiffs up to 1992.
On the identity of the land, Umar, Esq. was right when he submitted that by paragraph 2 of the statement of defence the defendants admitted the description of the land in paragraph 2 of statement of claim. What is admitted required no further proof.
As pointed out in Onuoha Ezeokili (2002) 5 NWLR, a claim for a declaration of title to land can be established on balance of probabilities or in preponderance of
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evidence. The evidence before the Court in my view, is sufficient to prove the claim of the plaintiffs. The evidence of the plaintiffs are more probable than that of the defendant. The plaintiffs have been in possession of the land from 1905 up to 1952. The police entered the land in 1992 without due process of the law. No evidence that that land was acquired and allocated to the police. By the coming in force of the Land Use Act in 1979, any person having title or being in possession of parcel of land, is deemed title holder vide the Act until such title been revoked by the appropriate authority.
Since the plaintiffs have been in possession since 1905 it is evidence that the land belongs to them. I am fortified in holding so by the decision in Onuoha vs. Ezeokili (2002) 5 NWLR (Pt.760) page 135 where the Supreme Court held that evidence of possession is one of the five ways title to land can be proved. In the result the plaintiffs case succeeds and I make the following order:
(a) A declaration that the plaintiffs are entitled to the right or interest and title to the land situate at Wulari Ward, Maiduguri in the area generally known as
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Mammy Market measuring 82m by 92 by 30 and by 35m which is delineated in the Site Plan attached to the statement of claim dated 24th October, 1997.
(b) A declaration that the defendants entering on the said land on or about 7th June, 1993 and their remaining thereon is wrongful and constitute the tort of trespass.
(c) An injunction restraining the defendants, by themselves, agents, or servants or howsoever, from further entry upon the land and remaining thereon or in any way interfering with the plaintiffs title and possession.
(d) The evidence is that from 1993 to 1997 and up to date, the defendants have been on the land. I have held that this entry and occupation are wrongful act which is trespass. The evidence of PW1, 2 and 3 shows rents were collected. No evidence of amount actually collected. Plaintiffs are entitled to mense profit of N100,000.00 from June 1993 to date of judgment.
Since the mense claim succeeded, the alternative claim no longer relevant.
The findings of the learned trial Judge revealed that the ancestors of the respondents had acquired the land including that on which Mammy Market is
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situate and settled there until the appellants trespassed unto it on 7th June, 1993 as pleaded in paragraph 13 of the statement of claim which the appellants never controverted.
The appellants filed an Amended Joint Notice of Appeal on 20th November, 2005 with a deeming order dated 16th February, 2016 containing two grounds. An Amended brief was also filed on 20th November, 2015 with a deeming order on 16th February, 2016. Two issues were formulated by the learned Counsel representing the appellants to wit:
1. Whether or not the Borno State High Court of Justice had the jurisdiction to entertain this suit ab initio having regards to the fact that both appellants are Federal Government Agencies.
2. Whether or not, from the totality of the evidence before the trial Court, the Judge was right to come to the conclusion that judgment should be entered against the appellants in favour of the respondents in this suit.
The respondents also filed an Amended Joint Brief of Argument on 20th November, 2015 which was deemed proper on 16th February, 2016. They adopted the two issues formulated by the learned Counsel to the appellants for
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determination. When the appeal came for hearing on 23rd March, 2016 learned Counsel adopted their respective briefs of argument.
ISSUES ONE AND TWO:
The crux of the argument in issue one is that since the appellants were agencies of the Federal Government of Nigeria, the learned trial Judge had no jurisdiction to entertain the claim, citing Section 251(1)(p)(q) and (r) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and National Electric Power Authority vs. B. Edegbero & Ors. (2002) 18 NWLR (Pt.798) 79 at 97. The learned Counsel drew attention to the location of the land in dispute to urge this Court to resolve two issues in favour of the appellants. On issue two, learned Counsel argued that the evidence was not adequately evaluated by the learned trial Judge, citing Lawal vs. Dawodu (1972) 1 All NLR (Pt.2) 270 at 286 and Adeleke & Ors. vs. Iyanda & Ors. (2001) Vol.28, WRN 1-181 at page 15.
The learned Counsel representing the respondents referred to the remedies claimed in the statement of claim and decided authorities to show that jurisdiction is to be determined by the remedies sought by a claimant in the
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statement of claim, citing Orthopaedic Hospital Management Board vs. Garba (2002) 4 NWLR (Pt.788) 532 at 563; Utih vs. Onovivwe (1991) 1 NWLR (Pt.166) 172; KLM Royal Dutch Airlines vs. Mrs. Annah Kumzhi (2003) FWLR (Pt.184) 317 at 342. Learned Counsel contended that jurisdiction is also to be determined by the law at the time the suit was instituted: Uwaifo vs. Attorney-General of Bendel State (1987) 7 SC 124; Section 6(1) of the Interpretation Act; Orthopaedic Hospital Management Board vs. Mallam Umaru Garba & Ors. (2002) 11 NSCQR 141 at 153; Onuorah vs. Kaduna Refining and Petrochemical Co. Ltd. (2005) 21 NSCQR 130 at 145 and Section 230(1)(q), (r) and (s) of the Constitution of the Federal Republic of Nigeria, 1979. That the claims are founded in the tort of trespass committed by the appellants, citing Trade Bank Plc vs. Benilux (Nig.) Ltd. (2003) 14 NSCQR (Pt.1) 304 at 318.
The learned Counsel further referred to Sections 39 and 41 of the Land Use Act, 1976 as showing that only the High Court of Borno State had jurisdiction to entertain claims of this nature. Learned Counsel urged the Court to hold that the respondents proved their title to the
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land in dispute, citing Achakpa & Anor. vs. Josiah Ndura (2001) 14 NWLR (Pt.734) 623 at 653 and a host of other authorities.
Learned Counsel further submitted that the appellants were unable to prove the acquisition of the land by the Federal Government of Nigeria, citing Section 34(5) of the Land Tenure Law Cap.59, Laws of Northern Nigeria, 1963 and Section 28(6) of the Land Use Act, 1978 as to how revocation of a customary right of occupancy may occur. Learned Counsel urged this Court to hold that the respondents had proved their entitlement to the land in dispute. The two issues should be resolved against the appellants and the appeal should be dismissed.
I shall commence my opinion by referring to the submission of Babagana Bulawa, Esq., Zonal Officer in the Federal Ministry of Justice made a very startling submission at paragraph 5.13 page 9 as follows:
It is our further submission that it is the requirement of the law that the plaintiffs must prove to the satisfaction of the Court that he has a better title to the land in dispute than the defendants. But in this case, the plaintiffs woefully failed to prove a better title
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than the defendants having relied on long possession over a period of time. They forgot that their title to the land in dispute, has ceased since the time the Police seized the land and fenced it with barbwire and made it a Mammy Market for the Police Barracks. See the case of Adeleke vs. Iyanda at page 18 (supra).
The submission runs contrary to the provisions of Sections 43-44 of the Constitution of the Federal Republic of Nigeria, 1999 as amended which provides as follows:
43. Subject to the provisions of this Constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria.
44(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things:-
(a) Requires the prompt payment of compensation therefore and
(b) Gives to any person claiming such compensation a right of access for the determination of his interest in the property and the
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amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria.
(2) Nothing in Subsection (1) of this section shall be construed as affecting any general law.
(a) For the imposition or enforcement of any tax, rate or duty;
(b) For the imposition of penalties or forfeiture for breach of any law, whether under civil process or after conviction for an offence;
(c) Relating to leases, tenancies, mortgages, charges, bills of sale or any other rights or obligations arising out of contracts.
(d) Relating to the vesting and administration of property of persons adjudged or otherwise declared bankrupt or insolvent, of persons of unsound mind or deceased persons, and of corporate or unincorporate bodies in the course of being wound-up;
(e) Relating to the execution of judgments or orders of Court;
(f) Providing for the taking of possession of property that is in a dangerous state or is injurious to the health of human beings, plants or animals;
(g) Relating to enemy property;
(h) Relating to trusts and trustees;
(i) Relating to limitation of actions;
(j) Relating
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to property vested in bodies corporate directly established by any law in force in Nigeria;
(k) Relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry;
(l) Providing for the carrying out of work on land for the purpose of soil-conservation; or
(m) Subject to prompt payment of compensation for damage to buildings, economic trees or crops, providing for any authority or person to enter, survey or dig any land, or to lay, install or erect poles, cables, wires, pipes, or other conductors or structures on any land, in order to provide or maintain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public facilities or public utilities.
(3) Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.
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The appellants did not plead nor prove the existence of any general law under Section 44(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended which empowers them to compulsorily acquire the title and interest of the respondents without showing that the respondents were paid adequate compensation as provided under Section 43 and 44(1) of the Constitution (supra). The power to compulsorily acquire property in the possession of a citizen of this great country without payment of compensation does not reside in the appellants.
The submission is a tacit acknowledgment by learned Counsel that the appellants trespassed and compulsorily acquired the respondents land without any evidence of the payment of compensation. The appellants are bound by the provisions of Section 43 and 44 by virtue of Sections 1(1) and (3) of the same Constitution which provides as follows:
1(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
(2)
(3) If any other law is inconsistent with the provisions of this
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Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
The learned Counsel’s argument has no support under the Constitution (supra).
The argument of the learned Counsel that it is the Federal High Court that has jurisdiction to entertain the suit but not the State High Court will lead to an examination and comparison of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended with regard to the jurisdiction of the Federal and State High Courts. I shall begin by reproducing Section 251-252 of the Constitution (supra) in relation to the jurisdiction and powers of the Federal High Court to adjudicate in causes and matters to wit:
251(1) Notwithstanding anything to the contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ
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thereof or a person suing or being sued on behalf of the said Government is a party;
(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;
(e) arising from the operation of the Companies and Allied Matters Act or any
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other enactment replacing the Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;
(f) any Federal enactment relating to copyright, patent, designs, trade marks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalization and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft.
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and
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minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) weights and measures:
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction, civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly:
Provided that nothing in the provisions of Paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.
(2) The Federal High Court shall have and exercise jurisdiction and powers in respect of
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treason, treasonable felony and allied offences.
(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by Subsection (1) of this section.
252(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.
(2) Notwithstanding Subsection (1) of this Section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court more effectively to exercise its jurisdiction.
272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine
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any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.
273. For the purpose of exercising any jurisdiction conferred upon it under this Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that Court.
The jurisdiction of the Federal High Court is two-fold, namely, as conferred under the Constitution and secondly by an Act of the National Assembly. Sections 272-273 of the Constitution (supra) confers jurisdiction and powers on a High Court of a State to entertain certain causes and matters.
Declaration of title to land or trespass are conspicuously omitted from the provisions relating to the Federal High Court and the High Court of a State which I have reproduced.
In Maxwell On
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the Interpretation of Statutes, 12th edition, page 33 appears the following statement of the law:
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express. Lord Mersey said: It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. We are not entitled, said Lord Lorebun, L.C., to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.
Again in Udoh vs. Orthopaedic Hospital Management Board (1993) 7 SCNJ (Pt.2) 436 Karibi-Whyte, JSC held at page 443 as follows:
It is a well settled principle of construction of statutes that where a section names
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specific things among many other possible alternatives, the intention is that those not named are not intended to be included. Expression unius est exclusion alterius. See A-G. of Bendel State vs. Aideyan (1989) 4 NWLR 646. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue See Ogbuinyinya vs. Okudo (1979) 6-9 SC 32; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280.
Sections 34, 35, 39 and 41 of the Land Use Act No.6 of 1978 provides as follows:
34(1) The following provisions of this sections shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
(2) Where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.
(3) In respect of land to which Subsection (2) of this Section applies, there shall be
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issued by the Governor on application to him in the prescribed form a certificate of occupancy if the Governor is satisfied that the land was, immediately before the commencement of this Act, vested in that person.
(4) Where the land to which Subsection (2) of this section applies was subject to any mortgage, legal or equitable, or any encumbrance or interest valid in law such land shall continue to be so subject and the certificate of occupancy issued, shall indicate that the land is so subject, unless the continued operation of the encumbrance or interest would in the opinion of the Governor be inconsistent with the provisions, or general intendment of this Act.
(5) Where on the commencement of this Act, the land is undeveloped, then
(a) one plot or portion of the land not exceeding half hectare in area shall subject to Subsection (6) below, continue to be held by the person in whom the land was so vested as if the holder of the land was the holder of a statutory right of occupancy granted by the Governor in respect of the plot or portion as aforesaid under this Act; and
(b) all the rights formerly vested in the holder in respect of
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the excess of the land shall on the commencement of this Act be extinguished and the excess of the land shall be taken over by the Governor and administered as provided in this Act.
(9) In relation to land to which Subsection (5)(a) or (6)(a) applies there shall be issued by the Governor on application therefore in the prescribed form a certificate of occupancy if the Governor is satisfied that the land was immediately before the commencement of this Act vested in that person.
35(1) Section 34 of this Section shall have effect notwithstanding that the land in question was held under a leasehold, whether customary or otherwise, and formed part of an estate laid out by any person, group or family in whom the leasehold interest or reversion in respect of the land was vested immediately before the commencement of the Decree, so however that if there has been improvements on the land effected by the person, group or family in whom the leasehold interest or reversion was vested as aforesaid the Military Governor shall, in respect of the improvements, pay to that person, group or family compensation computed as specified in Section 29
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of this Decree.
(2) There shall be deducted from the compensation payable under Subsection (1) of this section any levy by way of development or similar charges paid in respect of the improvements on the land by the lessee to the person, group or family in whom the leasehold interest or reversion was vested and the amount to be deducted shall be determined by the Military Governor taking into consideration all the circumstances of the case.
39(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings:
(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a statutory right of occupancy;
(b) proceedings to determine any question as to the person’s entitlement to compensation payable for improvements on land under this Act.
(2) All laws, including rules of Court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this
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section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this section.
41. An Area Court or Customary Court or other Court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Decree; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of Courts regulating practice and procedure of such Courts shall have effect with such modifications as would enable effect to be given to this section.
Since the coming into effect of the Land Use Act No.6 of 1978, proceedings for declaration of title or trespass to land coupled with injunction and damages are to be instituted either in the High Court of Justice or an Area or Customary Court or its equivalent in the State where the land is situate. This is dependent on whether the land is covered by a statutory right of occupancy granted or deemed by the Governor to be so granted by him under the Act, or it is
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subject of a Customary Right of Occupancy granted by a Local Government under the Act.
A High Court of a State has concurrent jurisdiction in proceedings pertaining to land causes and matters in an urban or a non-urban area within the State. See Sadikwu vs. Dalori (1996) 4 SCNJ 209 and Wuroma vs. Gashua (2002) FWLR (Pt.8) 1030. The location of the land in dispute determines which Court has jurisdiction to determine the claim. See Dweye vs. Iyomahan (1983) 2 SCNLR 135 at 138. Whether appellants are Federal Agencies or not, the proper Court to have adjudicated in this dispute is the High Court of Justice, Borno State.
I resolve issue one in favour of the respondents.
ISSUE TWO:
In resolving issue two, I shall draw attention to paragraphs 4-6 of the statement of claim which reads as follows:
4. The original owner of the piece of land was one Goni Aji, the grandfather of the plaintiffs and he was the first to clear and use the land as a farmland for about 20 years before he died in 1905.
5. After the death of Goni Aji, the plaintiffs father, Abdul Kudus inherited the said farmland and throughout his lifetime was in an
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undisturbed possession of the land and he farmed on it, with the plaintiffs always accompanying him to the said farmland when they were young.
6. On the death of Abdul Kudus, the plaintiffs father in 1969, the said farmland was inherited by the plaintiffs and another brother, Baba Gana Ahmed who died in 1978. The plaintiffs continued thereafter to farm on the land without anyone disturbing their possession.
The appellants pleaded in paragraphs 3-5 of the statement of defence as follows:
3. That the defendants deny paragraph 3 of the statement of claim and avers that the site location plan filed along with the statement of claim was not certified by a Surveyor General of Borno State or any other Survey-General and therefore not tenable in law.
4. The defendants deny paragraphs 4, 5 and 6 of the plaintiffs statement of claim and put the plaintiffs to the strictest proof thereof.
5. The defendants deny paragraphs 7, 8 and 9 of the plaintiffs statement of claim and aver the plaintiffs has at no given time assigned or got title of the land in dispute to show that the piece of land in dispute belongs to the
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plaintiffs.
The respondents pleadings suggests that the land on which Mammy Market is situate and is in dispute was virgin land before their fore father deforested same and went into occupation. In Onadehin & Ors. vs. Sonuga & Ors. (1974) 1 All NLR (Pt.2) 452, Fatayi-Williams, JSC (as he then was) held at page 461-462 as follows:
it is clear that the issue of settlement, which is nothing more than actual physical occupation of the land by the plaintiffs, was thoroughly dealt with by the learned trial Judge. We are not in any doubt that his finding in this respect covers both the case for settlement and for the possession on which the claim for trespass was predicated. Therefore, it would not be correct for the Western Court of Appeal to say that the evidence in support of the settlement was not considered at all. It is manifest that the dual function of this crucial testimony has also made the learned trial Judge fall into the error of stating that he need not consider the issue of settlement when he has, in fact, considered it adequately and thoroughly.
After all, the traditional history given in support
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of the title of a family to its land usually traces the title to an individual founder who first acquired the land. This acquisition might be by settlement which, in that context, is no more than a permanent occupation of the land by the founder and the clearing of part of it for his own use and, if he has a family, for the use of his family as well. Consequently, when the plaintiffs averred in their statement of claim that their ancestor, Ogbodo had settled on and farm the land for many years before his death and that the family have been in possession of the whole land since it was settled upon by their said ancestor, all they meant was that the Ogbodo family had been in continuous possession of the land since it was occupied by their ancestor Ogbodo. Therefore, any finding as to the plaintiffs possession of the land in dispute would, in these circumstances, obviously include a finding as to the settlement.
Again in Momodu Ajala vs. Awodele & Anor. (1971) 1 NMLR 127 the defunct Court of Appeal of Western Nigeria held at page 129 as follows:
Mr. Adegunwa argued that because the plaintiffs
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ancestor had no grant of the land in dispute from anybody therefore their title was defective. But the plaintiffs case is that the land was acquired by settlement. Joseph Olaniran the second plaintiff in his evidence said inter alia:
The Oluwofin migrated from Ife and settled at Iwofin which was then a virgin land. Many people came with him. He settled there and was hunting all over the area now in dispute.
It is needless to point out that settlement is one of the traditional modes of acquisition of land.
The evidence clearly shows that the fore fathers of the respondents had settled on their land before 1905 whereas the Federal Government of Nigeria acquired a large piece of land adjacent to the respondents farmland around 1972. The onus shifted to the appellants to show when and how the land upon which Mammy Market is situate was acquired by the Federal Government of Nigeria through whom they trace title. There is no such evidence as found by the learned trial Judge. as to when and how the Federal Government acquired the land on which Mammy Market is situate.
Sections 35, 142, 143 and 170
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of the Evidence Act, 2011 read as follows:
35. Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.
142. When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand or have ceased to stand to each other in those relationships respectively, is on the person who affirmed it.
143. When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
170. No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of
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such tenant had at the beginning of the tenancy a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession of it shall be permitted to deny that such person had a title to such possession at the time when such licence was given.”
A composite reading of the above provisions will show that the learned trial Judge was right in holding that the land on which Mammy Market is situate is the property of the respondents. The Police Officers wives were rent paying tenants of the respondents who have been making use of the land upon which Mammy Market is established. The learned trial Judge rightly granted the respondents the remedies they claimed in the Court below.
I resolve issue two against the appellants. This appeal lacks merit and is dismissed. I uphold the decision of the learned trial Judge (as he then was). I award to each of the respondents N50,000.00 cost against the appellants.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity of reading the draft of the lead judgment delivered
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by my learned brother, JOSEPH TINE TUR, JCA.
Having carefully done, I am in total agreement with the reasoning and conclusions drawn therein.
I therefore, also dismiss the appeal and abide by the orders made therein.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, JOSEPH TINE TUR, JCA. My Lord has carefully and satisfactorily dealt with all the issues involved in the appeal. I therefore agreed with the reasoning and conclusion of my learned brother. I abide by the orders made therein. The appeal fails and hereby dismissed.
I also award N50,000.00 cost in favour of each of the respondents against the appellants.
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Appearances:
B. G. Bulama, Esq. For Appellant(s)
M. Umaru, Esq. For Respondent(s)
Appearances
B. G. Bulama, Esq. For Appellant
AND
M. Umaru, Esq. For Respondent
