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ABDULLAHI & ORS v. THE FEDERAL POLYTECHNIC, KADUNA & ORS (2022)

ABDULLAHI & ORS v. THE FEDERAL POLYTECHNIC, KADUNA & ORS

(2022)LCN/15943(CA) 

In the Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, April 08, 2022

CA/K/610/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. MR. BALA ABDULLAHI 2. MR. ISMAILA DOGO 3. MR. JAMES AGADA 4. MR. IBRAHIM YAKUBU 5. ABUBAKAR H. LAWAL 6. MOHAMMED H. MOHAMMED 7. YUSUF ISIYAKU 8. ABDULRAHMAN H. MUSA 9. FATI GARBA 10. HADIZA GARBA 11. BABA MAYAU 12. ILIYA DANFULANI 13. IRO DANFULANI 14. HAJARA H. BALA 15. DANASABE HARUNA 16. ABDULLAHI AMFANI 17. MUSA SANUSI 18. SANI DANDAD (MAIANGUWA) 19. SAMAILA DOGO YAHAYA 20. ABBAH HAMZA MUSA 21. MOHAMMED ABBA 22. FATI ALIYU 23. GODWIN SAMAILA 24. GARBA USMAN 25. MUSA HAMZA ZARROW 26. MOHAMMED A. MOHAMMED 27. AISHA MUSA BALA 28. HAJIA HAJARA MAIGAIYA 29. KASIMU ALIYU TANKO 30. JATAU JAMES 31. ABELOW DAUDA 32. JENKAI HARUNA (For Themselves And On Behalf Of The Gotakpa-Matari Community, Ungwan Television, Kaduna) APPELANT(S)

And

1. THE FEDERAL POLYTECHNIC, KADUNA 2. THE GOVERNING COUNCIL, FEDERAL POLYTECHNIC, KADUNA 3. THE GOVERNOR KADUNA STATE 4. THE COMMISSIONER, MINISTRY OF LANDS, SURVEYS AND COUNTRY PLANNING, KADUNA RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE GOVERNMENT HAS THE RIGHT TO COMPULSORILY ACQUIRE PROPERTY ON PAYMENT OF COMPENSATION

What comes next is to join the trial Court in adopting the dictum of the Supreme Court in the case of Goldmark (Nig) Ltd vs. Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) p. 291 at 356 to say that:
“The Court has always emphasized that government has the right to compulsorily acquire property on payment of compensation. There is no argument about such constitutional power. There are statutes which provide for the procedure of acquiring property by the government. Government is expected to comply with those statutes which it has enacted where government disobey its own Statute by not complying with the laid down procedure for acquisition of property it is the duty of the Courts to intervene between the government and the private citizens. In the instant case, the trial Court found in favour of the 1st and 2nd Respondents. The Court of Appeal affirmed the findings of the trial Courts declared the public acquisition of the properties of the 1st and 2nd Respondents invalid, null and void the Supreme Court had no reason or exceptional circumstance to interfere with the concurrent findings of facts of the lower Courts.”
Indeed, compensation is an integral part of the process of compulsory acquisition of land in Nigeria. Its importance cannot be over-emphasized as failure to compensate the occupier renders the acquisition a nullity. See Elf Pet. (Nig) vs. Umah ​(2007) 1 NWLR (Pt. 1014) at P.44, Kukoyi vs. Adesina (1999) 10 NWLR (Pt. 624) at p.633, Ogunleye vs. Oni (1990) 2 NWLR (Pt. 135) P. 745.
PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice of Kaduna State delivered by Honourable Justice Hannatu A. L. Balogun on 7th of June, 2019.

The Appellants as Plaintiffs instituted this suit against the Respondents by an Amended Writ of Summons dated 10-05-2017. This culminates to the Appellants/Plaintiffs’ Amended statement of claim against the Respondents as follows:
“(i) A DECLARATION that the Plaintiffs are the persons rightfully entitled to the rights, title and interest in respect of their respective lands situated opposite Angwan Television, Kaduna South along the Kaduna Bye-Pass cumulatively measuring 57.5Has. (142.08 Ac.) and are entitled to a deemed certificate of occupancy in respect of the land in dispute which subject of this suit.
(ii) A PERPETUAL ORDER OF INJUNCTION restraining the 1st and 2nd Defendants by themselves, agents, servants, privies from further trespassing on the said farmlands of the Plaintiffs situated opposite Ungwan Television Village, Kaduna.
​(iii) A PERPETUAL ORDER OF INJUNCTION restraining the 3rd and 4th Defendants from processing and/or issuing any statutory right of occupancy to the 1st and 2nd Defendants over the Plaintiffs’ farmlands situated opposite Ungwan Television Village, Kaduna.
(iv) A DECLARATION that the alleged Right of Occupancy (if any) or any document of title in respect of the disputed parcels of land and in favour of the 1st and 2nd Defendants is invalid, null and void and not capable of diminishing Plaintiffs’ title.
(v) AN ORDER setting aside the offer of grant of Statutory Right of Occupancy (if any) over the Plaintiffs’ farmlands to the 1st and 2nd Defendants, their Agents, Assigns or anyone acting or claiming through them.
(vi) N2,000,000.00 (Two Million Naira) Only General Damages to each of the Plaintiffs for the 1st and 2nd Defendants’ trespass on their farmland and the deprivation of the Plaintiffs’ use of same.
(vii) The cost of this action assessed at N1,000,000.00 (One Million Naira Only).
(viii) SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances.”

​The 1st and 2nd Respondents (Defendants) denied the Appellants/Plaintiffs’ claims and counter-claimed thus:
“a. A DECLARATION and by virtue of the provision of land and native rights ordinance all lands occupied or unoccupied are vested in the government and all lands within an urban area under the control and administration of the Governor of a State by virtue of the provisions of Land Use Act.
b. A DECLARATION that by virtue of grant of right of occupancy No. NC-3075 to the 1st and 2nd Defendants counter-claimants by the 3rd Defendant for a term of 99 years commencing from 9/7/76 and to expire on 8/7/75, the 1st and 2nd Defendants are vested with title over all parcel of land measuring 1.000 acres part of which has been encroached on by members of the Plaintiffs’ community now leaving the 1st and 2nd Defendants/Counter-Claimants with 524.13 Acres shown on the Plan demarcating Kaduna Polytechnic Bye-Pass Campus land and the Gbagyi Community land prepared by the Surveyor-General of Kaduna State.
c. A DECLARATION that the land being claimed by the Plaintiffs situate opposite Angwan Television, Kaduna South, Kaduna cumulatively measuring 57.5 Hectares (142.08 Acres) is within and forms part of the 1st and 2nd Defendants land measuring 1.000 Acres situate along Kachia Bye-Pass, Kaduna.
d. AN ORDER directing the 3rd Defendant to take steps to remove any structure illegally and unlawfully erected on the entire land in dispute or any part thereof forthwith.
e. AN Order of perpetual injunction restraining the Plaintiffs’ members of their community or any persons who they represent or purport to represent and any persons claiming through them from further steps or acts of trespass over the land in dispute.”

The 3rd and 4th Respondents (Defendants) also filed a statement of Defence denying the Appellants/Plaintiffs’ claims. The Appellants/Plaintiffs joined issues with the 1st and 2nd Respondents Defendants on their counter-claim by their Reply and Defence to counter-claim.

The Appellants/Plaintiffs’ case by their Amended Statement of Claim was/is that they are indigenes of Gotakpa-Matari Community under Gbagyi Chiefdom in Ungwan Television Kaduna, Kaduna State. They averred that dating back to the pre-colonial era, the entire area of land now in dispute forms part of the Gbagyi and Hausa/Fulani Chiefdom. And their Gotakpa-Matari Community falls under the Gbagyi Chiefdom. It is their claim that they inherited respective parcels of land from their forebears who from time immemorial farmed on the lands until some times in 1972 when they had to cede some portions of their land to the 1st and 2nd Respondents Defendants on the request of the government for public purpose to wit building of an educational institution. The Appellants/Plaintiffs claimed that their fa shrine and Matari stream which at all material time was situate on the land in dispute and their respective farmlands were not part of the ceded land.

The Appellants/Plaintiffs further contend that sometimes in 2014, the 1st and 2nd Respondents (Defendants) trespassed into their lands by erecting a wall fence on same thereby preventing the Appellants/Plaintiffs access to their land and that several engagements with officials of the 1st and 2nd Respondents (Defendants) to ensure harmonious co-existence proved abortive. Hence, this suit.

​The case of the 1st and 2nd Respondents (Defendants) was/is that they applied for a statutory right of occupancy over the land in dispute vide their letter dated 15-08-1975, exhibit D4 for public purpose to wit building of an educational institution.
Consequently, that the 1st Respondent (Defendant) was vested with title over land via an offer of grant of statutory right of occupancy over an expanse of land measuring 1,000 hectares by the 3rd Respondent (Defendant) exhibit D22.

That sometimes on or about January 2014, the 1st and 2nd Respondent (Defendants) received reports that the Appellants/Plaintiffs trespassed into the land in dispute, breaking the perimeter fence built by the 1st Respondent (Defendant) erecting some structures and farming on same a situation that caused the 1st and 2nd Respondents (Defendants) to lodge a complaint with the Divisional Police leading to the arrest and prosecution of some of the Appellants/Plaintiffs.

The case of the 3rd and 4th Respondents was/is that in 1975, the 1st and 2nd Respondents (Defendants) forwarded an application to them for acquisition of 1,000 acres of land at opposite Angwan Television, Kaduna for educational purpose. That the 3rd and 4th Respondents gave approval for the grant of 1,000 acres of land to 1st and 2nd Respondents on 9-07-1976.

​That following the approval of the grant the 1st and 2nd Respondents (Defendants) were issued statutory rights of occupancy No. NC. 3075 over 1000 acres as shown in sketch dated 2-10-2009, which the land in dispute also forms part of. That the 3rd and 4th Respondents ensured that compensation were paid to the occupiers of the land before the grant was made in the sum of N168,169.

At the trial, the Appellants/Plaintiffs called 4 witnesses and tendered 5 exhibits. The 1st and 2nd Respondents (Defendants) called only one witness and tendered 38 exhibits. The 3rd and 4th Respondents (Defendants) also called a witness who testified as DW2 and tendered 4 exhibits.

At the end of the trial, the learned trial Judge reviewed the evidence on all the sides of the divide and made the following observations and findings:
“1. That the Plaintiffs were original owners of the area in dispute which is shown by the survey plan exhibit P1 (See exhibit D21–D24, D38).
That the Plaintiffs inherited the land from their forebears most of whom were the traditional owners long before the 1st and 2nd Defendants show interest in the larger land and part of which is the land in dispute. [Evidence of PW1 to PW5, admission of DW2 and exhibits D21–24, D38 and D42]
2. That in recognition of their customary ownership, the Government directed that compensation be paid before the process of acquisition will proceed. (Exhibit D19–D24).
That some members of the Communities were paid compensation whilst others were not paid and the ones not paid petitioned the Government who directed that 1st and 2nd Defendants pay the compensation [Exhibits D29, D30 and D38].
The 1st and 2nd Defendants sent a cheque of N168,169 for payment of compensation through the 3rd and 4th Defendants particularly the 4th Defendant.
There is no evidence that the compensation ever got to the Plaintiffs and other members of the other communities that were affected by the acquisition.
3. That in the meantime, the 1st and 2nd Defendants began construction on a part of the large land which is outside the area in dispute to its North.
That the area in dispute and other area to its South were not developed or used by the 1st and 2nd Defendants.
That the Community members who are mainly farmers continued to farm on the disputed land except for the family of PW4 which moved away from the area [Evidence of PW1–PW4].
The Court saw the farms being cultivated by the Plaintiffs when it visited the disputed land.
That it took many years before the 1st and 2nd Defendants released the money meant for compensation [Exhibit D32].
That it was not until 2-10-2009 i.e. over 30 years after the application for the grant that the 3rd Defendant offered the whole land of 1000 acres to the 1st and 2nd Defendants [Exhibits D41 and D42].
That in the meantime there had been several encroachments of the initial area unmarked [Exhibits D19, 21 and D42].
There was a road and a burial ground that took part of the original land.
That the 1st and 2nd Defendants attempted to take their offered land but were met with stiff opposition by the communities.
That one of the communities took the matter to Court.
4. That to prevent a breakdown of law and order the 3rd Defendant decided the matter be settled amicably between the parties.
That a Committee was set up and parties came to an amicable resolution of the dispute and a white paper was issued.
The Surveyor General of Kaduna State drew the plan of the area and demarcated the area to be left to the Communities (Exhibit D38).
That the 1st and 2nd Defendants proceeded to fence off the part allocated to them after the said resolution with the general Gbagyi Community.
The Court at the visit to the locus saw the perimeter fence part of which was broken by the Plaintiff community to gain access to their farms.
That the present Plaintiffs who appear to be a different community from the ones involved in the amicable settlement broke the fence and continued to farm on their farms. Some even put up some structures. At the visit to the locus, the Court found that all the structures were put after the year 2010. However, most of the land consisted of farms wherein the Plaintiffs planted several crops.
Upon seeing that the Plaintiffs broke a part of their fence, the 1st and 2nd Defendants wrote to the Commissioner of Police and State Director of State Security Services as seen in exhibit D36 and D37.
That this led to the arrest of some members of the Plaintiff’s community.
5. That the 4th Defendant wrote to the 1st and 2nd Defendants urging them to pay compensation to the Plaintiffs to enable the 3rd and 4th Defendants issue them with a certificate of ownership over the area allocated to them after the amicable resolution [Exhibits D38–D42].
That the land being claimed by the Plaintiffs was not built upon by the 1st and 2nd Defendants only a perimeter fence which runs at the side of the land was put up and that was shortly before this case was filed.
All along, the Plaintiffs continued to farm on the land which as at then was unfenced.”

The learned trial Judge further held that the Courts have always emphasized that government has the right to compulsorily acquire property on payment of compensation. And in relation to the present case specifically found that the process of acquisition began before 1978 though the compensation is still unpaid until date.

Finally, the learned trial Judge refused to grant Appellants/Plaintiffs’ prayers (1–5) consisting mainly of declaration and injunction. However, the Court ordered the 1st and 2nd Defendants to pay compensation to the Appellants/Plaintiffs. The Respondents/Defendants’ counter-claim was dismissed for being premature in the absence of payment to pay compensation to the Appellants/Plaintiffs.

The learned trial Judge concluded on pages 400 to 402 of Records as follows:
“Having found and held as I have on the various issues raised, I have looked at the reliefs claimed by the Plaintiffs vis a vis all the exhibits tendered and I am of the view that in view of the right of the 3rd Defendant to acquire the land in issue by virtue of the land use Act 1978 for overriding public interest and in view of the fact that the process has since commenced and the only outstanding event is the payment of adequate compensation, it will not be right to grant the first 5 reliefs claimed by the Plaintiffs.
They can be compensated by way of general damages as which they have sought for as well as payment of adequate compensation.
Thus in refusing to grant prayers 1-5, I order that the Defendants particularly the 4th Defendant shall assess the compensation payable to the Plaintiffs and the 1st and 2nd Defendants shall within 3 months pay the compensation to the Plaintiffs.
Since trespass is founded on possession and the Plaintiffs have been in possession of the land in dispute, I order that the 1st and 2nd Defendants shall pay the Plaintiffs damages for trespass in disturbing their possession in the sum of N1m.
On cost, I fail to see the justification for the N1m claimed as cost. Having considered the documents filed in this suit and appearances of parties in Court, cost of N100,000 only is awarded to the Plaintiffs.
I have looked at the counter-claim. Since compensation is yet to be paid, the acquisition of the area in dispute measuring 57.5 hs i.e. 142.08 Acres is still not completed.
Furthermore, from the wording of the prayers, the 1st and 2nd Defendants still believe they have land that measures 1,000 acres. This is not borne out by the evidence and exhibits in this case.
By exhibits D38–D42, the total land left to be granted the 1st and 2nd Defendants as shown in the surveyor general’s plan is 212.090 hectares or 524.13 acres including the land in dispute. This is even after the 1st and 2nd Defendants have paid compensation to the Plaintiffs the total land to be granted then is 212.090 hectares.
The counter-claim against the Plaintiffs is premature in the absence of payment of compensation to them. The counter-claim is accordingly dismissed.
However, in the interest of justice, I shall order that no further construction by the parties especially plaintiffs shall proceed pending the payment of compensation to the plaintiffs and thereafter the 3rd Defendant may take steps to remove structures made by the Plaintiffs on the land and the Plaintiffs shall also give up possession of the land to the 1st and 2nd Defendants.”

Dissatisfied with the portion of the judgment where the Court refused to grant prayers 1–5 of the Appellants’ (Plaintiffs) reliefs and the learned trial Judge’s order for compensation, the Appellants filed a Notice of Appeal containing three (3) grounds of appeal on 31/07/2019.

The grounds of appeal together with their particulars are reproduced below for ease of reference:
“GROUND ONE (1)
The learned trial Judge erred in law when she held that “I am of the view that in view of the right of the 3rd Defendant to acquire the land in issue by virtue of the Land Use Act 1978 for overriding public interest and in view of the fact that the process has since commenced and the only outstanding event is the payment of adequate compensation, it will not be right to grant the first 5 reliefs claimed by the Plaintiffs.”
PARTICULARS OF GROUND ONE (1)
1. That there is nothing before the learned trial Judge to show that the 3rd Respondent acquired the lands that is subject of litigation.
2. That the trial Judge did not consider the oral evidence of the Appellants which was not impeached that the forebears of the Appellant and the Appellant’s ceded some parts of their lands to 3rd Appellant but not the particular portion of land where the Appellants are and remained in possession.
3. That the Appellants had at all material times been in exclusive possession of the land in dispute.
4. That none of the Respondents have ever been in possession of the land in dispute.
5. There was no evidence whatsoever tendered in evidence by Respondents showing that there was negotiation or whatsoever between the Appellants and the Respondents in respect of the disputed land.
6. That 3rd Respondent’s sole witness informed the Court that the 3rd Respondent acquired the said land with no evidence or gazette to back it up.
7. The learned Judge failed to bring into context that one cannot give what he or she does not have.
8. That the 1st and 2nd Respondents have never lay claim to the portion of the disputed land until 2014 while the Appellants have been exercising various acts of ownership since time immemorial on the disputed land.
9. That at no time was the disputed land ever subject to acquisition let alone given to the 1st and 2nd Respondents by the 3rd Respondent.
10. That the 3rd Respondent at no time exercised the right of acquisition over the disputed land and has not acquired the disputed land in law.
11. That exhibits D19-D24 tendered by the 1st & 2nd Respondents showed some steps to be taken before the 3rd Respondent will exercise the right of acquisition which the 3rd Respondent did not exercise in respect of the disputed land.
GROUND TWO (2)
The learned trial Judge erred in law when she misconstrued the fact and which led to wrong conclusion and thereby led to the miscarriage of justice by stating that in “the present case, the process of acquisition began before 1978 though compensation offered.”
PARTICULARS OF GROUND TWO (2)
1. The oral evidence of the Appellants’ witnesses is unanimous that the land in dispute is not part of the land ceded to the 4th Appellant which makes offering of compensation over same not necessary and of no moment.
2. The land in dispute is not part of the land the compensation was offered for it was the land ceded by the Appellants’ forebears.
3. That at no time was the disputed land ever subject to acquisition let alone given to the 1st and 2nd Respondent by the 3rd Respondent.
GROUND THREE (3)
The learned trial Judge misdirected herself when she held that “I hold the view that the Government did not need to issue a revocation notice after the Land Use Act came into effect since process of acquisition commenced prior to the coming into effect of the new law Land Use Act”. This led to miscarriage of justice.
PARTICULARS OF GROUND THREE (3)
1. The application for the piece of land which was in rural area at the time of the application was not granted until 30 years after the application was made, that application in law is not subsistent is law.
2. The trial Court failed in its duty to properly appraise and consider that the 3rd Respondent cannot grant the 1st Respondent’s application over the land that belongs to customary owner without first revoking same and compensation paid at the time of approving the 1st Respondent’s application.
3. The intention to acquire and revoke a land for public interest is not tantamount to revocation of same without following the laid down law.”

The relevant briefs of argument for the appeal are as follows:
1. Appellants’ brief of argument which was filed on 26/10/2021 but deemed filed on 27/10/2021. It is settled by Godwin Ojebiyi, Esq.
2. 1st and 2nd Respondents brief of argument which was filed on 26/11/2021. It is settled by Kabir Momoh, Esq.
3. 3rd and 4th Respondents brief of argument which was filed on 2/02/2022 but deemed filed on 14/02/2022. It is settled by Abdullahi Isiaka Esq, Ministry of Justice, Kaduna State.
4. Appellants’ Reply brief to the 1st and 2nd Respondents which was filed on 31/01/2022. It is settled by Godwin Ojebiyi, Esq.
5. Appellants’ Reply brief to the 3rd and 4th Respondents which was filed on 10/02/2022. It is settled by Godwin Ojebiyi Esq.

Learned counsel for the Appellants nominated a sole issue for the determination of the appeal. It is;
“Whether in consideration of the pleadings vis-a-vis the evidence led the trial Court was not in error when it held that the process of acquisition began before 1978 over disputed land when there is no compensation paid, no Gazette, no Survey plan, no Notice of Revocation served on the Appellants showing the land is part of the land allegedly acquired.”

Learned counsel for the 1st and 2nd Respondents also formulated a sole issue for determination of the appeal thus:
“Whether having regards to the facts and evidence adduced at the trial Court, the learned trial Judge was right in law when she dismissed the claim for declaratory and injunctive reliefs and held that the acquisition of the land in dispute was valid and proper. (Grounds 1, 2 and 3).”

Learned counsel for the 3rd and 4th Respondents adopted the sole issue formulate for determination by the 1st and 2nd Respondents.

​In this appeal, the submissions of the Appellants shall be placed on one side of the scale of justice while the submissions of the two sets of Respondents shall be placed on the other side of the scale as the submissions of the “Respondents.” This is for the reason of the shared common interest between the two sets of Respondents and also for convenience.

On the sole issue, learned counsel for the Appellants started by drawing our attention by reproducing the provision of Section 34(1) and Section 45 Land Tenure Law of 1962 Cap 59 and Section 29 and 44 of the Land Use Act of 1978.

He submitted that the community reading of both Land Use Act and Land Tenure Law Cap. 59 which was in force at the time the purported revocation took place and Land Use Act of 1978 which is in operation till date, point to one direction, notice must be served on the occupier or the owner of the said Land before revocation in Law can be said to be effectively commenced and then compensation must be promptly paid to the owner of the said Land from the date of service of the said Notice.

​He submitted that in the instant case prior to the 1978 Land Use Act, no Notice was served on the owner/occupier and after the Land Use Act came into operation no Notice and payment of compensation was ever muted by the Respondents.

Learned counsel for the Appellants contend that the land in dispute does not form part of the land ceded to the 3rd and 4th Respondents for the purpose of building a higher institution and therefore it is not part of the Land compulsorily acquired by the 3rd & 4th Respondents. He submitted that the unimpeached evidence of all the Appellants’ witnesses are to the facts that the land in dispute was not part of the land the State compulsorily acquired in 1976 or any other date at all.

Appellants’ counsel quoted a portion of the evidence of PW3 at pages 354 and 355 where he (PW3) stated thus:
“I was living at Television Village in 1972, I was not a party during the meeting between the government and our fathers, there are some things I stated which I was part of and there are some that I was told. I went the chief’s palace with my father to the meeting wherein we were told that some people’s lands will be acquired but some will not be. Polytechnic did not acquire where we were farming the chief did not give our own portion which also included the chiefs’ land to the government. In fact he was accused of bias as he gave other peoples farmlands but not his own and ours….”

Learned counsel for the Appellants submitted that there is nothing on the record of proceedings before the trial Court that any negotiation for compensation over the disputed land ever took place. Similarly, the 3rd and 4th Respondents never served the Appellants or anyone a Revocation Notice as stipulated by the law to be served on the owner of such property acquired. That till date, there is no Gazette in respect of the Land that the Government of Kaduna State ever acquired the said portion of the land in dispute.

Counsel emphasized that the Appellants since time immemorial have been in possession of the said land farming and building houses thereon until 2014 when the 1st and 2nd Respondents used police to arrest and intimidate the Appellants in a bid to illegally force them out of their ancestral land, houses and farms on the pretext that the land was given to them by 3rd and 4th Respondents.

​Learned counsel for the Appellants submitted that the onus of proving that the disputed land is part of the land purportedly acquired prior to 1978 is on the 3rd and 4th Respondents. That the onus is on the person that says such compliance of the law took place to prove same. That it cannot be done by conjecture or supplying missing links but by real evidence. He referred to the cases of Union Bank of Nigeria vs. Ozigi (1994) 3 SCNJ 42 at 64; Yakubu vs. Federal Republic of Nigeria (2009) FWLR page 387 at 407, Damina vs. State (1995) LPELR–918 (SC) p.25.

He reiterated that any owner/occupier of a deemed tenancy either under the Land Tenure Law of 1962 or the Land Use Act of 1978 is entitled to a notice and also compensation before his or her interest in any land could be compulsorily acquired by the Minister or Governor.

He referred to the cases of Savannah Bank (Nig) Ltd vs. Ajilo (2001) FWLR (Pt. 75) 513, Sunmonu Olohunde & Anor vs. Prof. S.K. Adeyoju (2000) 6 SCNJ 470 at 505.

It is the contention of the Appellants that the disputed land was not compulsorily acquired at all either by Kachia Local Government or Kaduna State Government either in 1975, 1976, 1977 or any other date at all. He referred to pages 359 and 360 of the Records of Proceeding when the 3rd and 4th Respondents witness Mr. Mukhtar Usman Mohammed Sukola Acting Surveyor General of Kaduna testified. He stated in his response under cross-examination that the Governor did not sign the approval for the acquisition letter purportedly used. Furthermore, that there is no evidence that anyone collected compensation for the land in dispute. Meaning the government did not acquire the land in dispute hence, there is no need to pay compensation to the owners.

Again, at page 360 of the Record of proceedings, said counsel, the witness continued,
“I see exhibit D35 Surveyor Lawal Balarabe the former Surveyor General signed the sketch plan, the sketch plan was not dated” “Surveyor Lawal Balarabe was the Surveyor-General of Kaduna State in 2010. Surveyor Lawal Balarabe was not the Surveyor General in 1976”
I do not have any Gazette to show that the Kaduna State Government compulsorily acquired the land in dispute.”

​Appellants counsel submitted that it can be gleaned from the response of the DW2 who is the witness for the 3rd and 4th Respondents that the purported sketch plan allegedly used to compulsorily acquired the disputed land was not dated, signed by the Surveyor-General that served the State in 2010. This can only be interpreted to mean one thing, that the disputed land is not and was not compulsorily acquired by either Kachia Local Government or Kaduna State Government.

He submitted that the Respondents’ compulsory acquisition of the Appellants’ land is a nullity since it was not done in accordance with the law of the land.

Learned counsel for the Appellants referred to the case of Olatunji vs. Military Governor of Oyo State (1995) LPELR 14116 for the proposition that there can be no concurrent possession by two parties claiming adversely.

He reiterated the trite position of the law that compensation is an integral part of the process of compulsory acquisition of land in Nigeria. The government with all its might cannot acquire the land of an individual without paying adequate compensation to the disposed citizen.

He referred to the cases of Elf Pet. (Nig) vs. Umah (2007) 1 NWLR (Pt. 1014) at P.44, Kukoyi vs. Adesina (1999) 10 NWLR (Pt. 624) at p.633, Ogunleye vs. Oni (1990) 2 NWLR (Pt. 135) P. 745, Goldmark (Nig) Ltd. Vs. Ibafon Co. Ltd ​(2012) 10 NWLR (Pt. 1308) 291 at 356, National Universities Commission vs. Oluwo (2001) 3 NWLR (Pt. 699) at p.90.

He submitted relying on the case of Mulima vs. Usman (2014) 16 NWLR (Pt. 1432) 160, that failure to comply with the legal requirements for revocation of existing rights to land renders a subsequent Certificate of Occupancy on such land a nullity on the age-long principle of nemo dat quod no habet and concluded that the trial Court having agreed that the Appellants forebears are the owners of the portion of the disputed land. And, having agreed that the Appellants proved their ownership of the disputed land and the Respondents trespassed on the Appellants’ lands, it remains for this Court to allow the appeal and grant reliefs 1–5 of the Appellants’ claims before the trial Court.

​On the sole issue in this appeal, the Respondents, more especially through the 1st and 2nd Respondents submitted that it was never the case of the Respondents that the purported title of the Appellants over the area of land in dispute and by extension the expanse of land vested in the 1st Respondent was revoked by the 3rd Respondent. Thus the contention by the Appellants that the alleged revocation was not in accordance with provisions of the Land Tenure Law and the Land Use Act is misconceived and misleading.

The Respondents reviewed the facts of the case as presented before the trial Court reiterating their position that upon the acquisition of the expanse of land vested in the 1st Respondent, compensation was assessed and paid through Kachia Local Government Council to the representatives of the communities who were in occupation of the area of land granted to the 1st Respondent at the material time.

The Respondents then submitted that having elected to plead and prove their root of title by traditional history to sustain the grant of a declaration of title to the area of land in dispute, the Appellants must plead facts as to who founded the land in dispute and that these facts must be proved by cogent, credible and reliable evidence to succeed in the claim for declaration of title.

​The Respondents submitted that where this Court finds that the Appellants did not prove their title to the area of land in dispute, the consideration of whether the area of land was validly and properly acquired by the Respondents become otiose and an academic exercise.

The Respondents submitted that none of the Appellants’ witnesses gave a credible account of who the founder of the entire area of land in dispute part of which the Appellants claimed belongs to them apart from mere averments that their predecessor in title need the area of land in dispute from time immemorial. The Appellants said counsel neither pleaded sufficient facts of their title i.e, traditional history nor did they demonstrate and establish their title by cogent and credible evidence and reliable traditional history.

The Respondents submitted that the Appellants thus lack the locus to challenge the acquisition of the area of land and can neither claim compensation nor assert that the acquisition of land and vesting same in the 1st Respondent was invalid and improper.

The Respondents concluded that the order of payment of compensation to the Appellants and award of damages for trespass against the Respondents are erroneous and urged us to dismiss the appeal and affirm the judgment of the trial Court.

​In his reply briefs to the Respondents, learned counsel for the Appellants clarified the seeming distinction which the Respondents tried to make between acquisition and revocation.

He submitted that the point was to show that while it is granted that the 3rd and 4th Respondents have powers to acquire the Appellants/Plaintiffs’ land for overriding public interest or revoke a person’s right of occupancy, same acquisition must be done in accordance to the provision of the laws in force.

That it cannot be inferred that the Appellants’ land was acquired not their right of occupancy revoked by the 3rd and 4th Respondents.

Learned counsel for the Appellants further urged that we discountenance the submissions of the Respondents as they go to no issue in that they did not address the issues in the grounds of appeal and have not filed any cross-appeal.

Resolution of Sole Issue
The thrust of the Respondents’ submissions on the question of proof of Appellants’ traditional history was not part of the issues contested by the Appellants in this appeal and the Respondents ought to be reminded that they have not filed any cross-appeal.

​In any event, the judgment of the trial Court proceeded on the undisputed basis that the Appellants were the traditional and/or original owners of the land in dispute.

The pertinent question in this appeal is whether the Respondents could be said to have any answer or defence to the Appellants’ claims by their claim of acquisition of land and grant of statutory right of occupancy which has no legal basis. The argument of the learned counsel for the Appellants was/is that the acquisition of land of an owner/occupier especially with a deemed right of occupancy be it customary or statutory would require the fulfilment of valid notices and compensation as to land before acquisition could be deemed proper. Thus, as far as the Appellants are concerned there was never a valid acquisition of the disputed land. This fact was never disproved in evidence before the trial Court by the Respondents who carried the evidential burden or load of proving that there was indeed acquisition of the Appellants/Plaintiffs’ land.

What comes next is to join the trial Court in adopting the dictum of the Supreme Court in the case of Goldmark (Nig) Ltd vs. Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) p. 291 at 356 to say that:
“The Court has always emphasized that government has the right to compulsorily acquire property on payment of compensation. There is no argument about such constitutional power. There are statutes which provide for the procedure of acquiring property by the government. Government is expected to comply with those statutes which it has enacted where government disobey its own Statute by not complying with the laid down procedure for acquisition of property it is the duty of the Courts to intervene between the government and the private citizens. In the instant case, the trial Court found in favour of the 1st and 2nd Respondents. The Court of Appeal affirmed the findings of the trial Courts declared the public acquisition of the properties of the 1st and 2nd Respondents invalid, null and void the Supreme Court had no reason or exceptional circumstance to interfere with the concurrent findings of facts of the lower Courts.”
Indeed, compensation is an integral part of the process of compulsory acquisition of land in Nigeria. Its importance cannot be over-emphasized as failure to compensate the occupier renders the acquisition a nullity. See Elf Pet. (Nig) vs. Umah ​(2007) 1 NWLR (Pt. 1014) at P.44, Kukoyi vs. Adesina (1999) 10 NWLR (Pt. 624) at p.633, Ogunleye vs. Oni (1990) 2 NWLR (Pt. 135) P. 745.
Granted, that this case is not a case of compensation for compulsory acquisition of land but a claim for declaration of title and injunction on the basis that there was indeed no acquisition of the Appellants/Plaintiff’s land so as to diminish from its deemed right of occupancy. This is because there are statutes which provide for the procedure for acquiring property by the Government. Government is expected to comply with those statutes and it must as a matter of law comply with those statutes which Government has enacted. Therefore, where Government disobeys its own statutes by not complying with the laid down procedure for the acquisition of private property, it is the duty of the Courts to intervene against the Government and in favour of the private citizen. See Provost, LACOED vs. Edun (2004) 6 NWLR (Pt. 870) 476 SC.

​In the instant case in the absence of proof of compliance with the processes of acquisition by the Respondents, such as Gazette, survey plan, and proof of compensation, it cannot indeed be said that the Appellants/Plaintiffs’ land was ever acquired by the 3rd Respondent for the use of the 1st and 2nd Respondents.

In my considered opinion, there is therefore nothing that prevented the learned trial Judge from granting the Appellants/Plaintiffs’ claims for declaration and injunction the trial Court having found in favour of the Appellants’ traditional or customary right and possession of the disputed land.

The sole issue in this appeal is resolved in favour of the Appellants. This appeal is meritorious and it is allowed.

In addition to the award of damages of N1million for trespass to the Appellants Plaintiffs and the sum of N100,000 as costs for the action, I also now grant Appellants/Plaintiffs’ reliefs for declaration and injunction as follows:
(1) A Declaration that the Plaintiffs are the person rightfully entitled to the rights, title and interest in respect of their respective lands situated opposite Angwan Television, Kaduna South along the Kaduna Bye-pass cumulatively measuring 57.5 hectares (142.08 Acres) and are entitled to a deemed Certificate of Occupancy in respect of the land in dispute which is subject of this suit,<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

(2) A perpetual order of injunction restraining the 1st and 2nd Defendants by themselves, agents, servants, privies from further trespassing on the said farmlands of the Plaintiffs situated opposite Ungwan Television village Kaduna.
(3) A Declaration that the alleged right of occupancy or any document of title in respect of the disputed parcels of land and in favour of the 1st and 2nd Defendants is invalid, null and void and not capable of diminishing Plaintiffs title.
(4) It is hereby ordered that the offer of grant of statutory right of occupancy (if any) over the Plaintiffs’ farmlands to the 1st and 2nd Defendants their agents, assigns, or anyone acting or claiming through them is hereby set aside.
N100,000 costs is awarded to the Appellants jointly and severally against the Respondents.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the judgment of my learned brother, MOJEED ADEKUNLE OWOADE, PJCA. I agree with the reasoning and conclusions that the appeal is meritorious and it is allowed by me. I abide by the consequential order(s) in the lead judgment. <p< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></p<>

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

M. E. SALIHU ESQ. For Appellant(s)

KABIR MOMOH ESQ., FOR 1ST AND 2ND RESPONDENTS.
A. ISIAKA ESQ., FOR 3RD & 4TH RESPONDENTS. For Respondent(s)