ALHAJI SALEH M. TORO & ANOR V. ALHAJI ISIYAKU YAKUBU (2011)

ALHAJI SALEH M. TORO & ANOR V. ALHAJI ISIYAKU YAKUBU

(2011)LCN/4422(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 29th day of March, 2011

CA/J/18/2006

RATIO

PROOF OF TITLE TO LAND: WHERE THE COMPETING PARTIES TO THE LAND IN DISPUTE TRACE THEIR TITLES TO A COMMON GRANTOR OR AN ORIGINAL OWNER, WHETHER THE FIRST IN TIME WILL BE HELD TO HAVE A BETTER TITLE

The question now is: who has the better title? I agree with the learned trial judge that the Respondent who is the first in time has a better title since the grant of land to the Appellant was made only in 1998 during the subsistence of the Respondent’s Certificate of Occupancy issued to him as far back as 1980. In the case of ADENIRAN V. ASHABI (2004) 2 NWLR (Pt.857) 375 the Court of Appeal held thus:”Where two competing parties trace their titles to a common grantor or an original owner, the later in time gives way to the earlier one and he cannot therefore maintain an action against the one who first obtained title or interest in the property. This is because the grantor or original owner who divested himself of his title over the land in dispute to the first grantee would have nothing left to convey to the subsequent grantee.” PER PHILOMENA M. EKPE, J.C.A.

DUTY OF THE PLAINTIFF: EFFECT OF THE FAILURE OF A PLAINTIFF TO BRING ALL THE INTERESTED PARTIES IN A MATTER INTO THE ACTION

See the case of ONAYEMI V. OKUNUBI (1955) 1 ALL NLR 362 where the court held that although it is the duty of a plaintiff to bring all interested parties in a matter into the action, but that is not to say that if the plaintiff fails to do so, his action must fail. PER PHILOMENA M. EKPE, J.C.A.

OWNERSHIP OF THE LAND: WHETHER WHERE THE DEFENDANT ASSERTS OWNERSHIP OF THE LAND IN DISPUTE, THE PLAINTIFF WILL HAVE TO ESTABLISH A BETTER TITLE TO SUCCEED

Although a claim for trespass is rooted in exclusive possession, once the defendant asserts ownership of the land in dispute, title thereto is automatically put in issue and for the plaintiff to succeed; he must establish a better title. See the case of OKHUAROBO V. AIGBE (2002) 9 NWLR (Pt. 771) 29 SC. PER PHILOMENA M. EKPE, J.C.A.

JUSTICES

UZO NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI SALEH M. TORO
2. SAHEL ENGINEERING SERVICES LTD. Appellant(s)

AND

ALHAJI ISIYAKU YAKUBU Respondent(s)

PHILOMENA M. EKPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court Bauchi State presided over by Hon. Justice H. M. Tsammani in Suit No. BA/130/2001 on the 14th day of April 2005. The brief facts of the case are that the Respondent in the lower court sued the Appellants for a declaration of title to a piece of land known as Plot No. 8 Wase Close, Bauchi Industrial Area, covered by a Certificate of Occupancy No. BA/664 dated 10th July, 1980.
The Respondent in addition had also claimed that the appellants trespassed unto this plot of land belonging to him when they merged it with other plots in the area, destroying beacon stones, fencing and excavating the land, and even going further to plant mango trees thereon.
The Appellants on the other hand claimed title to a large piece of land in the same area measuring 6.25 hectres which land included the Respondent’s plot No.8 Wase Close, Bauchi Industrial Area. The Appellants further claimed that as at 1998 the Respondent’s title to the said No.8 Wase Close had been revoked by the Bauchi State Government and 6.25 hectres of land including No. 8 Wase Close had been granted to the Appellants.
The Respondent contended that Bauchi State Government did not revoke his interest on the land as no such revocation had been communicated to him.
The Appellants also contended among other issues that non-joinder of Bauchi State Government was fatal to the Respondent’s claim as the issue could not be effectively resolved without joining Bauchi State Government, Ministry of Land and Survey as a necessary party.
The trial court however entered judgment for the Respondent declaring him the owner of a part of the 6.25 hectres of land earlier granted the Respondent by the Bauchi State Government and awarded him general damages of N50, 000.00.
Dissatisfied, the Appellants however appealed against that judgment.
Learned Counsel for the Appellant filed 7 grounds of appeal and formulated 5 issues for determination. Counsel for the Respondent on his own part also formulated 5 issues for determination and adopted the Appellants’ issue No.3 as formulated by the Appellants. He however raised a preliminary objection pursuant to Order 3 Rule 15 of the Court of Appeal Rules praying the Court to strike out ground 4 of the Appellants’ ground of appeal for being grossly incompetent and incurably defective on the following grounds:
“1. That ground IV of the Appellants’ ground of appeal is vague, imprecise, confusing, and general in nature, contrary to Order 3 Rule 4 of the Court of Appeal Rules.
2. That ground IV is not a complaint against the decision of the trial judge on the applicability of Section 149 (d) of the Evidence Act.”
He argued that ground IV when read together with the particulars of error is largely imprecise, confusing and meaningless. That the particulars of error are unrelated to that ground of appeal. He then cited the case of CENTRAL BANK OF NIGERIA AND 1 OTHER V. AITE OKOJIE AND 5 OTHERS (2002) FWLR (Pt. 103) 349 held 5. He further submitted that ground IV of the Appellants’ ground of appeal is not a complaint against the decision of the trial judge on the applicability of Section 149 (d) of the Evidence Act. That an appeal can only be against or must relate to the decision of the trial judge. He cited the case of EGBE V. ALHAJI (1990) 1 NWLR (pt. 128) 546. He concluded that the learned trial judge rightly held that the Appellants had not drawn his attention to the evidence that was withheld but that with regard to the revocation of the Respondent’s Certificate of occupancy, he opined that the Respondent had led sufficient evidence enough to shift the burden onto the Appellants to prove that Respondent’s title to the said piece of land had been revoked at the time of the Appellant’s grant.
The Appellant on the other hand argued in his reply brief that by nature of the Respondent’s pleadings, the onus was on the Respondent to produce evidence from the Ministry of Lands and Survey to justify his claim of title to the said land and that failure to produce such evidence calls for the invocation of Section 149 (d) against him.
Section 149 (d) of the Evidence Act reads thus:
“(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
The learned trial judge in his considered judgment clearly stated that the plaintiff had adduced enough evidence to justify his claim of title to the said piece of land. He further stated that the plaintiff had no further need of the Ministry of Lands and Survey in order to buttress the facts before his Court. He however concluded that either party was at liberty to use the Ministry to support his case but that if the plaintiff’s case could be proved without evidence from the Ministry, it cannot be said that the plaintiff had withheld that piece of evidence enough to invoke Section 149 (d) of the Evidence Act against him-
Ground IV of the Appellant’s grounds of appeal reads:
“(IV) The learned Trial judge erred in law when while deciding the applicability of section 149 (d) of the Evidence Act held that mere failure to produce evidence would not necessary amount to withholding evidence because in a situation where each side had a fair opportunity to call a witness, it will not accord with Justice for the Court to speculate on what inference to draw from that fact either in favour of or against one of the Parties to the dispute.
PARTICULARS OF ERROR
(a) The plaintiff/respondent sued claiming that his land was Part of the whole granted to the 2nd defendant/Appellant; therefore the onus was on him to call vital evidence to support his claim that his land was part of the 2nd defendant’s.
(b) By the combined effect of section 136 and 137 of the Evidence Act, the plaintiff/respondent was the one to lose if no evidence was called therefore section 149 (d) ought to have been applied against him when no evidence was called from the Ministry of Lands in Proof of the fact that his land had been merged with the one granted to the 2nd defendant.
(c) The only evidence before the court was the Plaintiff’s mere ipse dixit.”
I agree with Learned Counsel for the Respondent that ground IV of the Appellants’ grounds of appeal is vague and imprecise and I do strike it out accordingly.
I had earlier stated that both parties formulated issues for determination and I do intend to use the Appellants’ issues since they have been more elegantly expressed in his brief of argument and are similar to the issues formulated by the Respondent in his own brief of argument. The issues for determination are as follows:
“1. WHETHER the Learned Trial Judge was right in holding that the Respondent’s suit which was hinged on the merger of his plot of land covered with Certificate of Occupancy NO: BA/664 (EXHIBIT PL 1) with other plots of land by Bauchi State Ministry of Land and Survey as exemplified by Certificate of Occupancy NO: BA/21502 (EXHIBIT DF 1) could be effectively and finally determined without Bauchi State Ministry of Land and Survey joined as a necessary party. (Ground (1)).
2. WHETHER the Learned Trial Judge rightly found that the land granted to the Respondent in 1980 as borne out by certificate of occupancy NO: BA/664 (EXHIBIT PL 1) was part of the 6.25 hectares of land granted to the 2nd Appellant in 1998 as shown by certificate of occupancy NO: BA/21502 (EXHIBIT DF 1) (Grounds (ii) & (v)).
3. WHETHER the Learned Trial Judge rightly held that the onus was on the Appellants to prove that the Respondent’s grant had been revoked before the grant made to the Appellants (Ground (iii)).
4. WHETHER the Learned Trial Judge rightly refused to invoke section 149 (d) of the Evidence Act against the Respondent for his failure to produce evidence from Bauchi State Ministry of Land and Survey in proof of the subsistence of his interest in the grant made to the 2nd Appellant. (Ground (iv)).
5. WHETHER the Learned Trial Judge was right in adjudging the Appellants trespassers by reason of their occupation of the 6.25 hectares of land granted to the 2nd Appellant by Bauchi State Ministry of Land and Survey, (Ground (vi)).”
I shall however begin with Issue No. 2 which is the crux of the entire appeal and which if determined will encompass most other issues slated herein. Issue No. 2 reads:
“Whether the Learned Trial Judge rightly found that the land granted the 1st Respondent in 1980 as borne out by the Certificate of Occupancy No. BA/664 (Exhibit PL 1) was part of the 6.25 hectres of land later granted the 2nd Appellant in 1998 as shown by Certificate of Occupancy No. BA/21502 (Exhibit DF 1).”
Learned Appellants’ Counsel argued that the Court below had declared that the Respondent by virtue of the certificate of occupancy No. BA/664 which was tendered and admitted in evidence (Exhibit PL 1) proved his ownership of part of the land granted the 2nd Appellant by the Bauchi State Government i.e. Ministry of Land and Survey in 1998. Learned Counsel for the Appellant referred to paragraphs 5 and 10 of the Respondent’s pleadings in the lower court where he stated thus:
” 5. The plaintiff avers that he is entitled to the land in dispute by virtue of a grant he obtained from the Bauchi State Government in 1980. This grant is evidenced by a certificate of occupancy No. BA/644 dated 4th July 1980. The Certificate together with the attached drawing No. BA/644 copied from Plan No: LP/BA/2 approved by the Surveyor General, Bauchi State is hereby pleaded:
“10. The plaintiff states that sometime in March 2001, he personally went to the site where he discovered that his land had been fenced together with other plots of land on the same line which are identified as Plots 6, 4 & 2 in the Plan attached to the Plaintiff’s Certificate referred to in paragraphs 5 and 6 above.”
Appellants’ Counsel submitted that the above pleadings which formed the crux of the Respondent’s claim before the lower court were vehemently countered when the Appellants in their statement of defence denied any link between the land granted the Respondent and the one granted the 2nd Appellant by the Bauchi State Ministry of Land and Survey. That the Respondent did not give any verbal description of the land which he claimed at the lower court. That the burden rested on the Respondent to prove his title over part of the land and which burden by Section 135 of the Evidence Act does not shift to the defendant. He referred to the case of AYODELE ADEWUYI V. ANDREW AJUKO ODUKWE (2005) 14 NWLR (pt. 945) 473 at 491 held C – F. Learned counsel emphasized that the Respondent was bound to establish a link between the lands described in Exhibit PL 1 (Certificate of Occupancy No. BA/664) and part of the 6.25 hectres granted the 2nd Appellant by Certificate of occupancy No. BA/21502. That failure to produce such evidence is very damaging to the Respondent’s claim as the Survey department would have provided the panacea for the resolution of this case. Learned Appellants’ Counsel urged the Court to note that the evidence proffered by the Respondent was that the beacon stones of the land covered by Exhibit PL 1. Had been obliterated and the plot therein merged into one plot with four other plots to give what is now covered by a Certificate of Occupancy No. BA/2/21502. He concluded that it will be then extremely difficult for a Surveyor to make out a plan with only Exhibit PL 1. As there had not been any verbal description of the land and no visit to the locus was carried out. He concluded that in the absence of comprehensive and lucid description of the land in dispute, the Court below was wrong in holding that the Respondent had proved his case simply because the beacon Numbers Y. 13477, Y. 13469, Y.13468 and Y. 13476 were said to be contained in Exhibit DF 1. (Appellants’ title documents.) He again referred to the case of EJIKE UGOJI V. EZE (Dr.) A.I. ONUKOGU (2005) 15 NWLR (Pt. 950) at 97. Learned Counsel for the Respondent submitted that the finding of the trial judge that the land granted the Respondent in 1980 is part of the land allegedly granted the Appellants in 1998 is amply supported by evidence before that Court. He then referred to paragraph 2 of the plaintiffs’ statement of defence in the Court below as follows:
“In further reply the plaintiff avers that plot No. 8 Bauchi Industrial Area which belongs to the plaintiff is included in the alleged 6.25 hectres to the extent that the defendant relying on his alleged certificate has fenced up plots 10, 8, 6, 4 and 2 as shown on the plaintiff’s survey plan.”
That in support of the above averment, the plaintiff further testified in the lower Court thus:
“When the defendants trespassed on the land, they remove my fence and destroyed the four beacons. They then fenced my plot together with theirs and graded the plot and planted mango trees on it. They did all that without my consent.”
Counsel further submitted that these pieces of evidence were not challenged in the lower court and thus remains uncontroverted and admissible facts which the lower court rightly acted upon. He then cited the case of SALU V. EGEIBON (1994) 6 SCNJ (Pt. 11) 233 and also the case of LEADWAY ASSURANCE CO. LTD V. EZECO NIG. LTD. (2004) 4 SCNJ. i.e. 15 held 9 – 10 where the Supreme Court per Katsina-Alu JSC held as follows:
“Where any evidence given by a party to any proceeding was not challenged by the opposite party who had the opportunity to do so, the court of trial has a duty to act on the unchallenged evidence before it.”
Counsel concluded that evidence also remains unchallenged on the fact that the Respondent’s plot of land granted him in 1980 is included in a later grant to the Appellants of a piece of land in 1998.
The learned trial judge however found that it was the testimony of the plaintiff/Respondent that his land is No.8 WASE ROAD, BAUCHI INDUSTRIAL LAYOUT. Also that the Respondent gave further evidence as to the dimension of the land which was never contradicted, and also the fact that the Respondent continued to pay rents on the land as evidenced in Exhibits P3, P4 and P5 and that the beacon stones on the Respondent’s land were broken by the Appellant.
On page 69 of the record of proceedings the trial judge stated thus:
“The defendants’ witness (DW1) testified to the effect that they applied in 1998 for a plot of land to the Ministry of Lands and the application was approved whereof a Certificate of Occupancy No. BA/21502 (Exhibit DF 1) was issued to the 2nd defendant. However cross examination revealed that beacon Nos. Y 13477, Y 13469, Y 13458 and Y 13476 reflected on the plan verged red which is the land claimed by the plaintiff (Respondent) are also reflected on the survey Plan (Exhibit DF 1).”
The trial judge further stated that a defendant who claims the identity and title of land in issue must successfully contradict the plaintiff’s survey plan of the land in dispute with his own survey plan; otherwise he would fail on that issue. That from the testimony of DW1 and the survey plan tendered by the defendants, both survey plans correspond in some material aspects and thus support the survey plan tendered by the plaintiff of the land in dispute. The lower court also found that the beacon stones on the Respondent’s land are also clearly reflected on Exhibit DF 1 which is the survey plan tendered by the Appellants.
To buttress that point, the learned trial judge cited Section 130 of the Evidence Act thus:
“Recitals statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of the National Assembly, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.”
The learned trial judge found that the Respondent got his grant of land in the year 1980 which was about 25 years from the date of judgment. That the said Certificate of Occupancy issued to him was dated the 4th day of July 1980 and given in the name of the plaintiff/Respondent. The judge further held that those recitals and descriptions contained therein are presumed to be accurate. There is no evidence from the defendants contradicting any of the statements or descriptions in Exhibit P 1, and that Exhibit DF 1 which is the plan tendered by the defendants go a long way to support the plaintiff’s plan.
Again the learned trial judge invoked the principle of law: where two competing title documents originate from a common grantor, he who is the first in time has a better and stronger title. “Where equities are equal the first in time prevails.”
The Respondent applied to the Bauchi State Ministry of Works, Land and Survey and was granted a right of occupancy over a piece of land as evidenced in Exhibits P1 and P2. The defendants were also granted the right of occupancy by the same Ministry of Lands and Survey measuring 6.25 hectres in 1998, as evidenced in Exhibit DF1. The trial court found that the land granted the plaintiff in 1980 forms part of the land granted the 2nd Defendant in 1998. The numbers on the Respondents beacon stones are found in the survey plan of the Appellant which he tendered in the Court below as Exhibit DF1. It can therefore be deduced that the appellant with the survey plan of 6.25 hectres has the larger piece of land encompassing the Respondent’s land and both emanating from the Ministry of Lands and Survey Bauchi State. The question now is: who has the better title? I agree with the learned trial judge that the Respondent who is the first in time has a better title since the grant of land to the Appellant was made only in 1998 during the subsistence of the Respondent’s Certificate of Occupancy issued to him as far back as 1980.
In the case of ADENIRAN V. ASHABI (2004) 2 NWLR (Pt.857) 375 the Court of Appeal held thus:
“Where two competing parties trace their titles to a common grantor or an original owner, the later in time gives way to the earlier one and he cannot therefore maintain an action against the one who first obtained title or interest in the property. This is because the grantor or original owner who divested himself of his title over the land in dispute to the first grantee would have nothing left to convey to the subsequent grantee.”
It is noteworthy however that the Ministry of Lands and Survey did not revoke the Respondent’s Certificate of occupancy before granting the same piece of land to the Appellant. After the Respondent’s grant in 1980 the Ministry had divested itself of land which was bestowed on the Respondents and therefore had no title to issue to the Appellant. I am therefore in total agreement with the findings of the learned trial judge that the Respondent has a better title to the land in dispute and I hereby resolve Issue No. 2 in favour of the Respondent.
On Issue No. 1 whether the learned trial judge was right in holding that the Respondent’s suit could be effectively and finally determined without Bauchi State Ministry of Lands and Survey joined as a necessary party. Learned Counsel for the Appellants submitted that it is not in dispute that the 2nd Appellant was upon an application to Bauchi State Ministry of Lands and Survey granted the parcel of land measuring 6.25 hectares and covered by Certificate of Occupancy No. BA/21502 (Exhibit DF 1) and that the Appellants took possession of the land and planted mango trees thereon. He further submitted that it is equally not in dispute that the Respondent was granted a piece of land measuring 8931.59 square metres by the same Ministry of Lands and Survey. Appellants’ Counsel again stated that the Respondent also concedes to the fact that the Ministry of Lands and Survey is necessary for the resolution of the impasse generated by the grant to the 2nd Appellant of the land allegedly containing the one earlier granted to the Respondent. That the Respondent in the lower court complained to the Ministry about the mix up even though the said Ministry did nothing about it. That since the two separate plots of land had been merged into one and the boundaries; beacon stones and other demarcating features obliterated, by the second grant of 6.25 hectres, by the same ministry, the Respondents suit can only be effectively determined by joinder of the Ministry. He then cited the case of OBA YEKINI ELEGUSHI & 4 ORS. V. SARATA OSENI & 4 ORS (2005) 14 NWLR (Pt. 945) page 348 at 374 held F. Counsel concluded that the Respondent’s suit before the lower court was not proper by virtue of the non-joinder of the Ministry of Lands and Survey and urged the court to resolve the issue in his favour.
In his reply Learned Counsel for the Respondent submitted that Bauchi State Ministry of Lands and Survey is not a necessary party to the suit particularly since relief (b) in paragraph 17 of the plaintiff’s statement of claim had been struck out. He went further to cite the case of INYANG V. EBONG (2001) FWLR (Pt. 125) 703 at 725 where the Court of appeal held thus:
“Necessary parties are those who are not only interested in the subject matters of the proceedings, but also who in their absence the proceedings could not be dealt with.”
Counsel further submitted in the case of BABAYEJU V. ASHAMU (1998) 7 SCNJ. 158 at 167 that the Supreme Court also held that the only reason which makes it necessary to make a person a party to an action is that the question to be settled in the suit must be a question which cannot be effectually and completely settled unless he is a party. He further submitted that all that is required by the court to completely and effectively settle the issue of title raised in the relief is for the plaintiff to prove his title against the defendant who trespassed upon the land and challenged the plaintiff’s title to the land in dispute. Counsel concluded on that point that the Appellants are wrong to contend that the Ministry should be ordered to right the wrong of merging the Respondent’s land with that of the Appellants. That the Respondent has not alleged any wrong against the Ministry and did not pray the court to make any order against the Ministry. That the Respondent’s land is not lost, it is identifiable and was indeed identified. Also that the boundaries, beacon stones and other features are still available. He concluded that all that is needed for the trial court to resolve the dispute is for one party to prove a better title by being in possession at the time the other party entered the land.
In his judgment, the trial judge found that there is no evidence that the Ministry revoked the plaintiff’s title before granting same to the defendant. He went further to dismiss the submission of the defence that the onus was on the plaintiff/Respondent to call the Ministry of Lands to explain. I cannot agree more. For purposes of emphasis, the said Ministry had no title to give at the time of the said grant to the Appellants. The onus therefore had shifted to the defendant/Appellants to call on the Ministry to prove that the Respondent’s land had been revoked at the time of the grant to the Appellant. See the case of ONAYEMI V. OKUNUBI (1955) 1 ALL NLR 362 where the court held that although it is the duty of a plaintiff to bring all interested parties in a matter into the action, but that is not to say that if the plaintiff fails to do so, his action must fail. I agree also with the Court below that the Appellant was at liberty to call on the Ministry to buttress his case and clarify any issue that he considered necessary. I resolve issue No. 1 in favour of the Respondent.
I intend to merge and resolve Issues Nos. three and four, as most of the arguments have been canvassed earlier in this decision.
Issue No. 3 is: whether the trial judge rightly held that the onus was on the Appellants to prove that the Respondent’s grant had been revoked before the grant made to the Appellant and Issue No. 4 is whether the Learned Trial Judge rightly refused to invoke section 149 (d) of the Evidence Act against the Respondent for his failure to produce evidence from Bauchi State Ministry of Lands and Survey in proof of the subsistence of his interest in the grant made to the 2nd Appellant.
On issue No. 3 the learned trial judge had this to say:
“There is no evidence before this court that the Ministry of Lands revoked the plaintiff’s title before granting same to the defendant. I do not agree with the defence’s submission that the plaintiff had the onus of calling the Ministry of Lands to explain. The plaintiff having led evidence showing that his title to the land was in subsistence up to the defendant’s grant, it is my opinion that the defendants had the onus to call evidence to show that the plaintiff’s title had been revoked before their own grant.”
I agree with the reasoning of the learned trial judge that in the absence of such evidence the Court is entitled to hold that the plaintiff’s grant had not been revoked before the grant to the Defendants.
On issue No. 4 concerning the trial judge’s refusal to invoke Section 149 (d) of the Evidence Act against the Appellant, there is no indication that the Respondent attempted to withhold evidence by not calling on the ministry of Lands. The trial judge held that the Respondent had proved his title to land without resort to the Ministry of Lands who he found earlier had no title to hand over to the Appellants in the first place. The Respondent had a valid Certificate of Occupancy and his piece of land was clearly identified within the 6.25 hectres of land purportedly given to the Appellants. Section 149 (d) of the evidence Act cannot be invoked against the Respondent. I therefore resolve this issue in favour of the Respondent.
On ISSUE NO.5 “whether the trial judge was right in adjudging the Appellants trespassers by reason of their occupation of the 6.25 hectres of land granted them by the Ministry of Lands and Survey, Bauchi State, Learned Counsel for the Appellants argued that they had been granted the 6.25 hectres of land by the Ministry of Lands and that they had taken possession of the entire area. That the Appellants had also tendered a survey plan and a Certificate of Occupancy No. BA/21512 Exhibit DF 1. That armed with these documents and the fact that the Appellants had planted trees and cleared the entire land, they had therefore been in exclusive possession of the land and an action of trespass cannot stand against them.
The Respondent on the other hand argued that the Appellants had admitted entering the land in dispute and also conceded that their entry was without the consent or authority of the Respondent. DW1 even stated thus:
“After the Certificate, we proceeded to fence the area and planted mango (imported) breed on the land.”
From the above, Counsel submitted that the Appellants trespassed into the Respondents land but claimed that their entry was by the authority of the Ministry of Lands. He concluded that trespass is actionable per se once the Respondent had successfully proved that he had exclusive possession or better right to the land in dispute. The lower court would have no other alternative than to award damages against the Appellants who entered into the land, destroyed the beacons, excavated the land and planted mango trees thereon without the consent or authority of the Respondent. He then described the acts of the Appellants as an unwarranted interference in the right of the Respondent over the land in dispute.
The learned trial judge however held in his judgment that the Ministry of Lands had no land to give to the Appellants. That accordingly, any purported grant to the defendants was not in the spirit of the Land Use Act. He concluded that the Defendants cannot rely on any right to the possession of the land. He then held that the plaintiff had succeeded in establishing a case of trespass.
CFrom all of the foregoing, I have no doubt in my mind that the learned trial judge assessed and evaluated all the evidence before him and arrived at the said decision. I also resolve Issue No. 5 in favour of the Respondent.
I therefore dismiss this appeal for all the above reasons and I do confirm the judgment of the Lower Court.