JOBA v. NACHE & ORS (2020)

JOBA v. NACHE & ORS

(2020)LCN/14653(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, October 23, 2020

CA/K/547/2017

RATIO

LAND LAW: SITUATION WHERE THE IDENTITY OF LAND WILL BE IN DISPUTE

It is settled law that the identity of land will be in dispute if the Defendant in his Statement of Defence makes it so by specifically disputing either the area or size covered or the location as described in the Statement of Claim or the Plaintiff’s plan. See Adenle v. Olude (2003) All FWLR Part 157 Page 1074 at 1086 Para C-E per Uwaifo JSC; (2002) 9-10 SC Page 124; at 135 lines 15-20.
Ascribing different names to land by the parties, is immaterial, I hold, for purposes of proving identity to land. See Atanda v Iliasu (2013) 6 NWLR Part 1351 Page 529 at 555 Para C-D per Ogunbiyi JSC; Faleye v Dada (2016) 15 NWLR Part 1534 Page 80 at 104 Para A per Peter-Odili JSC. PER ADEFOPE-OKOJIE, J.C.A.

LAND LAW: EFFECT OF PARTIES BEING AD IDEM ON THE IDENTITY OF LAND IN DISPUTE ON THE DIFFERENT NAMES ASCRIBED TO IT

it is settled law that where parties are ad idem on the identity of the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal. See Ojo v Azam (2001) 4 NWLR Part 702 Page 57 at 68 Para C per Onu JSC; Atanda v Iliasu Supra. PER ADEFOPE-OKOJIE, J.C.A.

LAND LAW: DUTY OF A PERSON CLAIMING OWNERSHIP OF LAND THROUGH TRADITION

I agree with the Appellant’s Counsel, that a person claiming ownership of land through tradition must plead the root of his title and the names and history of his ancestors, and also lead evidence to show the root of his title and before him, that of his ancestors. See Okereke v. Nwankwo (2003) 9 NWLR Part 826 Page 592 at 616-617 Para G-A per Edozie JSC; Anyafulu v. Meka (2014) 7 NWLR Part 1406 Page 396 at 411 Para D-F per Aka’ahs JSC. PER ADEFOPE-OKOJIE, J.C.A.

LAND LAW: NATURE OF A DEEMED GRANT

The nature of a deemed grant was deliberated upon by the Supreme Court in the case of Provost Lagos State College of Education & Ors. v. Dr. Kolawole Edun & Ors (2004) 6 NWLR Part 870 Page 476 at 499 Para B-H per Iguh JSC, reading the lead judgment, as follows:
“There is firstly the statutory right of occupancy granted by a State Governor pursuant to Section 5(1)(a) of the Act and the customary right of occupancy granted by a Local Government under Section 6(1)(a) of the Act. The second classification is the statutory right of occupancy deemed to have been granted by a State Governor pursuant to Section 34(2) of the Act as against the customary right of occupancy deemed to have been granted by a Local Government under Section 36(2).

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

MR DANAZUMI JOBA APPELANT(S)

And

1. MARVELLOUS DANIEL NACHE 2. GOVERNOR OF KADUNA STATE 3. HON. COMMISSIONER FOR LANDS, SURVEY AND COUNTRY PLANNING, KADUNA STATE 4. ATTORNEY GENERAL FOR KADUNA STATE RESPONDENT(S)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kaduna State High Court, hereafter referred to as “the lower Court”, delivered on the 14th day of July, 2017 by Hon. Justice H.A.C. Balogun wherein judgment was entered in favor of the 1st Respondent as per his Statement of Claim.

The facts of the case, as presented by the 1st Respondent, who was the Plaintiff in the lower Court, are that on the 25th day of January, 1975, Mr. Daniel Nache, the father of the 1st Respondent, bought a plot of land at Mararaban Rido, Kaduna State from one Mallam Duna Rido, the radical title holder, for the sum of N70.00 (Seventy Naira). He proceeded to plant economic trees and constructed a farmhouse as well as a piggery on the land. On the death in 1997 of Mr. Daniel Nache, the 1st Respondent, who is his first son, took up effective possession and occupation of the said plot of land, without interruption or disturbance by any person whatsoever until between 13th and 14th August, 2004, when the Appellant procured the services of some work men who entered unto the

property and chopped down all the economic trees. These comprised over 20 mango trees, over 20 orange trees, Guava and over 15 locust bean trees. On being challenged, they stated that their services had been retained by the Appellant, whereupon the 1st Respondent filed a complaint against him for criminal trespass and mischief.

The case continued from 2004 until 2009 when the Appellant filed a motion annexing a Certificate of Occupancy alleging that he had title to the land in dispute. A search by the 1st Respondent at the Land Registry yielded nothing as the file was said to be missing. He caused petitions to be written by his Solicitor to the 3rd Respondent, which were never responded to. He accused the Appellant of surreptitiously processing title over his plot and this with no compensation by the 3rd Respondent to him or revocation of his deemed holding. He, in consequence, instituted an action before the lower Court against the Appellant and the 2nd – 4th Respondents, seeking declarations that he is the deemed holder of the land and that the 2nd Respondent has no power under the Land Use Act to have acquired the property, which acquisition was

contrary to the said Act and should thus be declared null and void. He also sought damages and the award of interest on the said sums.

The Appellant, as 1st Defendant before the lower Court, however contended that his land which is covered by State Certificate of Occupancy No. Nc 7719 and issued to him by the 2nd Respondent, is bare land without any form of development on it. He denied that Duna Rido ever owned the land and thus did not deserve to be paid any compensation or given any notice of revocation. He also denied that the mango trees alleged were on the land and, even if they were, the 1st Respondent, not being the owner of the land could not claim ownership.

In proof of his claim, the 1st Respondent testified and called four witnesses. The Appellant was the sole witness in his defence.

On conclusion of trial, the lower Court granted all the reliefs sought, with the exception of the 7th relief.

Dissatisfied with the judgment, the Appellant filed a six (6) ground Notice of Appeal on 9/8/17 which, by the leave of this Court given on 19/4/18, was amended. The Amended Notice of Appeal filed on 14/3/18, was deemed properly filed on

19/4/2018 and further deemed filed on 10/9/20.

The Appellant’s Brief of Arguments, filed on 14/3/18 and deemed properly filed on 10/9/2020, was settled by his Counsel, Isaac P. Dapun Esq. of Abdullahi Maikarfi & Associates, wherein four (4) issues for the determination of this appeal were formulated, to wit:
1. Whether from the pleading of the parties at the trial Court, the identity of the land in dispute is in issue.
2. Whether the 1st Respondent has identified the land in dispute with definite precision or certainty to warrant the trial Court entered judgment in his favor.
3. Whether the failure of the 1st Respondent to show by credible evidence how Mallam Duna Rido got the land before selling it to his father, is not fatal to his case, the Appellant having challenged the title of the said Mallam Duna Rido over his land.
4. Whether the 1st Respondent has been able to specifically plead and prove the monetary damages of N700,000 and N90,000 to the trial Court award same against the Appellant in the light of the fact that it is a claim made in the fact that it is a claim made in the alternative. He also filed a reply.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the 1st Respondent’s Brief of Arguments, filed on 5/3/2020 and deemed properly filed on 10/9/2020, Victor Olisah Esq., formulated four (4) issues for the Court’s determination, as follows:
1. Whether the Plaintiff (1st Respondent) identified the disputed plot of land along Maraban-Rido Kachia Road, immediately beside the hill after Mbere Farm towards the intersection of the Eastern bye pass Maraban-Rido, Kaduna within the urban area of Kaduna, distinctly and properly, in this case?
2. Whether the trial Court was right in granting the 1st Respondent statutory right of occupancy of the disputed plot of land along Maraban-RidoKachia Road, immediately beside the hill after Mbere Farm towards the intersection of the Eastern bye pass Maraban-Rido, Kaduna within the urban area of Kaduna in view of his evidence and that of his (sic) and that the revocation of 1st Respondent deemed Right of Occupancy by the 2nd Respondent and subsequent regrant of Certificate of Occupancy in favour of the Appellant was done in violation of provisions of Land Use Act?
3. Whether the lower Court was right when it awarded the Monetary Claim of N700, 000

(Seven Hundred Thousand Naira) only and N90,000:00 (Ninety Thousand Naira) only of the 1st Respondent against the Appellant?
4. Whether an Appellant Court can interfere with or disturb the findings of facts drawn by the Lower Court?

In response, the Appellant filed a Reply Brief on 17/3/2020 but deemed properly filed on 10/9/2020.

I shall adopt the issues for determination formulated by the Appellant, amending them, where necessary, for clarity.
The issues are:
1. Whether from the pleadings of the parties at the trial Court, the identity of the land in dispute is in issue.
2. Whether the 1st Respondent has identified the land in dispute with definite precision or certainty to warrant the trial Court entering judgment in his favor.
3. Whether the failure of the 1st Respondent to show by credible evidence how Mallam Duna Rido got the land before selling it to his father, is not fatal to his case?
4. Whether the 1st Respondent has been able to specifically plead and prove the monetary damages of N700,000 and N90,000 to warrant the trial Court awarding the same against the Appellant and whether this claim was made in the alternative.

The 1st issue for determination is:
Whether from the pleadings of the parties at the trial Court, the identity of the land in dispute is in issue.

The Appellant’s Counsel has submitted that from the pleadings of the parties before the Court, the identity of the land being claimed by the 1st Respondent has been put in issue. He alleged that while the 1st Respondent described his land as already developed, the Appellant described his as an empty land without any form of structure on it. He pointed out that the 1st Respondent had claimed that part of the land in contest has been used during the dualisation of the Kachia/Refinery Road, however the Appellant on the other hand said that his land was never affected during the dualisation of the said Road. Furthermore, the 1st Respondent had alleged that there was a poultry and piggery on the land, which has been denied by the Appellant.

In addition, the assertion by the trial judge that the Appellant only denied the number of trees cut down is not borne out of the pleading and evidence adduced by the Appellant before the said Court. Moreover, the land of the Appellant is said to

be situate at Tsaunin Kura, while the 1st Respondent stated his land to be at Mararaban Rido. He alleged that the receipt relied upon by the 1st Respondent (Exhibit P6 and P6a), which is the pillar upon which the case of the 1st Respondent is built, relates to an unspecified farm land whose location is not stated in the Exhibit and therefore has no nexus with the land in issue, which is a plot of land and not farm land. There is also no evidence from the 1st Respondent explaining how a farmland metamorphosed into a plot of land. It is also not mentioned anywhere about the issue of a receipt to the 1st Respondent.

In his response, the 1st Respondent’s Counsel submitted that the Appellant had admitted the identity of the land in dispute in paragraph 5 of his Amended Statement of Defence on Page 135 of the record. He argued that the Appellant did not state that the land is not along Kachia Road or that it is not beside the hill after Mbere Farm along Kachia Road in his Appellant’s Brief.

On this issue, the trial Judge held, at Page 303 of the Record:
“From the 1st Defendant’s pleadings, the issue of identity of the land in

dispute was not raised. It is no wonder therefore that this issue was not canvassed as an issue for determination during the pre-trial conference. Paragraphs 6-7 of the Statement of Claim describe the land in issue. Also by paragraphs 11-30 of the Statement of Claim as well as paragraph 2 and 4-15 of the Statement of Defence, both parties are very clear as to the land in dispute
It is the same land that the Plaintiff reported the 1st Defendant over both at the Police Station and which led to the trial at the lower Magistrate Court as shown by Exhibits P3-P6. Parties are agreed that it was over the same land that the 1st Defendant was issued with a Certificate of Occupancy No. NC7719 which is being challenged in this matter. From all the above documents, the depositions of witnesses particularly that of the 1st Defendant as well as the cross examination and the bundle of exhibits tendered, I have no doubt that both parties know the land in dispute, have joined issues on same and are not at all referring to different pieces of land.”

It is settled law that the identity of land will be in dispute if the Defendant in his Statement of Defence makes

it so by specifically disputing either the area or size covered or the location as described in the Statement of Claim or the Plaintiff’s plan. See Adenle v. Olude (2003) All FWLR Part 157 Page 1074 at 1086 Para C-E per Uwaifo JSC; (2002) 9-10 SC Page 124; at 135 lines 15-20.
Ascribing different names to land by the parties, is immaterial, I hold, for purposes of proving identity to land. See Atanda v Iliasu (2013) 6 NWLR Part 1351 Page 529 at 555 Para C-D per Ogunbiyi JSC; Faleye v Dada (2016) 15 NWLR Part 1534 Page 80 at 104 Para A per Peter-Odili JSC.

In Paragraphs 5-7 of the Statement of Claim, at Page 5 of the Record of Appeal, the 1st Respondent, referring to the land in dispute averred as follows:
1. That on the 25th day of January 1975, Mr. Daniel Nache bought from the radical title holder Mallam Duna Rido a plot of land at Maraban Rido Kaduna in the sum of N70.00 and he was issued a receipt. The Plaintiff shall rely on the said receipt at the trial of the suit it is hereafter called Exh P1.
2. That immediately, Daniel Nache proceeded and planted economic trees namely Mangoes, Guava, Palm trees, Oranges, Locust beans and also

built a piggery and poultry house and also a farm house on the said plot of land.
3. That Daniel Nache has been in quiet and peaceable possession of the said plot of land along Maraban-Rido Kachia Road, immediately besides the hill after Mbere Farm towards the intersection of the Eastern bye pass Maraban-Rido, Kaduna within the urban area of Kaduna since 1975.

The Appellant in response, averred as follows in Paragraphs 4-6 of the Amended Statement of Defence at Page 164 of the Record:
4. “The 1st Defendant denies paragraph 5 of the statement of claim and states that at no time whatsoever has anybody known as Mallam Duna Rido been the owner of the plot of land allocated to him by Kaduna State Government with Certificate of Occupancy No. NC. 7719.
5. 1st Defendant denies the averment contained in paragraph 6, 7 and 8 of the statement of claim and states that upon his acquisition of the plot of land through the issuance by the Governor of Kaduna State in his favour, there were a few wild mango trees on the land but certainly there was no piggery, poultry, house or any kind of structure or building whatsoever on it as the plot was a bare

plot of land and nobody was in quiet, actual, constructive or any kind of possession whatsoever and nobody was on the piece of land whether as worker or trespasser.
6. The 1st Defendant does not know the person referred to in paragraph 9 of the statement of claim as such is not in position to deny or admit the averment contained in paragraph 9 of the statement of claim, but in response to paragraph 10 of the statement of claim 1st Defendant states that nobody was in possession of the land when Kaduna State officials surveyed, laid out the entire area including the land in dispute, planted beacons and the Kaduna State Governor issued State Certificate of Occupancy to the 1st Defendant, and 1st Defendant upon receipt of the Certificate of Occupancy entered into the land after fulfilling all necessary conditions until he was invited by the police at the behest of the Plaintiffs in 2004.”

It is clear from the pleadings above, that the Appellant did not join any issues in his Statement of Defence on the identity of the land in dispute. I thus agree with the lower Court that the Appellant, in the entirety of his Statement of Defence, did not make the

identity of the land an issue between the parties and cannot belatedly allege the same. The fact that there was a dispute as to whether there were economic trees on the land or merely scattered mango trees or whether or not part of the land was taken up by the Kachia Road or not, does not, I hold, qualify as a challenge to the identity of the land. Challenge to identity must be specific, I hold and not a mere dispute regarding the ownership of the land.

I accordingly hold that from the state of the pleadings of the parties at the trial Court, the identity of the land was not in dispute and thus resolve the first issue for determination against the Appellant.

The 2nd issue for determination is:
Whether the 1st Respondent has identified the land in dispute with definite precision or certainty to warrant the trial Court entering judgment in his favor.

The Appellant’s Counsel, arguing this issue, has submitted that in an action for declaration of title to land, the first responsibility of the Plaintiff is to show with certainty the boundaries of the land he is claiming and also its exact dimensions and where he fails to do so, his case

should be dismissed. He cited Olufosoye V Olorunfemi (1989) 20 NSCC (pt 1) 21.

Counsel argued that the 1st Respondent did not describe the boundaries of the land he is claiming with certainty to warrant the trial Court entering judgment in his favor. He contended that the 1st Respondent only tried to describe the location of the land when he stated that it is along the Kachia Road beside the hill after Mbere farm towards the intersection of the Eastern Bye-pass Mararaban Rido and not the boundaries. He submitted that this description which was relied upon by the trial judge does not satisfy the standard laid down in Iordye V Ihyambe (2001) FWLR (PT. 31) 2881 at 2887. He contended further that the 1st Respondent could not locate the land he is claiming on Exhibit P1 which is the survey plan of the entire area and urged the Court to hold that the 1st Respondent did not identify the land he is claiming, to warrant the trial judge entering judgment in his favor.

The 1st Respondent’s Counsel however submitted that the 1st Respondent has sufficiently proved the identity of the land in dispute unequivocally and beyond question and that the Appellant and the

Court are without doubt as to its identity. He referred to Paragraphs 6, 7 and 8 of the 1st Respondent’s Statement of Claim on Pages 5 & 6 of the Records (Exhibit P1), which is the Certified True Copy of the Survey of TPO 542a ON TOPO SHEET 145, and also Exhibit P2, which is the annexure attached to the certificate of occupancy granted to the Appellant by the 2nd Respondent in a sketch plan. He relied on the case of Aniete Peter Etim & Ors v Edet Effiong Umoh & Ana (2014) LPELR – 22730.

It is without doubt the law, as submitted by the Appellant’s Counsel that before a declaration of title to land is decreed, the land to which it relates must be ascertained with certainty, establishing the identity of the land in dispute. The onus is on the Plaintiff to prove title to a defined area to which the declaration can be attached – Nwabuoku v. Onwordi (2006) All FWLR Part 331 Page 1236 at 1246-1247 Para E-C per Tobi JSC; Isaac v. Imasuen (2016) 7 NWLR Part 1511 Page 250 at 266 Para C-D; (2016) All FWLR Part 823 Page 1894 at 1903 Para G-H per M.D. Muhammad JSC.

The 1st Respondent, in Paragraphs 5-7 of his Statement of Claim

described the land in dispute as a plot of land:
“along Mararaban-Rido Kachia Road, immediately beside the hill after Mbere Farm towards the intersection of the Eastern Bye Pass Mararaban Rido, Kaduna within the urban area of Kaduna.”
I agree with the lower Court that this is sufficient description of the land.
Indeed, this description formed the 5th prayer granted by the trial Judge, to wit:
“I grant a declaration that the Plaintiff is the person in whom plots at Maraban Rido Kaduna immediately after the hill side by the Mbere Farm were vested immediately before the commencement of the Land Use Act, 1978 and consequently is deemed to be and still is holder of the aforesaid as if a statutory right of occupancy has been issued to him by the Governor of Kaduna State.”

I also agree, as held in the resolution of issue 1 above, that the identity of the land was not an issue in the pleadings of the parties. The fact that the 1st Respondent was unable to pinpoint the area in the survey plan, does not mean that the area is unascertainable. A survey plan is an expert document that requires one knowledgeable in survey

plans to decipher. The 1st Respondent has not put himself out as a Surveyor. I can thus not resolve the inability of the 1st Respondent to identify the land in dispute in Exhibit P1, the “Medium Residential Layout Plan near Rido Village in Kachia Local Government Area”, against him.
As stated under Issue 1 above, the fact of whether there were different economic trees, as contended by the 1st Respondent, or only wild mango trees, as argued by the Appellant, is a question of weight in the determination of special damages to award and not the identity of the land. In any event, it is settled law that where parties are ad idem on the identity of the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal. See Ojo v Azam (2001) 4 NWLR Part 702 Page 57 at 68 Para C per Onu JSC; Atanda v Iliasu Supra.

I accordingly agree with the lower Court that the 1st Respondent identified the land in dispute with sufficient precision and certainty to warrant the trial Court entering judgment in his favor. I again resolve the 2nd issue for determination against the Appellant.

The 3rd issue for determination, is:
Whether the failure of the 1st Respondent to show by credible evidence how Mallam Duna Rido got the land before selling it to his father, is not fatal to his case, the Appellant having challenged the title of the said Mallam Duna Rido over his land.

Learned Counsel to the 1st Appellant submitted that where a Plaintiff traces his root of title to a particular person and the root of title of the person from whom the Plaintiff traced his title is being challenged as in this case, for the Plaintiff to succeed, he must establish with credible evidence how the person got the land before it was sold to him. He cited Nwadiogbu vs. Nnadozie (2001) 12 NWLR (Pt 727) 318 at 332 – 333 para D – A; Lawson v. Ajibulu (1997) 6 SCNJ, at 25 and Lawani Alli & Anor Vs Chief Gbadamosi Abasi Abus Alesinloye & Ors (2000) 4 SCNJ 264.

He submitted that in the instant case, the 1st Respondent only pleaded that Mallam Duna Rido sold the land to his father but never stated how Duna Rido derived ownership of the land. He accused the trial Judge of jettisoning these authorities and erroneously holding

that the title of Mallam Duna Rido is irrelevant in this matter because prior to the enactment of the Land Use Act in 1978, Duna Rido had already transferred the land to the father of the 1st Respondent and therefore it is the father of the 1st Respondent that is the customary title holder of the land.

In his response, the learned Counsel to the Respondent, citing the cases of Provost Lagos State College of Education & Ors. v. Dr. Kolawole Edun & Ors. NSCQCR Volume 17 (2004) P. 370 and Samuel Ononuju v A-G Anambra State NSQLR Vol 38 (2009) Page 1111, submitted that the 1st Respondent as a holder/occupier of the land since 1975, before the promulgation of the Land Use Act 1978, has a deemed right of occupancy over the land, pursuant to Section 28 of the Land Use Act Supra.

Pointing to the evidence adduced by the 1st Respondent and his witnesses, he submitted that the 1st Respondent had proved sufficiently at the lower Court how his father came about the title, coupled with the receipt issued to his father by Mallam Duna Rido. He submitted that the grant to the Appellant was not for overriding public interest, citing the case of

C.S.S. Bookshops Ltd V. The Regd Trustees of Muslim Community in Rivers State & 3 Ors NSCQLR Vol. 26 (2001) OG 477 at 504. He also argued that the 1st Respondent was not notified that his right was being revoked in accordance with Section 28 (6) and (7) of the Land Use Act, submitting that the revocation of the 1st Respondent’s deemed right of occupancy is thus a nullity since a valid notice was not given to him or any other person. He urged the Court to affirm the finding and decision of the learned trial judge.
The lower Court, on this issue, held as follows:
“Having considered the Plaintiff’s case and the narrative as well as Exhibits P6 and P6A, I see that the sale transaction between Duna Rido and late Daniel Nache took place since 1975 and before the promulgation of the Land Use Act in 1978. The Defendant is in agreement with the Plaintiff that a Customary tenant or occupier of land before the promulgation of the Land Use Act is deemed to be the owner of such land i.e. the deemed grantor.
The first Defendant also concedes that the precondition for revocation of the right of such a deemed grantee or holder of a customary right of

occupancy must be for overriding public interest and such a holder must first be served with a revocation notice and paid compensation.
Thus by the operation of the Land Use Act, it is the late Daniel Nache Duna that became the statutory holder of the customary title and not Mallam Duna Rido. Thus for the purpose of the Act which the Plaintiff is relying on as ascribing the status of customary holder of a right of occupancy, the root of title of Mall Duna Rido becomes irrelevant in this matter. The 1st Defendant is claiming title with effect from 1987. As at 1987, Mall Duna Rido was no longer the customary land owner of the land in issue, having transferred it to the Plaintiff’s late father since 1975 i.e. 12 years before. It would have been a different case if the 1st Defendant had acquired title before the sale to the Plaintiff’s late father or if the sale was after 1978. Furthermore, the first Defendant under cross-examination clearly admitted that someone was farming on the land before he went to apply for a certificate of occupancy over the land. He also admitted that he did not buy the land in dispute. He further admitted that he was the

one that identified the land and applied for a certificate of title over it. The first Defendant also admitted that compensation was not paid to the customary land owner, even though he at first said it was paid.
The Plaintiff showed that Mall Duna Rido was the radical title owner and he transferred same to his father since 1975 vide Exhibits P6 and P6A. The evidence showed that the Plaintiff’s father was in peaceful and undisturbed possession until his death in 1997 after which time the present Plaintiff being the first son continued in possession and occupation of the land without disruption until 13th and 14th August, 2004 when the first Defendant entered into the land.
The first Defendant said he was in occupation since 1988 but he did not mention a single act of possession until 2004 when he sent workers to uproot the trees on the land in dispute. On the other hand, the plaintiff gave evidence that his father planted economic trees on the land in issue. The first Defendant admitted there were mangoes on the land which he had removed but said they were “a few wild mangos”.
So to conclude the 2nd issue, I find that this issue

as to the root of title of Duna Rido is not a live issue since by the operation of the Land Use Act. It is the customary owner as at 1978 which is Daniel Nache that was deemed the holder of the customary right of occupancy. It was therefore not Duna Rido that should have been paid compensation if the customary title was to be revoked. It was Daniel Nache.”

Decision
The facts and which were believed by the lower Court, are that the 1st Respondent’s father, Daniel Nache, purchased the land in dispute in 1975 from Mallam Duna Rido. The receipt of purchase, Exhibit P6, translated into English in Exhibit P6A, show that the date of purchase was 18/4/1975. The receipt was signed by the said parties, in addition to three witnesses and also by the Ward Head, named Bissala.

Anyafulu v. Meka (2014) 7 NWLR Part 1406 Page 396 at 411 Para D-F per Aka’ahs JSC.

Where the consideration is a claim of ownership as a deemed grantee, different considerations however apply.
SECTION 34 of the LAND USE ACT of 1978 provides as follows:
1. “The following provisions of this section 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 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 of one hectare in area shall subject to Subsection (6) of this section, 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 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.
6. Paragraph (a) of Subsection (5) of this Section shall not apply in the case of any person who was on the commencement of this Act also the holder of any undeveloped land elsewhere in

any urban area in the State and in respect of such a person all his holdings of undeveloped land in any urban area in the State shall be considered together and out of the undeveloped land so considered together –
a. one plot or portion not exceeding half of one hectare in area shall continue to be held by such a person as if a right of occupancy had been granted to him by the Governor in respect of that plot or portion; and
b. the remainder of the land (so considered together) in excess of half of one hectare shall be taken over by the Governor and administered in accordance with this Act and the rights formerly vested in the holder in respect of such land shall be extinguished.
7. No land to which Subsection (5) (a) or (6) of this section applies held by any person shall be further subdivided or laid out in plots and no such land shall be transferred to any person except with the prior consent in writing of the Governor.
8. Any instrument purporting to transfer any undeveloped land in contravention of Subsection (7) of this section shall be void and of no effect whatsoever in law and any party to any such instrument shall be guilty of an

offence and liable on conviction to imprisonment for one year or a fine of N5,000.
9. In relation to land to which Subsection (5) (a) or (6) (a) of this section 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.”
The nature of a deemed grant was deliberated upon by the Supreme Court in the case of Provost Lagos State College of Education & Ors. v. Dr. Kolawole Edun & Ors (2004) 6 NWLR Part 870 Page 476 at 499 Para B-H per Iguh JSC, reading the lead judgment, as follows:
“There is firstly the statutory right of occupancy granted by a State Governor pursuant to Section 5(1)(a) of the Act and the customary right of occupancy granted by a Local Government under Section 6(1)(a) of the Act. The second classification is the statutory right of occupancy deemed to have been granted by a State Governor pursuant to Section 34(2) of the Act as against the customary right of occupancy deemed to have been granted by a Local Government under Section 36(2).

There therefore exist in both cases of statutory and customary rights of occupancy actual grant as well as deemed grant. An actual grant is naturally a grant expressly made by the Governor of a State or by a Local Government whilst a deemed grant came into existence automatically by the operation of law. See Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1NWLR (Pt. 97) 305; Alhaji Adisa v. Emmanuel Oyinwola and Others (2000) 10 NWLR (Pt. 674) 116 etc.
The respondents in the present case were in exclusive physical possession of the land in dispute and were using the same for agricultural purposes in a non-urban area or village called Otto/Ijanikin, Awori immediately before the commencement of the Land Use Act on the 29th March, 1978. They are therefore deemed holders of customary right of occupancy in respect of the land in dispute by operation of law at the commencement of the Land Use Act, 1978 on the 29th March, 1978. Their deemed grant is no less effective than a customary right of occupancy expressly granted by the appropriate Local Government. Deemed grants, whether of statutory or customary right of occupancy are as valid as express grants and may not be

defeated by any unlawful subsequent dealing in respect of such land by the original owners thereof.”
Underlining Mine.
Section 36 of the Land Use Act Supra is similar to Section 34 of the said Act, the difference being that Section 34 applies to land held in an urban area, while Section 36 applies to land held in a non-urban area.
In Ononuju v A-G Anambra State (2009) 10 NWLR Part 1148 Page 182 at 208 Para B- E Aderemi JSC, also reading the lead judgment, subsequent to interpreting the nature of a deemed grant, held as follows:
“It follows that no one, including the government, can deprive a holder or occupier of a parcel of land unless the land is acquired compulsorily in accordance with the provisions of the Land Use Act e.g. for overriding public interest or for public purpose by the Local Government or State Government. See Sec. 28 (1), (2) and (3) of the Land Use Act; and by virtue of Section 28 (4) of the said Act, payment of compensation is also a condition precedent to the validity of such acquisition. See OGUNLEYE V. ONI (1990) 2 NWLR (pt.135) 745. The fundamental question to now ask is whether there was a proper

acquisition of the land in 1982? Put in another way, was the Notice of Revocation duly served on the appellants as required by law?”
By Section 34 of the Land Use Act Supra, the occupier of land before the promulgation of the Land Use Act 1978 will continue to enjoy such rights and privileges as if a statutory right of occupancy had been granted to him by the State Government, which he cannot be deprived of, except the same is acquired compulsorily in accordance with the said Act.
It has not been said by the Appellant that compensation was paid to any occupier of the land.
The question of compensation came up when the 1st Respondent stated in his deposition that neither he nor his father were given notice that their title over the land was being expropriated by the State Government, neither were they or any one paid compensation over the land. He was not cross examined on this assertion. The Appellant in his Statement of Defence merely countered that they were not entitled to notice of the grant to him (Appellant), neither were they entitled to compensation, not being the owners of the land in dispute. He further averred that anybody that

was entitled to compensation was duly paid before he entered the plot.
Under cross-examination, however, the Appellant stated that he paid compensation to the Ministry of Lands and Survey for the land. On being shown pages in Exhibit P2, which are copies of documents and correspondence at the Ministry of Lands and Survey with regard to the land, he agreed that compensation had not been paid to the customary owner as at 21/2/11. As also admitted by the Appellant under cross-examination “Somebody was farming on the land as at the time I was processing C of O on the land.”
The Act is clear as to who is a deemed holder. As aforesaid, it is the person in occupation as at the time of the promulgation of the Act in 1978, which, by the evidence before the lower Court, and believed by that Court, was the 1st Respondent.
The incidents of traditional ownership and how the vendor of the 1st Respondent’s father got the land, thus do not come into consideration in the application of the entitlement of the occupier to a deemed grant, pursuant to Sections 34 and 36 of the Act, I hold. I thus agree with the lower Court that the 1st Respondent

was a deemed holder of a Certificate of Occupancy over the land, which holding is protected by Section 34 of the Land Use Act 1978. No revocation or compulsory acquisition of the land having been proved to have been done in this case, it follows that the grant of title to the Appellant could not but be null and void. See Dantsoho v. Mohammed (2003) 6 NWLR Part 817 Page 457 at 485-486 Para C per Katina-Alu JSC (as he then was); Malami v Ohikhuare (2019) 7 NWLR Part 1670 Page 132 at 161 Para B-C per Aka’ahs JSC; CSS Bookshops Ltd v. Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR Part 992 Page 530 at 567-568 Para H-F per Mohammed JSC (as he then was).
I again resolve the 3rd issue for determination against the Appellant.

The 4th issue for determination is:
Whether the 1st Respondent specifically pleaded and proved the monetary damages of N700,000.00 (Seven Hundred Thousand Naira) and N90,000.00 (Ninety Thousand Naira) against the Appellant, to warrant the grant in their favour and whether this claim was made in the alternative?

The learned Counsel to the Appellant has submitted that the claim of N700,000.00 by the

1st Respondent, being the value of the trees the Appellant allegedly cut down is a claim for special damages which the law provides must be proved specifically. He argued that for a valuation to be accepted by the Court, it must be done by an expect in the field who will give the basis of his value. He argued further that the trial judge was in error to have relied on a valuation done by a person who is not an expert in the field of tree valuation or a horticulturist and who did not state how he arrived at the value given to each of the trees. He urged the Court to hold that the 1st Respondent was not able to prove the special damages of N700,00.00.

On the claim of N90,000.00 per annum being loss of earning from the economic trees from 2004 until judgment, Counsel said this is another form of special damages which must be specifically proved with particulars. He argued that the 1st Respondent cannot claim the total sum of what he allegedly realized from 10 (ten) mango trees without stating how much he gets from each of the mango trees before adding up the total. He also contended that the claim of the sum of N700,000.00 and N90,000.00 was a claim made in

the alternative and that the Court cannot grant the main claims as contained in reliefs 1 to 6 and also the alternative claims which are reliefs 7 to 10. He relied on the case of Ibafon Co. Ltd v. Nigerian Ports Plc (2000) 8 NWLR Part 667 Page 86 at 103 Para A.

In response, the learned Counsel to the 1st Respondent submitted that the 1st Respondent has been able to sufficiently prove his claim stipulated above and that the findings of the Court are determined by the claim and evidence before it. He argued that the Appellant never testified to the fact that there are no mango trees, amongst Guava and locust beans trees planted on the land in dispute. He further argued that the trial Court has the discretion as to the quantum of damages it would award in a claim of damages for trespass and an appellate Court will not interfere with an award of damages by a trial Court unless in a situation as enumerated in the case of Union Bank of Nigeria V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) Pt 559 at 585. He also submitted that there are instances where an appellate Court can interfere with the findings of fact by a trial Court, however where a Court of trial

unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for that of the trial Court. He submitted that the trial Court came to its conclusion in awarding the 1st Respondent’s claim against the Appellant after evaluating the evidence before it and the identity of the land between the parties was never in dispute. This Court cannot re-evaluate such findings, he said, relying on Omoregie v. Idugiemwenye (1985) 6 SC 150.

I will start with the 2nd half of the issue, which is whether the Court could award monetary damages to the 1st Respondent and whether this claim was in the alternative?
The claim of the 1st Respondent before the lower Court is the following:
1. A declaration that the purported revocation by the 2nd Defendant of the right of occupancy of the Plaintiff in and over the said plots at Maraban-Rido Kaduna granting of same to the 1st Defendant with Certificate of Occupancy No. NC7719 aforesaid is null and void and of no effect and thereof are:
(a) Not for the public purposes envisaged by the Land Use Act, 1978.
(b) Ultra vires.

(c) Capricious and
(d) An abuse of power.
2. A declaration that the purported revocation of the alleged right of occupancy in and over plots at Maraban- Rido Kaduna is unconstitutional, null and void and of no effect in that it is contrary to the fundamental rights of the Plaintiff who was not heard or given opportunity to be heard before the purported revocation or grant to the 1st Defendant.
3. A declaration that the grant of Certificate of Occupancy to the 1st Defendant by the 2nd Defendant is inoperative, illegal, null and void and of no effect in that the said grant of Certificate of Occupancy.
a. Is ultra vires.
b. Is not for public envisaged by the Land Use Act, 1978.
c. Was done in violation of the provision of Section 28 of the Land Use Act is invalid, null and void and did not confer any valid title on the 1st Defendant.
4. An order setting aside the said grant of Certificate of Occupancy by the 2nd Defendant to the 1st Defendant.
5. A declaration that the Plaintiff is the person in whom plots at Maraban-Rido (sic) Kaduna immediately (sic) the hill side by the Mbere Farm were vested immediately before the

commencement of the Land Use Act, 1978 and consequently is deemed to be and still is Holder of the aforesaid as if a statutory right of occupancy has been issued to him by the Governor of Kaduna State.
6. A declaration that the 2nd Defendant has no power under the Land Use Act to seize the property of one citizen and hand it over to another citizen for partly personal and private purpose.
OR ALTERNATIVELY
7. An order invalidating, setting aside and nullifying Certificate of Occupancy No. NC7719 issued to the 1st Defendant by the 2nd Defendant upon which the land of the Plaintiff was expropriated for the failure by the 1st Defendant to complete building a Petrol Filling Station within 2 years of the date of the commencement of the right of occupancy and failure of the 1st Defendant to pay ground rent amounting to N181,815.00 as at 2010 which failure vitiated the term of the grant.
8.1. N700,000.00 being special damages for unlawful destruction of the economic trees of the Plaintiff by the 1st Defendant.
8.2. N900,000 per annum being loss of earning from the economic trees from 2004 until the judgment sum is paid.
8.3. Interest on

the aforesaid sum at the rate of 10% per annum until Judgment is delivered and the judgment sum fully liquidated.
9. An injunction to restrain the Defendants, their servants, agents and functionaries from unlawfully interfering in any way whatsoever with the Plaintiff’s occupation and enjoyment of the said properties and/or ejecting or attempting to eject the Plaintiff, its servants, agents and workers from the said properties.
10. Costs.

The lower Court, in its judgment, as aforesaid, granted all the claims, save the 7th claim, ordering as follows:
“I therefore grant prayers 1, 2, 3, 4, 5, 6, 8.1, 8.2, 8.3, 9 and 10 of the Plaintiff’s claims as set out hereunder.
Consequently, judgment is entered for the Plaintiff and I grant the following orders:
1. I declare that the purported revocation by the 2nd Def., of the right of occupancy of the plaintiff in and over the said plots at Maraban Rido Kaduna and granting of same to the 1st Defendant with certificate of occupancy NO. NC7719 aforesaid is null and void and of no effect because it was not for the public purposes envisaged by the Land Use Act, 1978 and therefore

Ultra vires.
2. I declare that the purported revocation of the alleged right of occupancy in and over the said plot at Maraban Rido Kaduna is unconstitutional, null and void and of no effect in that it is contrary to the fundamental rights of the Plaintiff who was not heard or given opportunity to be heard before the purported revocation or grant to the 1st Defendant.
3. I declare that the grant of Certificate of Occupancy to the 1st Defendant by the 2nd Defendant is inoperative, illegal, null and void and of no effect in that the said grant of certificate of occupancy:
b. Is ultra vires
c. Is not for public purpose envisaged by the Land Use Act, 1978
d. Was done in violation of the provision of Section 28 of the Land Use Act is invalid, null and void and did not confer any valid title on the 1st Defendant.
4. I grant an order setting aside the said grant of certificate of occupancy by the 2nd Defendant to the 1st Defendant.
5. I grant a declaration that the Plaintiff is the person in whom plots at Maraban Rido Kaduna immediately after the hill side by the Mbere Farm were vested immediately before the commencement of the Land

Use Act, 1978 and consequently is deemed to be and still is holder of the aforesaid as if a statutory right of occupancy has been issued to him by the Governor of Kaduna State.
6. I declare that the 2nd Defendant has no power under the Land Use Act to seize the property of one citizen and hand it over to another citizen for partly personal and private purpose.
8.1. I award N700,000.00 being the special damages for unlawful destruction of the economic trees of the plaintiff by the 1st defendant.
8.2. I also award N90,000.00 per annum being loss of earning is from the economic trees from 2004 until the judgment sum is paid.
8.3. I award interest of the aforesaid sum at the rate of 10% per annum from date until the judgment sum is fully liquidated.
9. I grant an injunction to restrain the defendants, their servants, agents and functionaries from unlawful interfering in any way whatsoever with the plaintiff’s occupancy and enjoyment of the said properties and/or ejecting or attempting to eject the plaintiff, it servant, agents and workers from the said properties.
10. Cost of this suit is also awarded.”

What the Court did, from the foregoing, was to treat only Prayer No. 7 in the Statement of Claim as the alternative claim, and which it refused to grant, having granted Prayers 1-6. It thence proceeded to grant the claim for damages, interest and costs.

Admittedly, the 1st Respondent should have defined with clarity whether the claims for damages, interest and costs were in the alternative. I, however, have no reason to take a stand contrary to that taken by the lower Court. It indeed would have been incongruous to have treated the claim for damages, interest, injunction and costs as an alternative claim to the claims for declaration of title and other prayers in Nos 1-6, as a claim for injunction necessarily follows a suit alleging wrongful acquisition or deprivation of possession or title. Also consequentially following, is a claim for damages and costs.

Thus, while I agree that Relief No. 7 was an alternative claim, and which the lower Court rightfully refused to grant, I have no reason to fault the reasoning of the lower Court that Reliefs Nos 8-10 were not alternative to the principal claim in Claims 1-6.

The next question is whether the award of

damages was proper, in view of the pleadings and evidence before the Court.

The trial Court, in its judgment, referred to the evidence of the 1st Respondent, with respect to the 20 mango trees, 20 orange trees and 15 locust beans trees but which the Appellant denied cutting except for “a few wild” mango trees. It also referred to the statement under cross examination by the 1st Respondent that he could no longer remember the number of trees cut down as it had taken a long time but held, “This however does not negate the fact that the number of trees cut down were well stated in his sworn deposition which he adopted as his evidence”.
The Court further proceeded to hold:
“I find and hold that the Plaintiff has proved that the 1st Defendant through his workers destroyed his 20 mangoes, 20 orange trees and 15 locust bean trees worth N700,000. With regard to the loss of earnings, the Plaintiff stated that he lost earning on the economic trees per annum as follows; 30,000 for the mangoes, 40,000 for the locust beans and 20,000 for the oranges. See paragraphs 34-35 of the Plaintiff’s deposition.”

I agree with the Appellant’s Counsel that special damages must be pleaded and strictly proved. See B.B Apugo & Sons Ltd v Orthopedic Hospitals Management Board (OHMB) (2016) 13 NWLR Part 1529 page 206 at 256 Para F-H per Kekere-Ekun JSC; Union Bank Plc v. Chimaeze (2014) 9 NWLR Part 1411 Page 166 at 185 Para A-E; (2014) All FWLR Part 734 Page 65 Para G-H per M.D. Muhammad JSC quoting from Neka B.B.B. Manufacturing Co. Ltd v. African Continental Bank Ltd (2004) 2 NWLR Part 858 Page 521 at 540-541 Para H-A per Pats-Acholonu JSC.

I also agree that a Court can rely on the mere ipse dixit of a Plaintiff who is not an expert, to assess damages. However, such evidence can only be relied upon if it is not challenged and contradicted. See Eneh v Ozor (2016) 16 NWLR Part 1538 Page 219 at 236 Para F-G per Sanusi JSC.

In the instant case, the 1st Respondent pleaded the said numbers noted by the trial Judge in his pleadings and in his Witness Deposition. However, under cross-examination, his response to questions put to him are as follow:
“I cannot remember how many trees the Defendant cut down. The land was densely populated with economic trees

planted by my father so I cannot say now how many of each tree were cut down as it has taken a long time.”

The only deduction from his failure to confirm the number of trees, is that the 1st Respondent has failed to prove this claim for special damages.

The lower Court was thus in error, I hold, to have awarded the sum claimed by the 1st Respondent in his Statement of Claim, the number of trees having been successfully challenged by the Appellant’s Counsel under cross examination.

What however is clear and as believed by the lower Court is that the Appellant, also by his admission, cut down trees on the land in question, which he alluded to be “wild mango trees”. Also, by his admission, at the time his workers were on the land, there was already someone farming on the land.

In a case as this, where there is evidence of damage suffered, incapable of exact calculation, the law allows the Court to award general damages. See Union Bank Plc v. Chimaeze (2014) 9 NWLR Part 1411 Page 166 at 192-193 Para H-A; (2014) All FWLR Part 734 Page 48 at 72 Para F-G per Ariwoola JSC.
Thus while I set aside the award of N700,000.00

as special damages and N90,000.00 per annum as loss of earning from 2004 until judgment, together with the interest thereon, I shall substitute in lieu thereof an award of N200,000.00 as General Damages. This Court, by Section 15 of the Court of Appeal Act 2004, is entitled to take whatever step the trial Court ought to have taken. See also Nwoye v. Federal Airports Authority of Nigeria (2019) 5 NWLR Part 1665 Page 193 at 207 Para F-G per Sanusi JSC; Wassah v. Kara (2015) 4 NWLR Part 1449 Page 374 at 397 Para A-D; (2015) All FWLR Part 769 Page 1034 at 1053 Para D-F per Rhodes-Vivour JSC.

In consequence, this issue succeeds in part. While I affirm the Orders of the lower Court granted in Relief Nos 1-6 and 9, I set aside the awards in Nos 8.1, 8.2 and 8.3. I award interest on the General Damages of N200,000.00 at the rate of 10% per annum from today until payment is effected.

In conclusion, this appeal succeeds in part, as above stated. Parties shall bear their respective costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my Lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA and I agree with my

Lord’s resolution of all the issues in this Appeal. I have nothing to add to my Lord’s exhaustive consideration of the issues. I agree that the appeal succeeds in part for the reasons given by my Lord and also agree with the orders made by my Lord.

SAIDU TANKO HUSSAINI, J.C.A.: I had the privilege of reading in draft, the lead judgment delivered by my Lord, Oludotun Adebola Adefope – Okojie, JCA, with whom I agree with the reasoning and conclusion. This appeal succeeds in part and same is allowed. Parties are to bear their respective costs.

Appearances:

Isaac P. Dapum, Esq. For Appellant(s)

Victor Olisah, Esq., with him, Jeremiah Adam Esq. – for the 1st Respondent
2nd – 4th Respondents absent and unrepresented For Respondent(s)