Peter Pav Dzungwe V. Oram Gbishe & Anor (1985)

LawGlobal-Hub Lead Judgment Report

O. KAZEEM, J.S.C.

This is an appeal against the decision of the Court of Appeal, Kaduna delivered on 21st April, 1983 which reversed the judgment of the High Court, Makurdi of 18th November, 1980. At the High Court, the plaintiff, one Peter Par Dzungwe was granted perpetual injunction against the two defendants, (Ornam Gbishe and Igudu Gavar), their servants and or agents restraining them from further trespassing on his land situate in Ute Clan in the Vandeikya Local Government Council Area of Makurdi in Benue State.

Because of the issue of law raised in this appeal, it is important to give the background antecedent to the whole action. Prior to this High Court Case, the plaintiff originally instituted an action on the 6th of May, 1976 against the 1st defendant at the Grade II Area Court in Tse-mker claiming his own portion of his father’s farmland; but that action was withdrawn to enable the 2nd defendant to be joined as a party to the suit.

However, in a new Suit No. CV.241/77 brought at Grade 1 Area Court Vandeikya, the plaintiffs claim was for re-possession of the same parcel of land from both defendants; and the trial commenced on 26th August, 1977. The plaintiffs testimony at that trial was that he was forced to leave his parcel of land for Gboko during the Tiv riot of 1964; and when he returned in 1968, he found both defendants occupying it. When he asked them to quit, they refused. On the other hand, the 1st defendant claimed ownership of the land and he said that his grandfather and one Gavar farmed on the land before him. Throughout the trial, plaintiff said nothing about any Certificate of Occupancy in respect of the land which he applied for or obtained. At the end of the trial, the Area Court having considered the evidence adduced by the parties and their witnesses, decided the matter in favour of the defendants and dismissed the plaintiffs claim on 17th September, 1977 – See Exh. C.

Against that judgment, of the Area Court 1 in Vandeikya, the plaintiff appealed to the High Court of Justice, Makurdi but that appeal was dismissed on 20th May, 1978 (See Exh. 0). While the proceedings in the Area Court 1 and the appeal therefrom at the High Court were in progress, a Certificate of Occupancy had in the meantime been issued in favour of the plaintiff on 28th May, 1977 – See Exh. B. It is relevant to note here that shortly before the action was first instituted against the 1st defendant on May, 6th 1976, the plaintiff applied to the Ministry of Lands and Survey, Benue State, on 3rd February, 1976for a Certificate of Occupancy in respect of the same piece or parcel of land; but he did not disclose to the Ministry that there was any dispute over the land. However, on 5th November, 1976, he received a letter – Exh.A from the Ministry informing him that approval of a grant of a right of occupancy in respect of a plot of 44.08 Acres in Obudu Topo Sheet had been made in his favour subject to certain conditions.

It is also pertinent to mention that while the appeal was pending before the High Court the plaintiff did not disclose to that court that he had already obtained a Certificate of Occupancy in respect of the land. Moreover, shortly before the appeal was dismissed at the High Court, the plaintiff again instituted a fresh action against the defendants founded on the Certificate of Occupancy as follows:-

“1. The Plaintiff is and was at all material times the, owner and occupier of a piece and parcel of land covered by the Right of Occupancy No. BN 611 dated 30th May, 1977 and registered as No. 157 at page 157 in volume 1 of the C of 0 of the Land Registry in the Office at Makurdi, See Sketch Plan Annexure ‘A’ attached.

2. The defendants have wrongfully entered and remained on the said land, and notwithstanding repeated requests to vacate and deliver up the same, all the defendants have wrongfully failed and refused to do so.
3. The defendants threaten and intend unless restrained by this Honourable Court, to continue to remain in wrongful occupation of the said land and to trespass thereon.

AND the plaintiff claim jointly and severally:-

(a) a perpetual injunction to restrain ‘the defendants (by themselves, their servants or agent or otherwise however) from remaining on or continuing to remain in occupation of the said land;

(b) the sum of N3,000.00 as special damages for the destruction of 20 fruiting citrus trees and 30 pinepaw stands;

(c) the sum of N1,000.00 as general damages;

(d) An order for possession.

In his Amended Statement of Claim, the plaintiff merely referred to how he applied for and obtained the Certificate of Occupancy on which he founded his claims without disclosing the fact that he had lost two legal proceedings to the defendants in respect of the same land.

However, in their Amended Statement of Defence and Counterclaim, the defendants pleaded the judgment in the two previous proceedings with the plaintiff as constituting estoppel per rem judicatam. They also averred therein that they were not aware that the plaintiff had a statutory Right of 6ccupancy in respect of the land, until they were served with his statement of claim in the action; and that the Certificate of Occupancy must have been obtained by fraud. The plaintiff did not file any Reply or Defence to those averments.