Mrs Hawa Gankon V. Ugochukwu Chemical Industries Ltd. (1993)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C. 

On the 30th October, 1988, S.U. Mohammed, C.J. dismissed the claim of the plaintiff now the appellant, against the defendant, who is now the respondent. The claim is for,

“1. A DECLARATION that the plaintiff is the rightful and beneficial owner of a piece or parcel of land measuring 100 feet by 64 feet and known as Plot No. E 1A and 1B, lying and being at Ungwar Mission, Makera Kaduna-South in Kaduna Local Government Area and subject of Certificate of Occupancy No. 031198 dated 28th of October, 1982 in volume X at page 232 of the Lands Registry, Kaduna Local Government, Kaduna. The said Certificate of Occupancy is by virtue of Kaduna State Legal Notice KDSLN. No. 8 of 1980 made pursuant to the provisions of Section 3 of the Land Use Act, 1978 and titled ‘Kaduna State (Designation of Land in Urban Area) Order, 1980 (as amended); within an Urban Area whereof the High Court is seized with jurisdiction over same.

2. A PERPETUAL INJUNCTION restraining the defendant, its agents, servants or privies whomsoever from committing acts of trespass on the said piece of land or in any way interfering with the plaintiff’s rights or interest therein.”

On the 10th July, 1988, Uthman Mohammed J.CA., of the Court of Appeal, Kaduna Division, with whose judgment, Aikawa, and Achike J.J.C.A. concurred, dismissed the appeal of the appellant against the judgment of S.U. Mohammed C.J. of the High Court of Kaduna State sitting at Kaduna. This appeal is against the judgment of the Court of Appeal.

The facts of the case as disclosed by the pleadings and evidence at the trial are that appellant claimed that she was one of a number of persons living in an area acquired by the Federal Government in 1973 for the establishment of a Fertilizer Industry. She was among those, who were as a consequence of the displacement, compensated by the allocation of alternative plots of land by the Kaduna Local Government. She was allocated plots E 1A and E 1B. She had since occupied those plots and still remains in occupation. The parcels of land so allocated measure 100 ft by 64 ft by 94 and are situate at Ungwar Mission Ward, Makera, Kaduna-South.

On the 28th October, 1982, the Kaduna Local Government granted her a Certificate of Occupancy No. 031198 covering the piece of land. In her testimony appellant tendered and was admitted as Exhibit 1, a certificate by the District Head of Makera that she was given Plots No. E1Aand E1B on 1719n3 and that she was now the rightful owner of these plots. She also tendered as Exhibit 2, a Certificate of Occupancy indicated above, issued to her by the Kaduna Local Government. Appellant fenced the plots in 1974 and built a house thereon. She now relies for her title to these plots on these documents.

Appellant said in evidence that she first observed respondent near her plot in 1974. They had fenced their plots with barbed wire. In 1982, she noticed respondents pulling down her own wall and barbed wire fence when they were in the process of erecting another gate on her plot. She confronted respondent’s Manager, who told her that the plot belonged to them and asked her to vacate the plots. Respondents erected big iron-bars inside her plots to prevent entry into the plots.

The Lands Officer of Kaduna Local Government in charge of processing applications for plots testified for the appellant. He stated, relying on records in their office, that on 3/7/82, appellant applied for a customary right of occupancy in respect of the two plots on the strength of the letter given to her by the District Head of Makera. The Kaduna Local Government in 1982 issued her with a Kaduna Local Government right of occupancy over plots E1A and E1B.

The case of the respondent is different. They applied in 1977 for an Industrial Plot, which was only granted in 1979. Also, a statutory right of occupancy No. 4494 dated 19/6/79 was issued by the State Government. The respondent was granted a piece of land measuring 8.57 acres. When the respondent observed in 1982 that appellant was trespassing into its property, it wrote complaining to the Permanent Secretary, Ministry of Land and Survey, Kaduna, pleading with the Ministry to arrest the situation. On investigation by the Ministry of Lands and Surveys, it was discovered that appellant was among the over 200 people who had occupied about 1/3 of the 8.57 acres of land granted to respondent.

Respondent then asked appellant not to do anything to disturb the access road of the company. Appellant notwithstanding this warning proceeded to block the access road to the respondent/company’s factory, thereby rendering access to the company’s premises impossible. Respondent/company denied committing trespass on appellant’s land. They are claiming the piece of land in dispute.

The case of the parties properly considered appears to rest on mutual claims to title to the land in dispute. Appellant’s contention is that her two plots are distinct from and are not included in the 8.57 acres claimed by the respondent. Respondent’s contention is that the land in dispute is part of the 8.57 acres allotted to them and covered by the Certificate of Occupancy issued to the company. Both parties rely on their titles to different granting authorities. Appellant relied on Exh 1, an allocation by the District Head of Makera in 1973 and a customary right of occupancy, Exhibit 2 granted by the Kaduna Local Government in 1982. Whereas respondent relied on an allocation by the Kaduna State Government in 1979 and a Certificate of Occupancy Exhibit 5, the same year by the State Government.

At the trial the learned Chief Judge of Kaduna State stated that he was concerned with the determination of what he regarded as the crucial question, namely, as he put it,

“Who was the first in time In other words who was the first to be given title” (See p. 45 lines 1972 record of proceedings)

In answering this question on which he relied for the determination of the case before him, he held that the document Exhibit 1 by which the District head of Makera, who had no powers to do so, certified that appellant was the owner of the plots stated therein, conferred no title. There was no evidence before him that the District Head had such powers. On the other hand, Exhibit 5 issued by the Kaduna State Government in 1979 conferred title on respondent/company. Exhibit 2 was issued to appellant by the Kaduna Local Government on 20/10/82 to take effect on 3/7/82. At the time of the issue of Exhibit 2, Makera was in an Urban Area and so designated by the Kaduna State (Designation of Land in Urban Area) Order 1980 and outside the jurisdiction of the Local Government. The Kaduna Local Government therefore had no statutory power to grant a right of occupancy for land in that jurisdiction.