Emy J. Bila Auta V. Chief Willy Ibe (2003)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is an appeal against the decision of the Court of Appeal Jos Division, by the plaintiff who won her case in the High Court of Taraba State holden at Jalingo, Adamu Aliyu CJ; wherein the plaintiff in her amended statement of claim claimed against the defendant as per paragraph 15 thereof as follows:-

“Whereof, the plaintiff claims the following reliefs:-

(a) An order of declaration that the plaintiff is the owner in possession of the piece or parcel of land lying and situate at plot No. 1(B) Road, Misc JP3 layout, Jalingo.

(b) An order of perpetual injunction restraining the defendant his agents, servants, privies, assigns or functionaries from further acts of trespass on the plaintiff’s land.

(c) An order of demolition of the purported illegal structures raised on the plaintiff’s plot.

(d) An order of N50,000.00 as general and aggravated damages for unlawful trespass and erection of illegal structure on the plaintiff’s land.”

After the closing of pleadings including amendment, the trial commenced in which both parties led evidence and tendered documentary evidence, the court also visited the disputed land. In its judgment delivered on the 29/11/1994, the learned Chief Judge found for the plaintiff thus:-

“On the whole I am satisfied that the plaintiff has title to the plot situate at No. 1B Road JP 3, Jalingo and proceed to enter judgment for her in terms of her claims and hereby make the following orders:-

1. The plaintiff is declared as the rightful owner of Plot 1B Road JP 3 Sintoli Ward, Jalingo.
2. The defendant should demolish all structures erected by him on the said plot, and leave the plot vacant for plaintiff’s full possession.
3. The defendant should pay the sum of N20,000.00 to the plaintiff as damages.”

The defendant felt aggrieved with the decision and appealed to the Court of Appeal Jos Division. At the end of the hearing of the appeal, Edozie, J.C.A (as he then was), in his judgment with which Oguntade and Opene, JJCA concurred, observed:-

“It is also well settled that a party seeking a declaration of right of occupancy over a piece or parcel of land must be able to identify that piece or parcel of land failing which his case will be dismissed. This is the view taken by the Supreme Court in the case of Epi v. Aigbedion (1972) 10 SC 53 at 53 …

In the case in hand, the respondent being the plaintiff in the court below has the burden of proving her entitlement to the right of occupancy of the land in dispute. Her first hurdle is to identify the land which she claimed was allocated to her. It is common ground on both sides that the radical title of the land is vested in the Jalingo Local Government. The respondent tendered in court as exhibit A, a Certificate of Occupancy No. 2224 from Jalingo Local Government by which she was granted right of occupancy over the land in dispute. It is dated 5th January, 1983. Apart from stating the size of the land to be 100′ x 50′ and that it is located in Santoli Ward Jalingo, there is no survey plan of the land nor a description of its boundaries. So too, is exhibit B which is a renewal of exhibit A and C which is an application to the Ministry of Land and Survey, Taraba State for the conversion of exhibits A and B to statutory right of occupancy. There is also exhibit D, a letter dated 22/6/92 whereby the respondent reported the appellant to the General Manager Urban Planning Jalingo, I am aware that there is a site plan attached to that letter and a plot in the plan verged red. Apart from the fact that there is no explanatory note to show that the area verged red is the land in dispute, there is nothing to show that it is related to exhibit A, Band C. PW3, Musa Munkaila is an official from the Ministry of Lands and Survey. Part of the evidence on page 14 lines 10 to 17 reads as follows:-

‘The plaintiff was granted an approval for a Certificate of Occupancy on 2/6/92. There is nothing to show that the land has been clearly mapped out. Normally after grant the applicant is to apply for a survey to be undertaken by the Ministry. In this case the plot has not been demarcated with beacon by our Ministry’.”

Under cross-examination, the witness on page 14 lines 31 to 35 said: