Major Shehu Ibrahim V. Dr. Junaid Salik Mohammed (2003)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C.

The respondent in this appeal was the plaintiff in the High Court of Kaduna State Holden at Kaduna, where he sued the appellant and one Hajiya Bahajatu Katsina claiming against them jointly and severally for:-

“1. A declaration that the plaintiff is entitled to a right of occupancy in and over all the piece or parcel of land measuring approximately 0.688 of an acre situate, lying and being at plot No.7, Road ‘D’, Malali, Kaduna North in the Kaduna State of Nigeria which land is more particularly described and delineated on plan No. NC. LP. 106 attached to the Certificate of Occupancy No. NC.4303 and thereon verged RED and registered as No. NCR 52 at page 52 in volume 10 (Certificate of Occupancy) at the Lands Registry in the office at Kaduna.

2. N20,000.00 damages against the defendants for trespass committed on the said parcel of land.
3. Perpetual injunction restraining the defendants, their agents, servants and/or privies or otherwise howsoever from committing further acts of trespass on the said land.”

Pleadings were filed and exchanged. Parties called witnesses in proof of their respective cases and then filed written addresses at the end of the trial. The learned trial Judge Donli, J. (as she then was) in a considered judgment found for the plaintiff/respondent against the defendants and ordered as follows:-

“1. The plaintiff is entitled to the right of occupancy in and over all that parcel of land measuring approximately 0.688 of an acre situate, lying and being at plot No.7, Road ‘D’, Malali, Kaduna North, Kaduna State of Nigeria which land is particularly described and delineated on plan No. NC. LP. 106 attached to the Certificate of Occupancy No. 52 at page 52 in Volume 10 (Certificate of Occupancy) at Lands Registry in the office at Kaduna.

2.(a) N5,000.00 as damages against the 1st defendant for trespass committed on the said land by the construction of a wall.

(b) N10,000.00 as damages against the 2nd defendant for the acts of entering on the said land.

3. Perpetual injunction restraining both 1st and 2nd defendants, their agents, servants, and for privies or otherwise howsoever from committing further acts of trespass on the land.”

Dissatisfied with this order, the defendants separately appealed to the Court of Appeal. The 1st defendant Hajiya Bahajatu Katsina, abandoned her appeal which was dismissed pursuant to Order 6 rule 10 of the Court of Appeal Rules, 1981. The appeal of the respondent as 2nd defendant was considered by the Court of Appeal and was also dismissed with costs. He then appealed to this court. Here, the parties filed their respective written briefs and exchanged them between themselves. In the appellant’s brief, the following issues were formulated for the consideration of this court:-

“1. Whether the Court of Appeal was right when they struck out issue No.2 of appellant’s brief dealing with the application or otherwise of s. 5(2) of the Land Use Act, 1978 to exhibit 1 and exhibit A8 (exhibit A13).

2. Whether the issue of priority and validity or otherwise of the two Certificates of Occupancy exhibits 1 plaintiff’s title and exhibit A8 (exhibit A13) 2nd defendant’s title over the same piece of land arose for determination in the High Court.
3. Whether the Court of Appeal was not obliged to determine the validity and priority of the plaintiff’s title exhibit 1 (Certificate of Occupancy issued on 2nd November, 1977 under the Land Tenure Law, Cap. 59) and defendant’s title exhibit A8 Certificate of Occupancy issued on 23rd March, 1988 and exhibit A13 Certificates issued on 29th March, 1988, before determining which of the two parties has a better title to the land in dispute.
4. Whether the Court of Appeal was right when they held that the plaintiff proved a better title to the plot in dispute No.7, Road ‘D’, Malali Kaduna through exhibit “I” than the 2nd defendant who relied on exhibits “A8” and “A13″.
5. Whether the Court of Appeal was right when they struck out suo motu ground 4 of the ground of appeal.
6. Whether the failure of the Court of Appeal to consider defences of standing by, laches and acquiescence raised by the 2nd defendant was a serious misdirection in law and occasioned a miscarriage of justice.
7. Whether the decision of the Court of Appeal to confirm the award of N10,000.00 damages for trespass against the 2nd defendant was excessive.”

The respondent maintained in his brief that the only (four) issues for the determination of this court in this appeal are:-

“(a) Whether or not the courts had to consider issues which the appellant had not raised or pressed when he should have done so particularly s.5(2) of the Land Use Act;

(b) Whether or not the respondent’s first-in-time status in principle entitles the respondent to victory;

(c) Whether or not the damages awarded were excessive;

(d) Whether or not the appellant’s equitable defences (particularly “standing by”) were tenable.”