S. O. Adole Vs Boniface B. Gwar (2008)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This is an appeal against the judgment of the Court of Appeal Jos, (per Obadina, Mangaji and Nzeako, (JCA) delivered on 14th May 2002 in Appeal No.CA/J/297/99 wherein they entered judgment for the respondent as appellant, allowed the appeal and the judgment of Ogbole, J. of the High Court of Benue State in Suit No.MHC/219/94 dated 28/6/99 set aside. Specifically, the declaration that the respondent (now appellant) was the title holder of the land in dispute and the injunction granted restraining the appellant/respondent as well as the general damages awarded are each set aside dismissed the counterclaim and cost of N5,000 awarded in favour of the appellant/respondent.

The appellant’s statement of claim (then as plaintiff at the trial court) is on pages 4-6 of the record. The respondent’s (then defendant) further amended statement of defence is on pages 77 to 83 of the record. The appellant’s reply to the statement of defence is on pages 56 to 59 of the record. The evidence of the appellant and that of his witnesses is on pages 115 to 130 of the record.

The respondent, as appellant’s brief of argument is on pages 191 to 207 of the record. The appellant, as respondent’s brief of Argument, is on pages 208 to 256 of the record. The judgment of the Court of Appeal leading to this appeal is on pages 260 to 292. Being dissatisfied with the judgment of the Court of Appeal, the appellant on 16/7/2002 filed a Notice and grounds of Appeal containing (4) grounds.

At the trial Court, the Court admitted fifteen exhibits prominent among which exhibit 2, is Certificate of Occupancy NO.BNA 5131 in respect of a piece of land in the Makurdi Urban Area which is the subject of this appeal.

The appellant distilled four issues from his grounds of appeal which the Respondent adopted for the determination in this appeal, to wit:

a) Were the learned Justices right in the circumstance of this case in holding that there was no evidence led to show that the land in dispute is within Greater Makurdi Urban Area. Or put in another way, did the plaintiff (appellant) on the evidence produced by him successfully establish that the land in dispute is situated within the Makurdi Urban Area, (Based on ground 1 of the grounds of appeal),

b) Whether the power conferred on the Governor under section 5(2) of the Land Use Act, 1978 presupposes prior strict compliance with Section 28 of the Act where there exist Title holders to the land affected (Based on ground 2 of the Grounds of Appeal).

c) Whether or not the Statutory right of occupancy issued to the appellant was validly granted and court therefore extinguish the Respondent’s title as a deemed title holder considering section 5 sub-section 2 and 34 sub-sections 5 and 6 of the Land Use Act, 1978 (Based on ground 3 of the grounds of appeal).

d) Whether or not the respondent, now appellant proved his title to the piece of land in dispute by the production of a document of title (Certificate of Occupancy No. BNA 5131) referred to as Exhibit 2 from the record and or, whether the costs of N5,000 awarded was not excessive.

(Based on ground 4 of the grounds of appeal).

The facts of the case briefly put are as follows:-

The appellant, as plaintiff in the High Court of Benue State before Ogbole, J. claimed that the Respondent as defendant trespassed into his piece of land. In consequence, he sought a declaration (declaratory) judgment that respondent as defendant trespassed into his piece of land along David Mark Bye Pass, Makurdi. He in addition claimed aggravated damages and perpetual injunction restraining the Respondent, his servants or agents from entering upon the said property or doing any other acts thereon incompatible and inconsistent with the Respondent’s title and ownership of the said property. The defendant for his part, filed a counterclaim in his amended statement of defence with one relief that he is a deemed holder of a Certificate of Occupancy in respect of the land in dispute.

Pleadings were exchanged and witnesses were called by the two parties at the hearing in the High Court