Alhaji Inuwa Dantumbu V. Chief Peter Adene & Ors (1987)

LawGlobal-Hub Lead Judgment Report

OGUNDERE, J.C.A.

Before Chigbue J., on March 18, 1985, at the Kaduna High Court, the first Respondent, Peter Adene, as plaintiff obtained judgment against the appellant herein, then first Defendant, as well as the second to the fifth Respondents, in an action for trespass, possession, and perpetual injunction in respect of a parcel of land, Plots No. A and B of 1.75 acres also known as No. BB 29 Ibrahim Taiwo Road, Kaduna, covered by a Certificate of Occup1961. The ancy No. 8128 for a term of 40 years commencing from April 14, 1983, and registered as No. 17, Page 17, Volume 27 in the Land Registry Kaduna. Dissatisfied with that judgment, the first Defendant in the court below brought this appeal.

Although, originally, the appellant brought the appeal against the first respondent only, on the 22nd day of October, 1986, the second, third, and fourth, and fifth respondents applied for and obtained an order that all four be joined as respondents in this appeal. On 2nd October 1986, the 1st respondent sought and obtained an order, inter alia, to file, and did file, and served a Notice of intention to contend that the judgment of the lower court be affirmed or varied on other grounds, to wit:-

1. The Master-plan which was rejected by the learned trial judge was clearly admissible.
2. The question whether or not the land in dispute was within the Urban Area so designated was one of the vital issues for determination in the suit.
3. The evidence in the circumstances conclusively proved that the land in dispute is within Urban Area.

Dated this 6th day of August, 1986.

Similarly, Mrs Offor, senior state counsel, Kaduna State Ministry of Justice, also sought and obtained a similar order that the decision of the court below of 18th March 1985 be affirmed on one other additional ground as follows:-

1. That the plan No. NC/MISC 18 which was further extended by the Kaduna State (Designation of Land in Urban Area) Order 1982 and numbered NC/MISC 46 forms part of an order made in pursuance of a Law which the learned trial judge ought to have taken judicial notice of without the necessity of tendering it.

The grounds of appeal are as follows:-

Learned trial High Court judge erred in law in holding that the plaintiff had adduced sufficient evidence to prove that the land in dispute lies within Urban Area.

Particulars of Error

a. There is no evidence before the trial court establishing that the ingredients of the schedule attached to the Kaduna State (Designation of land in Urban Area) Order of 1980 have been proved.

b. It is not sufficient from the oral evidence of the only co-defendants’ witness (that of PW2) to conclude that the land in dispute lies within Urban Area.

2. The learned trial High Court judge erred in law in holding that the Governor of Kaduna State has absolute power to issue Certificate of Occupancy in both Urban and non-Urban Areas.

Particulars of Error

a. The general and definite defect of intendment of S.5 of the Land Use Act 1978 has been whittled down by the operation of the subsequent S. 6 of the said Act.

b. The Governor has no power to issue a Certificate of Occupancy over a piece of land in respect of which a Certificate of Occupancy was already issued by a Local Government without first of all revoking by deed the one issued by the Local Government.

3. The learned trial judge erred in law when he held that the plaintiffs/respondent’s title to the land, Exhibit C, takes priority over that of the defendant/appellant, Exhibit G.

Particulars of Error