Boniface B. Gwar V. S. O. Adole (2002)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A. 

This is an appeal against the decision of Ogbole J., sitting in the Makurdi Judicial Division of the Benue State High Court, in Suit No. MHC/219/94 dated 28/6/99, wherein he entered judgment for the respondent as plaintiff in a suit involving title to land. The concluding part of the judgment reads as follows:-

“Consequently, judgment is hereby entered for the plaintiff in the following:

A. A declaration that the plaintiff is the owner of the landed property along David Mark Bye-Pass Makurdi consisting an area of 2957.711 square metres and covered by statutory C of O No. BNA 5131.

B. A perpetual injunction restraining the defendant, his servants or agents from entering upon the said property or doing any other acts thereon inconsistent with the plaintiff’s title and ownership of the said property.

On the other hand, I have found no merit in the counterclaim and same is hereby dismissed. Accordingly, the plaintiff is hereby awarded N15,000.00, being general damages against the defendant for trespass.

The appellant felt aggrieved and on 27/8/99, filed a notice and grounds of appeal questioning the judgment on eleven (11) grounds of appeal. In due compliance with the Rules of this court, on the question of filing briefs of argument both parties filed through their learned Counsel their respective briefs. The appellant identified six issues as arising for determination there from. The issues are couched thus:-

1. Whether or not, the learned trial Judge was not in law, bound to make a specific finding of fact on the issue of whether the appellant was deemed holder of a Statutory Right of Occupancy (C of O) over the plot in dispute or not, or whether section 34(5) of the Land Use Act applied in the case (Based on ground 3 of the grounds of Appeal).
2. Whether or not, the Certificate of Occupancy irregularly and erroneously issued to the respondent extinguished all the existing rights of the appellant, to the use and occupation of the plot in dispute pursuant to s.5(2) of the Land Use Act (Based on ground 1 of the grounds of appeal).
3. Whether or not, the staff of the Bureau for Lands and Survey are persons interested contemplated by s.91(3) of the Evidence Act to render inadmissible, the contents of page 16 of exhibit 9 and pages 39 and 41 of exhibit 10 in this case (Based on ground 2 of the grounds of appeal).
4. Whether or not, a case of trespass was established against the appellant and if it was, whether the sum of N15,000.00 awarded as damages was not without foundation and excessive (Based on ground 4 of the grounds of Appeal).
5. Whether or not, the learned trial Judge distinguished the cases of Dr. Adebiyi v. Williams & Ors. (1989) 1 NWLR (Pt. 99) 611 at 618, Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528 at 540; Savannah Bank of Nigeria Ltd.v. Ajilo (1989) 1 NWLR (Pt. 97) 305 and thereby, made them inapplicable to this case (Based on grounds 5 of the grounds of appeal).
6. Whether or not, the learned trial Judge properly evaluated the evidence in this case (Based on grounds 6, 7, 8, 9, 10 and 11, of the grounds of appeal).

The respondent on his side formulated seven (7) issues as arising for determination from the grounds of appeal. The issues are presented in the following manner:-

(i) Whether the C of O No. BNA 5131 granted to the plaintiff (now respondent), was validly granted and is capable of defeating the defendant’s (appellant’s) alleged customary title over the disputed plot or, extinguished the status of the defendant as a deemed of a C of O on the land (by inheritance)?

(ii) Whether the plaintiff has proved that the defendant is a trespasser and is entitled to damages?

(iii) Whether it was proper or constitutional for the plaintiff/defendant’s counsel, to have submitted written addresses without reading same out in the open court?

(iv) Whether or not, the staff of the Bureau for Lands and Survey, are persons interested in this case to warrant the documents, which emanated from them, during the pendency of this case, at the lower court caught up by the provisions of section 91 (3) of the Evidence Act, Cap. 112 Laws of the Federation, 1990?

(v) Whether from evidence before the court, the C of O No. 5131 was not issued to the plaintiff in error?

(vi) Whether it was mandatory for the plaintiff to pay any compensation to the defendant in this case?