Abubakar a’aron Ibrahim V. Alhaji Mohammed Bai Adamawa (1993)

LawGlobal-Hub Lead Judgment Report

KATSINA-ALU, J.C.A.

The appellant was plaintiff in an action instituted on the 19th day of November, 1986 in the Jos High Court wherein he claimed:
“(1) A declaration of title to the said Plot No. X20/1 Gangare, Jos.
(2) A perpetual injunction to restrain the defendant, his agents, servants from further trespass on or upon the said piece or parcel of land known as Plot No. X20/1 Gangare, Jos.
(3) Eight thousand Naira (N8,000.00) for special and general damages.
(4) Cost of this action.”

Pleadings were ordered, filed and served and the matter came before Soluade J, for trial. After hearing evidence and submissions of Counsel, Soluade, J. delivered a judgment, finding in favour of the defendant. In the course of the judgment, the learned trial Judge said:
“My first observation is about the description of the land in dispute. The Plaintiff in his statement of Claim and in evidence referred to it as plot PX20/1 Gangare Jos, while the defendant in his statement of defence paragraph 2 and in his evidence calls it 2 Gangare Jos. It is therefore of utmost importance to find out if they are both referring to one and the same land. From the evidence of the Ward head, P.W.2, who had lived there for 44 years, his assistant, PW3 who has been living there all his life, and PW4 who has been there for 66 years coupled with the testimony of DWs 2 & 3, I am satisfied that they all refer to one and the same land in question, it is the place with a public toilet by the University Bookshop.
The plaintiff’s C of O Exh, “A” is from 2/8/78 and that of the defendant is (sic) in physical possession of the land. By Section 145 of the Evidence Act, since both are claiming ownership of the land in dispute, the onus is on the plaintiff to show he has a superior title see Stephen Omo Ebueku v Sunmola Amola 1988 (Pt.75) 2 NWLR pages 128-162.
The evidence of P.W.2 is that the late Alhaji Garang sold his house to the defendant whom he saw demolishing the toilet, but said nothing about the position of the plaintiff. That of P.W.3 is neither here nor there. The public toilet (near Garang’s House) in question was built by P.W.4 and he sold it to Garang and who later sold it to the defendant, here again there is nothing said affecting the interest of the plaintiff, and it must be remembered that these are his witnesses.
On the other hand the defendant produced Exh. “C” receipt for N60,000.00 which is the amount he paid for the land in dispute and this is supported by the evidence of P.W.2 & 3. Apart from this the defendant also paid for the demolition and materials of the toilet. See Exh. H. There is no evidence before the Court that the plaintiff purchased the said land and none to show that he acquired a right of occupancy.”

The learned trial Judge concluded thus:

“The result therefore is that between the plaintiff and the defendant it is the defendant and not the plaintiff who has established a better title for the certificate of occupancy over the land in question.”

He accordingly dismissed the plaintiff’s claim with N350.00 costs. The plaintiff was aggrieved by the decision and has appealed to this Court on 3 grounds of appeal. These grounds are as follows:-

1. The learned trial Judge erred in law when in spite of Exhibit ‘A’ he held:-

“The result therefore is that between the plaintiff and the defendant, it is the defendant and not the plaintiff who has established a better title for the certificate of occupancy over the land in question.”

PARTICULARS OF ERROR IN LAW:
(a) Since Exhibit ‘A’ and ‘E’ which parties relied on were granted by the same authority, the plaintiff’s Exhibit ‘A’ is from 2/8/78 and that of defendant, Exhibit ‘E’ is from 20/6/84, the first in time should prevail because no two certificate of occupancy can co-exist in respect of the same plot of land having regard to the provision of the Land Use Act No.6 of 1978.
(b) The learned trial Judge has not properly construed Sections 6, 21(a); 21(b); and 20 of the Land Use Act No.6 of 1978 in relation to Exhibit ‘A’ ‘C’ ‘D’ and ‘E’.
(c) The learned trial Judge applied Section 6 of the Land Tenure Law, 1962 to determine the dispute. Section 6 of the Land Tenure Law is not one of those provisions of the law saved by virtue of Section 4 of the Land Use Act 1978, since it does not deal with the interim administration and, management of land.
(d) The trial Judge merely compared what each witness said without relying on the witness to reach his conclusion. A mere comparison of case stated by each side without saying positively which version is correct or more reliable is not  cured by the general statement of the learned trial Judge that.
“In the case in hand there is nothing to show that the plaintiff has acquired a right of occupancy.”
(e) The learned trial Judge erred in law by declaring that the defendant was in possession of the land in dispute.

2. The learned trial Judge misdirected himself when he failed to resolve the ownership of the “disused public toilet” vis-a-vis Exhibit ‘A’ and ‘E’ between the parties the non resolution occasioned miscarriage of justice.

PARTICULARS OF MISDIRECTION:
(a) There was no proof of the extent of the land encompassed by Exhibit ‘E’ neither is there proof that the defendant’s land covered by Exhibit ‘E’ included the disputed “disused public toilet.”
(b) As site plans tendered have been rejected, the trial Judge should have visited the locus in quo or asked for survey of the land covered for proper demarcation of land encompassed by both Exhibit ‘A’ and ‘E’ to resolve the Issue.
3. (i) That the decision of the lower court is against the weight of evidence, unreasonable, unwarranted and cannot be supported having regard to the weight of the oral and documentary evidence before the court.
(ii) That further grounds of appeal and particulars of error/misdirections will be filed on receipt of the record of proceedings from the lower court.”

Briefs of argument were filed by Learned Counsel, for the parties.

The appellant’s counsel was absent at the hearing of this appeal but by virtue of Order 6 Rule 9(e) of the Court of Appeal (Amendment) Rules, 1984 the appeal was treated as having been duly argued. The respondent’s counsel who was present adopted the respondent’s brief and urged that the appeal be dismissed. The appellant also indicated at page 1 of his brief of argument that he would seek leave of this Court at the hearing of this appeal to argue the following additional ground of appeal:
“The trial court erred in law where it recognised and treated the respondent’s certificate of occupancy Exhibit ‘E’ issued by the Jos Local Government Council in 1984 as evidence of valid title.

PARTICULARS OF ERROR
(1) By the Plateau State Legal Notice No.7 of 1981 titled Land Use Act 1978, Designation of Urban Areas, 1981, Jos was designated Urban Area. The respondent’s certificate of occupancy was issued in 1984, By 1984, the Jos Local Government Council had no lawful authority to issue a certificate of occupancy in an Urban area.
(2) The appellant’s certificate of occupancy issued in 1978 predated the Legal Notice No. 7 of 1981 mentioned above. In the circumstance, the trial Court should not have treated the respondent’s certificate as valid against the appellant in respect of the land in dispute.”