Group Captain Ogah & Anor V. Mallam Garba Ali Gidado & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

The two Appellants were the 2nd and 3rd Defendants at the Kaduna State High Court in Suit No. KAD/488/94, which was instituted by one Alhaji Ali Gidado as plaintiff against the Appellants and the 2nd, 3rd and 4th Respondents in this appeal – who were co-defendant at the Court below. The 1st Respondent later substituted the said Alhaji Ali Gidado as Plaintiff upon his demise.

At the High Court, the plaintiff (1st Respondent) had sought declaratory reliefs, a mandatory injunction, a perpetual injunction and one hundred Thousand Naira (N100,000.00) general damages, against the Defendants for trespass in respect of the piece of land consisting of 0.40 acre situate at Kaduna, in Kaduna North Local Government Area. The full of the Plaintiff’s claim at the Lower Court were:

a. DECLARATION that the Plaintiff is the lawful holder of Kaduna State certificate of Occupancy No. 10939, dated 26th August, 1990 and registered as No.123 at page 123 in volume 47 (Certificates of Occupancy) of the Lands Registry in the Office at Kaduna and therefore the person rightfully entitled to the rights and interest created by the said Certificate over the piece of land consisting of 0.40 of an acre situation at Kaduna in the Kaduna Local Government Area (now known as Kaduna North Local Government Area), the corners of which are marked on the ground by property Beacons Nos. KDB 1969, KDB 1870, KDB 7856 and KDB 1875 and the boundaries of which are delineated by a red verge on the approved plan No. NC LP, 242 deposited in the office of the Surveyor General Department of Lands, Survey and Country planning, Kaduna South AND more particularly described as plot No.16 Road “IV” TPO 4864 Unguwar Dosa Extensions Layout, Kaduna.

b. A DECLARATION that any allocation of the said land or grant of Certificate of Occupancy over the land by the 4th Defendant or any of his agents, servants or privies to any person including the 1st, 2nd and 3rd Defendants, without the lawful revocation of the Plaintiff’s Certificate of Occupancy No, NC.10939, over the land, in accordance with the provisions of the Land Use Act 1978 (or any statutory modification thereof) and the 1999 Constitution of the Federal Republic of Nigeria is illegal, null and void.

c. A DECLARATION that the 1st, 2nd and 3rd Defendants have trespassed into the said land.

d. AN ORDER OF INJUNCTION commanding the 1st, 2nd and 3rd Defendants to forthwith vacate and deliver up possession of the said land or the part(s) of the land trespassed into by time with the improvement thereon to the plaintiff.

e. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st, 2nd and 3rd Defendants by themselves agents, servants or privies from trespassing or further trespassing on the plaintiff’s said land.

f. THE SUM OF N100,000,00 (One hundred thousand naira only) against each of the 1st, 2nd and 3rd Defendants as general damages for trespass on the Plaintiff’s said land.

g. SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances.

At the close of the trial the parties (including the appellants) filed their written addresses and in a considered judgment, the learned trial judge, Zailani J, held for the Plaintiff, granting all the reliefs sought. The judgment was delivered on 16th May, 2000.

Appellants, being dissatisfied with the said decision of the trial Court lodged this appeal on 1st June, 2000, as per the Notice of Appeal on page 109 of the Record of Appeal. They disclosed 4 grounds of Appeal. Appellants later obtained leave to file amended Notice of Appeal on 29th June, 2009, wherein they disclosed 9 grounds of appeal, as follows:

(1) ERROR IN LAW

The Hon. Trial judge erred in law, when he held that the 1st Respondent (Plaintiff in the Lower Court had discharged his onus of proof even though the evidence was that the appellants were in possession of the disputed land, and the respondents did not show that he had a better right to possession which was disturbed, but had a title which was in itself demonstrated to be defective.