Minister, Federal Ministry of Housing & Urban Development Anor V. Alhaji Mustapha Bello (2009)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This is an appeal against the judgment of the Federal High Court, Kaduna in suit No FHC/KD/CS/67/2004 delivered on 17th June, 2005. At the Court below, the Respondent as Plaintiff, by an Originating Summons submitted two question for determination. These questions are:-

(1) Whether on interpretation of the survey Plan, KAD/81/11 (item Z 269), covering Gongola Road, Kaduna South, Kaduna, the plot of land occupied by tenants of the 1st defendant measuring 1.21 (1.205) acre or 0.488 hectare boundaries of which are marked by property beacons Nos Z. 9670, 2.9671, Z. 9677 and Z. 9678, having among other features, a wall fence, two gates, a semi-detached duplex, boys’ quarters and two garages is plot 25 or plot 39 of the same Gongola Road, Kaduna South, Kaduna.

(2) Whether a plot 39 Gongola Road Kaduna South, Kaduna (a ‘plot’ which has no size, beacon numbers and boundary features also referred to as house No 39 of the same road) exists or it is a non-existing plot imagined by servants or agents of the 1st defendant to cover their unauthorised possession of plot 25 Gongola Road, Kaduna South, Kaduna.

The plaintiff, now Respondent, sought for the following reliefs:-

(1) An order that the defendants, their servants, agents, privies, licensees or tenants be ejected from plot 25 A & B Gongola Road, Kaduna South, Kaduna State forthwith,

(2) Damages for the illegal occupation of the plaintiffs’ plot 25 Gongola Road South, Kaduna State, at the rate of N500, 000.00 (Five Hundred Thousand Naira) per annum from the year 2000 when the defendants entered and occupied the said property till they vacate from it.

(3) A perpetual injunction restraining the defendants their servant’s agents or tenants from re-entering the said plot 25 Gongola Road, Kaduna South, Kaduna.”

Before filing the Originating Summons at the Federal High Court Kaduna, the Respondent had earlier filed the matter at the State High Court which declined jurisdiction. The Respondent is laying claim to plot No. 25 A & B Gongola Road, Kaduna South Kaduna which he alleges the 1st Appellant has illegally let in some tenants. The 1st Appellant states that the property it has let persons into possession is plot 39 A & B and not 25 A & B as alleged by the Respondent. The Respondent wrote to the relevant department of the Ministry of Lands Survey and Country Planning Kaduna State for resolution of which plot is 25 A & Band 39 A & B respectively. By a letter dated 9th April, 2003, the Ministry aforementioned informed the Respondent that “The said plot No. 39 Gongola Road does not exist: either on plan or records. This letter is to clear any doubts.” Strengthened by this letter, the Respondent approached the lower Court to interpret survey plan No. KAD/81/11 and determine whether there is any plot called No 39 A & B. After reading the affidavit in support of the originating summons and the counter affidavit of the Appellants (as defendants) and also considering the address of both Counsel and the Exhibits attached, the learned Trial judge held as follows:-

“The defendants have been unable to show that the certificate of occupancy does not cover any other area than the one in contention. I am inclined to accept the interpretation of the plan that the property designated in both site plans and Exhibit J is the same as No. 25 Gongola Road, and I so hold. The references to water and NEPA bill as proof of correct numbering of the plots is tangential and do not establish anything. In the circumstances I enter judgment in terms of the reliefs claimed by the plaintiff.”

Dissatisfied with the stance of the learned trial judge, the appellants filed notice of appeal dated 7th September, 2005 on the same date. Six grounds of appeal are contained in the said notice. Out of the six grounds of appeal, the appellants have formulated five issues for the determination of this appeal as follows:-

(1) Whether the Federal High Court had jurisdiction to entertain and determine the Respondents claims in view of the provisions of section 39 of the land use Act as saved by section 315 (5) (d) of the 1999 Constitution of the Federal Republic of Nigeria.

(2) Whether the Honourable trial Court was right to hear the entire case/claims under the originating summons procedure having by its ruling confined its self to the interpretation of the survey plan only.

(3) Whether declaration of title to land can be granted on mere production of certificate of occupancy and on interpretation of a survey (site) plan.