General Cotton Mill Limited V. Travellers Palace Hotel Limited (2006)
LawGlobal-Hub Lead Judgment Report
ROWLAND, J.C.A.
This is an appeal against the judgment of Nwofor, J. of the High Court of Justice Onitsha Judicial Division sitting in Onitsha.
The judgment was delivered on the 25th day of February 1997. The present respondent was the plaintiff in the court below.
The present appellant was the defendant at the court below. The plaintiff at the High Court had sought for the following per its claim:
(a) A declaration that the plaintiff is the holder of statutory Right of Occupancy in respect of that piece and parcel of land described and more particularly delineated in the survey plan No. AO(A) 336 attached to the said certificate and thereon bordered or verged red and situate and lying between plots 16 and 18 Ridge Road, GRA Onitsha, duly registered at No. 47 at page 47 in Volume 1337 of the land Registry in its office at Enugu.
(b) N500,000.00 (five hundred thousand Naira) damages for trespass.
(c) Perpetual injunction restraining the defendant, its agents, servants, privies, workmen or assigns however from further trespassing into the said land.
Pleadings were ordered filed and exchanged. The case then proceeded to trial. Both parties adduced evidence. After evidence and address of counsel the trial court found for the plaintiff. Dissatisfied with the judgment of the court below the defendant now appellant has appealed to this court. The plaintiff at the court below is now the respondent.
The background and facts of this case relevant to this appeal may be summarized as follows:-
In 1994, the respondent filed this suit and claimed inter alia as follows: A declaration that the plaintiff is the holder of the certificate of statutory right of occupancy in respect of that piece and parcel of land described and more particularly delineated in survey plan No AA.14/95 and in Survey Plan No. OA(A) 336 attached to the said certificate of statutory right of occupancy registered as No. 47 at page 47 in Volume 1337 at the Lands Registry at Awka. It turned out from the evidence of the respondent that the land it was claiming was known as plot X. It also turned out that there was nothing like plot X between plots 16 and 18.
In 1973, before the coming into operation of the Land Use Act, the appellant acquired the land – plot 18, from the ile Printers of Nigeria as per instrument tendered in evidence and marked “exh. D3”.
The appellant claimed that it developed the land by erecting buildings on the land and fencing the same with wire mesh.
It was contended by the appellant that the beacon numbered 05626 and 05636 separated plot 18 from plot 16 rendering the alleged plot X claimed by the respondent fictitious and non-existent.
The appellant also contended that quite contrary to the respondent’s pleadings and evidence, it turned out that what the respondent was claiming was a portion of the appellant’s plot 18 which in evidence it denied claiming.
The learned trial Judge found as a fact that what the respondent claimed was part of the appellant’s plot 18. See page 53 lines 19 to 26 of the record.
At page 7 of the respondent’s amended brief of argument, the respondent incorporated a preliminary objection to the hearing of this appeal. In the main, the preliminary objection is to the effect that the appeal has been overtaken by events and this court is presented with a fiat accompli. That the appellant is caught by estoppel by election in that it went to settle the matter before an Administrative Authority in Onitsha – Anambra State, and when it failed it came back to this court to pursue its appeal.
I have gone carefully through the preliminary objection and I am convinced that both parties from the facts of this case elected to submit themselves to the jurisdiction of the Administrative Authority and the parties are therefore guilty of the same thing and none of them is therefore innocent. I therefore hold that the preliminary objection is misconceived and cannot stop this court from hearing this appeal. Having said that, I now go into the consideration of the merit of this appeal.
From the grounds of appeal the appellant formulated two issues for the determination of this appeal. They read:-
“(a) Whether the learned trial Judge was right in awarding the reliefs sought by the respondent when his findings contradicted the appellant’s case and when the respondent positively stated in evidence through PW1 that is was not claiming any part of the respondent’s plot 18.
(b) Whether the learned trial Judge was right when he held that the decision of the Court of Appeal in Musa v. Osawe (1991) 8 NWLR (Pt.208) at page 238 is no longer the law when the decision of the Supreme Court in Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 relied on by him does not support him.”
On its part the respondent raised two issues for determination. They are:
“(1) Whether the learned trial Court (sic) was right in holding that there is plot X in Ridge Road G.R.A. Onitsha.
(2) Whether the learned trial Judge was right in holding that the plaintiff/respondent is the holder of statutory certificate of occupancy over plot X, situate in Ridge Road GRA, Onitsha.”
On issue (a) in the appellant’s brief, it was submitted that the law is clear that both the parties and the court are bound by the pleadings and that if a party fails to redeem and sustain the facts pleaded by evidence, that party’s case falls to the ground. It was contended that the trial court did not adhere to the pleadings in this case.
On issue one in the respondent’s brief the learned counsel for the respondent submitted that the learned trial judge was right when he found that there is plot ‘X’ in existence. He said that the question that is material herein is whether there is plot X at the time material to the dispute and judgment and not whether it was carved out of any plot or from where. It was argued that if Plot X was carved out of plot 18 it ceased to be part of plot 18 the day and time it was so carved out by the appropriate authority whether it was properly done or not does not go to the fact of its existence. It is true that parties are bound by their pleadings. It is also true that both the parties and the court are bound by the cases put forward by the parties in their pleadings, and that it is not within the province of a Judge to set up a new case for the parties and base his judgment on it. See NNPC v. Idoniboye-Obu (1996) 1 NWLR (Pt.427) page 655 at 672; S.S.D.S. v. Rastico (Nigeria) Limited (1992) 6 NWLR (Pt.245) 93 at 108-110; Blay v. Polland & Morris (1930) 1 K.B. 628 at 634; Kalio v. Daniel Kalio (1975) 2 SC 15 at 21; George v. Dominion Flour Mills Ltd. (1963) 1 All NLR. 71; (1963) 1 SCNLR 117.
Exhibit D6 is very germane to this case. I reproduce it here-under:-
“GOVERNMENT OF ANAMBRA STATE OF NIGERIA
OUR REF: LOM: 7929/66 25th August 1994
The General Manager,
General Cotton Mill Limited,
Niger Bridge Head Industrial Layout,
P.M.B. 1001, 1601
Onitsha.
Sir,
GENERAL COTTON MILL LIMITED PROPERTY AT NO.18 RIDGE ROAD G.R.A. ONITSHA
I refer to your lease of the above plot and to inform you that a portion of your land was erroneously allocated to Messrs Travellers Palace Hotels Limited by the State Government in September 1990. Their certificate of occupancy is dated 27th August, 1991 and registered as 47/47/1337 (Enugu now Awka. This mistake stemmed possibly from the false notion that the space was a proposed road in an old design of the layout. That notion was buttressed by the erection of the berbed wire fence by your company on the Western and of your plot just very close to your boys’ quarters.
Whatever be the case, this Bureau regretted the inadvertency and request that you please accommodate and allow Messrs Travellers Hotels Limited that strip of land in the interest of peace and progress. This Government will not only recognize your magnanimity but also take further steps to compensate your company in any future allocation exercise. The cost of re-surveying and re-granting a fresh certificate of occupancy to your company based on the reduced size of your plot will be borne by government.
Thanks.
(Sgd.)
H. M. JIDEANI
DIRECTOR GENERAL
Bureau of Lands, Survey and Town Planning”
In considering exh.D6 the learned trial Judge said:-
“exhibit D6 reproduced in this judgment even though not written by the Governor nor on his authority admitted that the grant was erroneous and done under a mistaken belief asked the defendant to allow the grant to stay.” I hasten to say that ‘exhibit D6″ did not revoke the respondent’s grant. See also the case of Dabup v. Kolo (1993) 9 NWLR (Pt.317) page 254 at 259.
It is manifest from the record that plot X granted to the respondent was carved out of plot 18 for which the appellant by virtue of Section 34(2) of the Land Use Act 1978 is deemed to be occupier under statutory grant, Onitsha, being an Urban Area having been in possession since 1973. It must be said again that it is the duty of the plaintiff to prove his title in any declaratory action over land. He must adduce cogent and credible evidence to justify the exercise of the discretion of the trial court in his favour and cannot rely on admissions in the pleadings. See Titilayo v. Olupo (1991) 7 NWLR (Pt.205) 519 at 522; Saude v. Abdullahi (1989) 4 NWLR (Pt.116) page 387.
I must say also that by virtue of Section 5(1) of the Land Use Act 1978, a Governor has the power to issue a statutory right of occupancy to a person on application whether the person is already in possession of the land or not.
Under Section 5(2) of the Land Use Act 1978, a grant of such a right extinguishes all existing rights.
Section 5(2) of the Land Use Act 1978, provides as follows:-
“Upon the grant of a statutory right of occupancy under the provisions of subsection (1) of this Section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”
From all that I have said hereinbefore, I hold the strong view that the learned trial Judge was not in error when he found for the plaintiff/respondent in his judgment. After this finding of mine I do not consider it necessary again to go into issue two in both briefs as that will amount to a barren exercise.
In the final analysis, I hold that this appeal is devoid of merit and it is hereby dismissed. I uphold the judgment of the lower court delivered on 25/2/97.
I award N5,000.00 (five thousand Naira) costs in favour of the respondent against the appellant.
Other Citations: (2006)LCN/1915(CA)
