Potter Dabup V. Haruna Bako Kolo (1993)
LawGlobal-Hub Lead Judgment Report
OLATAWURA, J.S.C.
The competing claims by the appellant and respondent were in respect of a piece or parcel of land in Jos, Plateau Sate. Both claimed to have the Certificate of Occupancy. It was when the appellant visited this piece of land that he found the respondent and his workers on the land. There was a challenge.
The respondent claimed damages for assault and battery, false imprisonment and damages for trespass. The appellant denied the claims and set up a counter-claim. In view of the issues raised about the counter-claim and the findings of the learned trial judge and the conclusions reached by the Court of Appeal. I consider it necessary to set out the claims and counter-claim verbatim. The appellant and respondent will be referred to as the defendant and plaintiff respectively.
The plaintiffs claims are as follows:
“(a) A declaration that the plaintiffs the owner of the landed property and the structures thereon along Jos-Bukuru Road (Now Yakubu Gowon Way) Jos measuring 3.31 Heactares covered by Statutory
Certificate of Occupancy No. PL5399.
(b) A perpetual injunction restraining the defendant his servants and/or agents from entering upon the said property or doing any other acts thereon incompatible and inconsistent with the plaintiff’s title and ownership of the said property.
(c) The sum of N550,000.00 whereof:
(i) the sum of N250,000.00 being damages for assault and battery wrongfully committed on the plaintiff by the defendant and his agents by beating him all over his body and manhandling him on the 27th October, 1982.
(ii) the sum of N250,000.00 being damages for falsely imprisoning the plaintiff for several hours before taking him to the police station at Bukuru on the 27th October, 1982.
(iii) N50,000.00 being damages for trespassing on the aforementioned property on the footing of aggravated damages.”
The defendant’s counter-claim reads as follows:
COUNTER-CLAIM
“1. By way (sic)counter claim, the defendant claims for the plaintiff the sum N50.000.00 being aggravated damages for trespass to the defendant’s land by the plaintiff upon the following grounds:-
(a) The defendant is (with Alhaji Musa Gombe) and was at all material times the owner and entitled to the possession of land and premises situate at and known as Plot AC47, Bukuru Road, Jos in the Gyel District of Jos, Plateau State.
(b) On or about November, 1982, the plaintiff wrongfully with his servants and agents entered the said land and premises and wrongfully took possession of the same and has thereby trespassed and is still trespassing thereon, and has removed the defendant’s goods from the land.
The plaintiff did the acts aforesaid maliciously and out of spite towards the defendant and with the intention of humiliating the defendant and injuring his proper feelings of dignity and pride and causing him to be held up to ridicule and contempt before passersby and the plaintiff’s workers.
- By reason of the matters aforesaid, the defendant has been subjected to humiliation and suffered anguish and distress and has suffered loss and damage.
PARTICULARS OF DAMAGE
Cost of planting tress and erecting the fence on the land assessed at – N4,400.00
Aggravated damages for trespass to land – N45,6000.00
And the defendant claims N50,000.00.”
The lower court remarked that the pleadings are prolix. I agree. I will therefore summarise them but I will ensure that the case of each party is reflected in the summary. Be that as it may, it may be necessary to reproduce some of the averments so as to bring out clearly the matter in dispute.
The parties called evidence in support of their pleadings. The matter came before Momoh, J. who, after a review of the evidence and the submissions, gave judgment in favour of the plaintiff but excised a portion of the land claimed by the defendant from the land claimed by the plaintiff. The learned trial judge concluded thus: .
“It is hereby declared and ordered that the plaintiff being the holder of a statutory right of occupancy PL5399 (Exhibit A4) granted on the 30th day of September, 1982 over that piece of land described in the sketch plan (Exhibit A6) shall be entitled to the use and occupation of the said land only to the extent that the land shall not include that portion of land described in the survey plan (Exh. J1) subject to a prior right of occupancy evidenced by the Local Govt. certificate of occupancy (Exh.J) dated 21/8/78.”
The learned trial judge dismissed the claims for injunction in view of her finding that their claims overlapped. There was an award of N1,000.00 damages for false imprisonment against the defendant. She dismissed the claims for trespass by both parties as she awarded “title to the use and occupation granted each party over the land.” The claims for perpetual injunction by each party were also dismissed.
Both parties appealed to the Court of Appeal Jos Division. In a unanimous in decision of that court coram: Agbaje, Jacks and Macaulay, JJ.C.A., Agbaje, J.C.A. in the lead judgment set aside the declaratory judgment in favour of each party, and sent the claims and counter-claims back for retrial with liberty for each party to amend his pleading; granted leave to the plaintiff to file, a defence to the counterclaim. Aggrieved by this decision, the defendant has now appealed to this Court, filed Notice of Appeal with one ground of appeal but subsequently obtained leave of this Court to file additional grounds of appeal. Briefs were filed by both parties.
The defendant raised three issues for determination. Since issue No.1 has been abandoned at the hearing of the appeal, I will now set hereunder the remaining two issues namely:
“(1) Abandoned.
‘(2) Whether the learned justices of the Court of Appeal were right in their interpretation of Section 5(2) of the Land Use Act which postulates that 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, even in this instance when it is common ground that the appellant, with one Alhaji Musa Gombe’ already were entitled to the use and occupation of part of the land covered by the statutory right of occupancy aforesaid, the same not having been revoked or otherwise extinguished.
(3) Were their Lordships of the Court of Appeal right in failing to enter judgment for the appellant when the respondent did not file a defence to the counter-claim in the circumstances of his case”
The plaintiff agrees with the defendant on the issues raised as being the issues which call for determination.
In his oral submission, Mr. Fasola, the learned counsel for the defendant in amplification of the brief submitted in respect of issue No.2 – that since the defendant has prior right of occupancy to the land in dispute and that right of occupancy has not been revoked, any subsequent grant to the plaintiff is ineffective Alhaji Dahiru Saude v. Alhaji Halliru Abdullahi (1989) NWLR (Pt. 116) 387/416. Learned counsel pointed out that the plaintiff relied on this case but that this case of SAUDE (supra) is distinguishable from the facts. He drew the Court’s attention to certain portions of the report and cited Joshua Ogunleye v. B. Oni (1990) 2NWLR. (Pt.135) 745. Counsel further submitted that the plaintiff must prove that the grant to him was proper and in accordance with the spirit of the Land Use Act and cannot therefore rely on S.5(2) of the Land Use Act. The earlier grant (i.e. the defendant’s grant) must be revoked. Learned counsel again cited Romaine v. Romaine (1992) 4 NWLR (Pt.238) 650/662 and submitted that mere production of the Certificate of Occupancy is not enough, the holder must prove it was actually granted. On specific reference to S.5(2) of the Land Use Act, counsel submitted that where there had been a grant under the Land Tenure Law, as was the case of the defendant, any subsequent grant to another person without revoking the earlier grant is ineffective; Chief G. A. Titiloye & Ors. v. Chief J. O. Olupo & Ors. (1991) 7 NWLR (Pt.205) 519/530.
On issue No.3 i.e. non-filing of a defence to the counter-claim, learned counsel submitted that non-filing of the defence amounts to admission of the averments in the counter-claim: Ogbonna v. Attorney-General of Imo State (1992) NWLR (pt.220) 647/675. Learned counsel referred to the evidence of the defendant on pages 50-56 of the record of appeal.. He finally urged that the appeal be allowed.
In his own oral submission after adopting the plaintiff’s brief, Mr. Kayode Sofola, learned counsel for the plaintiff pointed out that the appeal before us is against the judgment of the Court of Appeal. Learned Counsel referred to the findings of the lower Court on page 157 line 5 to page 158 line 25 and that there has been no ground of appeal against those findings. Counsel pointed out further that there is no nexus between the documents tendered by the defendant and the claims filed by the plaintiff; that the Court of Appeal side-stepped s.5(2) of the Land Use Act as it was no longer relevant to its determination and that those submissions on s.5(2) of the Land Use Act and issue No. 2 do not come within the parameters of the appeal.
However, learned counsel referred to s.5(2) of the Land Use Act and submitted that the express provisions are clear and unambiguous and the court should give effect to those provisions. Counsel pointed out that there has been no relief by the defendant that the Certificate of Occupancy issued to the plaintiff be set aside and that the interpretation placed on that section is not within the provision of the section.
On issue No.3, counsel referred to what he correctly termed “One paragraph counter-claim” which did not allege new facts. All the materials in the counterclaim having been controverted in the plaintiffs pleading and that both parties led evidence in respect of the counter-claim and it is therefore too late to contend the presumption of admission. He also relied on SAUDE’S Case (supra). He finally urged that the appeal be dismissed.
In coming to a decision, I must bear in mind the order of the Court of Appeal for a retrial of both the claim and counter-claim. Where an appellate Court is faced with an appeal against an order of retrial, it must ensure that, if the appeal is dismissed, its judgment will not prejudice such a retrial in view of the doctrine of stare decisis which binds the courts below the appellate court.
Issue No.2 relates to the interpretation of section 5(2) of the Land Use Act. This relevant section provides:
“S.5(2) Upon the grant of a statutory right of occupancy under the provision 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.”
The defendant in his brief of argument pointed out that his own certificate of occupancy which is valid and subsisting was granted to him and one Alhaji Musa Gobme as evidenced by Certificate of Occupancy No. 251 dated 21/8/78 by the Jos Local Government “in respect of the land the subject mailer of these proceedings” and submitted that the subsequent grant by the Governor of a right of occupancy in respect of the same piece of land or a piece of land already granted to the defendant cannot be said to have extinguished the right of the defendant and cited Dantumbu v. Adene & Ors. (1987) 4 NWLR (Pt.65) 314/326; and Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387/416 more so in that the certificate of occupancy No.25 I granted by the Jos Local Government has not been revoked.
In the brief filed on behalf of the plaintiff, learned counsel pointed out a misconception of the conclusion of the lower court by the defendant in that neither party was able to satisfy the court that the land claimed by each party falls within the land claimed by either of them. I will now turn to the conclusion reached by the Court of Appeal, but before doing so, I will point out that there is no right of appeal by a litigant from the decision of the High Court of any State to the Supreme Court. By virtue of the provision of s.213(1) of the 1979 Constitution, appeal lies from the Court of Appeal either as of right or with leave to this Court. Consequently it is the decision of the lower court that can be attacked by a ground of appeal; Odunayo v. The State (1972) 8-9 S.C. 290. In the course of argument, reference will be made to the findings of the trial court if only to point out the error of the Court of Appeal. The Court of Appeal when dealing with the uncertainty of the land claimed by either side said:
“In my judgment, the order of the learned trial judge excising the land claimed by the defendant can only by right if:-
(1) The said land has been sufficiently related to the land claimed by the plaintiff, and
(2) The defendant’s right or title in the land as claiming (sic) is on the same pedestal as the plaintiff’s right or title in the land to be eased. In other words the defendant’s right or title or interest in the land claimed by him must not be less than that of a holder of a statutory right of Occupancy in the said land.
Ground one of the plaintiff’, grounds of appeal specifically complaints about the uncertainty of the portion of land excised from the land claimed by the plaintiff and given to the defendant.
It is to be noted that there is no composite plan in this case showing the relationship between the land claimed by the plaintiff and the portion claimed by the defendant.”
As correctly pointed out by Mr. Kayode Sofola during his oral submission, there is no ground of appeal attacking this finding of the Court of Appeal. Where a party has not appealed against a finding of the trial court or the Court of Appeal he cannot be heard to question that finding on appeal: Ijale v. Leventis & Co. Ltd. (1959) SCNLR 255, (1959) 4 F.S.C. 108. It is implied that any Certificate of Occupancy granted must be in respect of a definite, specific or ascertainable piece or parcel of land. Where an area of land is uncertain, it will be difficult to prove trespass and thereafter grant injunction. Where an action is for declaration of title, the onus is on the person claiming the declaration to identify the area of land with certainty and prove the boundaries of the land in dispute: Epi & Anor. v. Algbedon (1972) 10 S.C. 53; Baruwa v. Ogunsola (1938) 4 WACA 159; Algbedion v. Dr. Olumide (1969) N.S.C.C.202. The failure of either party to prove land claimed led to the order for retrial made by the court when it will lead to a miscarriage of justice not to order a retrial. If there is a ground of appeal that the Justices of the Court of Appeal erred in law in their conclusion that the portions of land covered by the Certificate of Occupancy or Statutory right of occupancy of the defendant is uncertain, then if this Court finds in favour of the defendant on that ground then the construction of s. 5(2) of the Land Use Act will be relevant to this appeal.
All the cases relied on by both parties on issue of s.5(2) of the Land Use Act are predicated on a definite and specific area of land covered by the Certificate of Occupancy. It is for each party to prove conclusively the area of land covered by the Certificate of Occupancy more so when each party relied on a valid Certificate. As at the moment, suffice it to say that the decision of this Court in Titiloye v. Olupo (supra) has stated the correct position of the law with regard to section 5(2) of the Land Use Act. See also Saude v. Abdullahi (supra). The presumption that a holder of a Certificate of Occupancy is prima facie evidence to title and its exclusive possession is reputable, hence the pertinent observation of the lower court per Agbaje, J.C.A:
“It appears from the averments in the defence and the counter-claim that the land the subject-matter of the counter-claim is a portion’ of the land claimed by the plaintiff.
So a decision on the plaintiff’s claim could not really be divorced a decision having regard to the averments in the defence and counter-claim as I have just stated.”
Consequently to consider the construction placed on s.5(2) of the Land Use Act by either party at this stage will, in my vie,:” tie the hands of the judge that will hear the case de novo.
I now come to the third issue i.e. failure of the Court of Appeal to enter judgment in favour of the defendant for the plaintiff’s failure to file a defence to counter-claim.
It is true a counter-claim is a cross-action; Oragbade & Ors. v. Onitiju (1962) 1 SNLR 70; (1962) N.S.C.C. 16. It is equally affected by the rules of pleadings. If one looks at the counter-claim which has been earlier on reproduced in this judgment, it is defective in form as it is bound by the same rules of pleadings. There is no doubt that where a plaintiff fails to file a defence to a counter-claim that the defendant can file a motion for a summary judgment. In the absence of a defence to a counter-claim no issue has been joined, the court “is in duty bound in such a situation to enter judgment for the claim in the counter-claim; Nigerian Housing Development Society Ltd. v. Mumuni (1977) 2 S.C. 57; Ogbonna v. The Attorney General of Imo State (1992) 1 NWLR (Pt.220) 647/675. The position in this appeal is different in the sense that all the issues raised with regard to the issue of title to the land in dispute were met in the plaintiff’s pleading. The main issue is who, in view of the reliance placed on the Certificate of title, is entitled to the land The findings of the lower court are that the claim and the counter-claim ” are intertwined and interwoven”. The Court of Appeal Agbaje, J.C.A. said:
“It is to be noted that the facts relied upon by the defendant in his statement of defence in answer to the plaintiff’s claim are the same as the facts the defendant is relying upon as giving rise to his counter-claim against the plaintiff on the issue (of) title to the land the plaintiff was claiming.”
It is therefore clear that no judgment could have been given for the defendant on the counter-claim without considering the evidence led in respect of the facts pleaded by the plaintiff. It is my view that although no defence as such was filed to the counter-claim there was evidence led which could have been considered when considering the counter-claim.
On the whole, I will dismiss the appeal with cost of N1,000.00 in favour of the plaintiff. I hardly need to remained the parties in this case to bear in mind the orders made by the lower court in so far as the issue of retrial is concerned.
KUTIGI, J.S.C.: I read in advance the judgment just delivered by my learned brother Olatawura, J.S.C. I agree with his reasoning and conclusions. In view of the proposed final order. I do not think it will be wise to advance any opinion on the provision of section 5 sub-section 2 of the Land Use Act 1978 at this stage.
The appeal is dismissed with N1,000 costs against the appellant. The judgment of the Court of Appeal, Jos, delivered on the 1st day of June, 1987 is accordingly confirmed. For the avoidance of doubt the claim and counter-claim are sent back for a retrial in their entirety before another judge of the High Court, The parties shall be at liberty to amend their pleadings and in particular the plaintiff/respondent is granted leave to file a defence to the counter-claim out of time.
SC.62/1989
