IN THE HIGH COURT OF JUSTICE OF PLATEAU STATE OF NIGERIA
HOLDEN AT JOS
BEFORE HIS LORDSHIP: JUSTICE M. I. SIRAJO….JUDGE
ON FRIDAY THE 16TH DAY OF MAY, 2014
SUIT No: - PLD/J419/07
BETWEEN:-
MR. SUNDAY EKOZIN
SHEHU SANI
WOLI EGERTON
(Suing For themselves and representing
Members of Association of African Miners ……………PLAINTIFFS
(Now Miners Association of Nig)
4. REGISTERED TRUSTEES OF MINERS
ASSOCIATION OF NIGERIA
AND
JOS ELECTRICITY DISTRIBUTION COMPANY PLC
(Substituted for Power Holding Company
of Nig. PLC) ………DEFENDANTS
2. THE GOVERNOR OF PLATEAU STATE
3. THE HON. COMMISSIONER, MINISTRY OF
LANDS, SURVEY AND TOWN PLANNING.
JUDGMENT
On 25th October, 2007, the 1st, 2nd and 3rd plaintiffs commenced this suit against the defendants, for themselves and as representatives of members of Association of African Miners, now Nigerian Miners Association. On 10th February, 2009, the plaintiffs applied for the joinder of the 4th plaintiff and the application was granted on 18/02/2009. The Writ of Summons and Statement of claim underwent series of amendments in the course of the proceeding with the extant ones being:-
(a)Second amended Writ of Summons issued on the 14th day of February, 2014.
(b)Third amended statement of claim dated 28th January, 2014 but filed on 13th February, 2014.
On the part of the first defendant, its extant pleading is the amended statement of defense dated and filed on 31st March, 2009.
The 2nd and 3rd defendants’ extant pleading with which they defended this suit is their amended statement of defense dated 30th March, 2009 but filed on 15th July, 2009.
At paragraph 33 of the 3rd amended statement of claim, the plaintiffs claim against the defendants jointly and severally, the under-mentioned reliefs:-
“a) A declaration that the 1st defendant trespassed onto the plaintiff’s land situate at Tafawa Balewa Street, Jos measuring over 0.648 acre and decorated by beacons of P.3803, P.3804, P.3805,P.3839 and P.8615 and covered by C of O No 13404 issued by the then Northern Nigeria now Plateau State.
b) A declaration that the 2nd and 3rd defendants having not in any way revoked the title of the plaintiffs covered by the said C of O. No. 13404 or any part thereof cannot allocate same to the 1st defendant.
c) A declaration that any purported grant, allocation, part surrender, revocation of the plaintiffs land measuring over 0.648 acre and demarcated by beacons p.3804, p.3805, p3838, p.3839 and p.8615 or a part thereof by the 2nd and 3rd defendants to the 1st defendant is null and void for non-compliance with the relevant statutory provisions.
d) A declaration that the plaintiffs are registered owners and title holders of the property lying and situate at Tafawa Balewa Street, Jos measuring over 0.648 acre and demarcated by beacons p.3803, p.3804, p.3805, p.3838, p.3839 and p.8615 and covered by C of O No. 13404.
e) An order directing the 1st defendant to demolish or remove any structure/equipment it might have put on the plaintiffs land or allow the plaintiffs demolish/remove same on proper cost and expenses of the 1st defendant.
f) An order of perpetual injunction restraining the 1st defendant whether by itself, servants, agents, or privies from further act of trespass or from remaining on the property covered by C of O No. 13404 situate at Tafawa Balewa Street, Jos
g) N10,000,000.00 (Ten Million Naira Only) general damages against the 1st defendant for trespass.
OR ALTERNATIVE TO (E) (F) (G) ABOVE:
The plaintiffs claim against the 1st defendant the sum of N50 Million as damages for trespass, illegal/unlawful acquisition of plaintiffs’ land and for the value of the portion of C of O No. 13404 encroached upon.”
The two sets of defendants respectively denied the plaintiffs’ claim through the separate defences filed by them.
In proof of the reliefs claimed, the plaintiff called a total of five witnesses and tendered five exhibits marked “A”, “B”, “C” ,“D” “E”. The two sets of defendants called a witness each. One exhibit, marked exhibit “F” was tendered by the 2nd and 3rd defendants.
From the pleadings and totality of the evidence, the respective cases of the parties can be summarized thus:-
Plaintiffs’ case.
The plaintiffs’ case is that they are owners of a piece of land situate at No. 2 Tafawa Balewa Street, Jos, and covered by a Certificate of Occupancy No. 13404 issued by the then Northern Nigeria Ministry of Lands and Survey, Kaduna, on 1st May, 1965. The Certificate of Occupancy is in the name of Association of African Miners, the predecessor to Miners Association of Nigeria. The 1st, 2nd and 3rd plaintiffs are all officers of the 4th defendant, Association of African Miners. The first plaintiff doubles as chairman and also a trustee of the 4th defendant together with the 3rd defendant. The second defendant is the Secretary of the 4th defendant. Sometimes in 2005 and 2006, the first defendant trespassed into a portion of the land belonging to the plaintiffs and built a bungalow and a sub-station thereon without the consent of the plaintiffs.
1st defendant’s case
The case of the first defendant is that it did not encroach upon the land of the plaintiffs, rather, it was granted the portion upon which it built the Injection substation by the Administrator of Plateau State consequent upon its application. The first defendant maintained that its desire to give Plateau people enhanced power supply compelled it to apply to the 2nd and 3rd defendants for the allocation of the land in dispute, which allocation was approved by the 2nd defendant. The request was made on 27th April, 2004 while the approval was conveyed to the first defendant by a letter dated 17th December, 2004. Right of Occupancy No. PL 44003 was issued to the first defendant in respect of the land in dispute and is dated 26/10/2006.
2nd and 3rd defendants’ case.
This set of defendants admitted that the land in dispute originally belonged to the 4th defendant. The 2nd and 3rd defendants stated that following a request for that specific land by the 1st defendant for the building of a substation in order to improve electricity supply to the people, they allocated the land to the 1st defendant, after same was donated by the 4th defendant, following series of meetings.
At a meeting held on 6th July, 2004 at the office of the Permanent Secretary of the 3rd defendant, the plaintiffs who were represented by Alhaji Gambo Khalid agreed to cede the portion of their land to the 1st defendant for purpose of building a substation. Consequently Da D.B. Zang (of blessed memory), the then president of the plaintiffs donated the land in dispute in a letter addressed to the 3rd defendant dated 15th July, 2004. Following this donation, the 2nd and 3rd defendants then allocated the land to the 1st defendant for the purpose aforesaid.
With the testimony of DW2, who was the last witness for the defence, I ordered the defendants to file written final addresses within two weeks while the plaintiffs were given one week to file their final written address from the date of service on them of the addresses of the two sets of defendants. That order was made on 31st March, 2014. The second and third defendants filed their address on 14th April, 2014 as settled by Y. N. Jwander (Mrs.), Assistant Chief State Counsel with N. J. Miner and C. R. Naanmiap, all of them Senior State counsel. On behalf of the first defendant, final written address was filed by M. A. Ekone Esq on 22nd April, 2014. Learned counsel for the plaintiffs, E. O. Okoro Esq filed the plaintiffs’ final address on 17th April, 2014. He also filed a response to the first defendant’s address on 24th April, 2014. All these addresses were adopted by their respective authors and counsel for the parties on 30th April, 2014. After adopting his address, M. A. Ekone Esq of counsel to the first defendant urged the Court to discountenance the plaintiffs’ response to his address as the procedure is strange. On his part, E. O. Okoro Esq urged the Court to discountenance the address filed on behalf of the first defendant as it was filed out of time and without the leave of Court.
The order of filing addresses where both parties have adduced evidence in a trial is that the defendant will first address the Court before the plaintiff. After the plaintiffs’ address, the defendant is entitled to reply only on points of law. There is no right of reply for the plaintiff. See Order 37 Rules 21 and 22 of the Plateau State High Court (Civil Procedure) Rules, 1987 (as amended). See also Willoughby vs. International Merchant Bank (Nig.) Limited (1987) SC.137. In the circumstance, the address filed by the learned counsel for the plaintiffs titled “Response to the 1st defendant’s address” has no legal basis and is therefore discountenanced.
On the written address of the first defendant which was filed on 22nd April, 2014, it is clear that on 31st March, 2014, I directed the defendants to file their final addresses within two weeks. The two weeks ended on 14th April, 2014. In the order made on 31st March, 2014, I did not state that the address of the 2nd and 3rd defendants shall first be filed before that of the first defendant. The two sets of defendants were given two weeks within which to file their respective addresses. The 2nd and 3rd defendants complied while the first defendant filed its address on 22/04/2014, 6 days outside the time allotted. The argument of Mr. Ekone on behalf of the first defendant that the time allotted the first defendant will only begin to run after the service on it of the address of the 2nd and 3rd defendants is neither supported by the record nor by the Rules of Court. As a matter of fact the Rules of Court is silent on the order of addresses where there are many defendants and different counsel representing them. This lacuna prompted a learned Author to suggest that in such situation, the Rules of the Supreme Court of England may be followed. In his Book “Civil Procedure in Nigeria, 2nd Edition, Fidelis Nwadialo, SAN, stated with reference to Order 35 Rule 7 (5) of the Supreme Court Rules (England):-
“(D) if each of them (the defendants) elects to adduce evidence, each opens his case and gives evidence in the order they appear on the record and the closing speech will be made by each in the same order after evidence on behalf of all the defendants has been given.”
Going by this opinion, it is crystal clear that the first defendant cannot await the filing of the address of the 2nd and 3rd defendants before filing its own. It is either they file the addresses contemporaneously or the first defendant files its address first. The order of this Court made on 31st March is that the addresses of all the defendants be filed within the allotted two weeks. Having been filed out of time without the leave of Court, the address of the first defendant is hereby discountenanced.
In the final address of the 2nd and 3rd defendants, Mrs. Y. N. Jwander formulated a single issue for determination, viz;
“Whether the plaintiffs have proved their case on the preponderance of evidence to entitle them to the reliefs sought.”
E. O. Okoro Esq; of counsel to the plaintiffs formulated two issues which in his view calls for determination by this Court as follows:-
“1. Whether the plaintiffs have established their claims before the Court and thus entitled to the reliefs sought.
2. Whether the plaintiffs have established clear case of trespass against the 1st defendant having regard to the principle of NEMO DAT QUOD NON HABET.”
Issue one of both the plaintiffs and the 2nd and 3rd defendants are identical, while issue two formulated on behalf of the plaintiffs is subsumed by issue one. It is not an issue that can stand alone in view of the way and manner issue one is couched. The resolution of issue one, one way or the other, will render issue two otiose.
I will therefore proceed to the determination of this suit on the identical issue one formulated by the plaintiffs and the 2nd and 3rd defendants.
Presenting argument on the lone issue formulated by her, the learned Assistant Chief State counsel, Y. N. Jwander (Mrs.) submitted that it is not in dispute that the original owners of the land are the plaintiffs. This submission is in tandem with paragraphs 4(b) and (c) of the Amended Statement of defense of the second and third defendants. The first defendant did not admit that the original ownership of the land in dispute vested in the plaintiffs. The denial by the first defendant of the original ownership of the land by the plaintiffs is not of any material import in that the 2nd and 3rd defendants who allotted the land to the 1st defendant have unequivocally admitted both in their pleading and evidence that the original ownership of the land is vested in the plaintiffs. It is my finding therefore, that from the totality of the evidence before me the land in dispute originally belonged to the Association of African Miners now Miners Association of Nigeria, and is covered by Certificate of Occupancy No. 13404.
After making reference to the evidence of DW1, Dauda Shut, an officer with the Ministry of Lands, Survey and Town Planning, Mrs. Jwander submitted that from the content of exhibit “F” it can be discerned that Da D. B, Zang donated the land on behalf of the Miners Association of Nigeria for the use of the first defendant. She referred to the property file No. PSG 1168 titled “Application for a parcel of land for use of an Injection sub-station by NEPA in Jos North L.G.C. Plateau State” which contained all the correspondences leading to the allocation of portion of the plaintiffs’ land to the first defendant. That file was tendered by DW1 and marked exhibit “F”. It is her submission that the plaintiffs have failed to prove their case in that:-
On the whole, Mrs. Jwander urged the Court to dismiss the suit for lacking in merit after citing two authorities on burden of proof, i.e. Portharcourt City L.G.C vs. Ekeocha ((2008) ALL FWLR (Pt. 422) 1174 @ 1184 and Atoro Afuru vs. Akinleye (2006) ALL FWLR (Pt. 337) 526.
After summarizing the evidence of the five witnesses called by the plaintiffs, E. O. Okoro Esq; submitted on behalf of the plaintiffs that the evidence of these witnesses is very credible having not been contradicted under cross examination. He submitted that from the evidence led by the plaintiffs the following facts are established.
“a) That the plaintiffs are the title holders of the land covered by C of O No. 13404 situate at No. 2 Tafawa Balewa Street, Jos.
b) That it was the 2nd defendant who encroached and trespassed on a portion of the land measuring 0.096 hectares (957.25m2)
c) That the Board of Trustees and members of the 4th plaintiffs were not privy to any meeting to donate the land and did not authorize anybody including Gambo and D. B, Zang to do so.
d) That the 4th plaintiff title to the property covered by C of O 13404 has not been revoked or part surrendered to any person.
e) That the plaintiffs prior to the trespass by the 1st defendant were in active possession of the land by establishing that they have the building housing their National Headquarters Hall, 3 bedroom flat, Boys quarters and offices on the land.
f) The plaintiffs have also led credible evidence of the steps they took to stop the 1st defendant from further trespass.”
I will now gauge the submissions of learned counsel for the parties with the evidence on record. PW1, Friday Brume has been a member of the Miners Association of Nigeria since 1983. PW2, Sunday Afolabi Thomas, PW3, John Magnus Okonkwo and PW4, Woli Egerton are all members of the Board of Trustees of the Miners Association of Nigeria, successor to Association of African Miners. PW1, Friday Brume is an elected Exco member of the 4th defendant, Plateau State Branch. In addition to being a member of the Board of Trustees, PW4 is also the Publicity Secretary of the 4th defendant. In their respective evidence before the Court, PW1, PW2, PW3 and PW4 all denied donating the land in dispute to the first defendant and also denied authorizing either Gambo Khalid or Dalo Da D. B. Zang to donate the said land to the first defendant. Relevant portions of their testimonies in that regard is here-below reproduced:-
PW1
“The Board of Trustees of our Association did not donate the land to the 1st defendant. Our Association never at anytime delegates Gambo Khalid to donate the land to anybody. Gambo Khalid was at one time an EXCO member of the Association. There was no time that D. B. Zang wrote a letter to the Lands and Survey donating the land to them or to anybody.”
PW2
“I know No. 2 Tafawa Balewa Street, Jos, it belongs to Assocation of African Miners, now Miners Association of Nigeria. The entire land was covered by C of O. We acquired the land in 1944. Our C of O was never revoked in part or in whole by anybody. We noticed people working on the land and when we queried they said they were acting on orders from above … Our Association did not send Gambo Khalid to represent us in a meeting with Government. The Association also did not ask D. B. Zang to donate our land to Government.”
Under cross examination by Mr. Ekone PW2 said:-
“D. B. Zang and I were Co-Trustees of the Association. The others are Dr. Sunday Ekozin (1st Plaintiff) and Chief Nwokolo (now late). I came to give evidence on behalf of the Association. We did not query D. B. Zang for anything. Shehu Sani (the 2nd plaintiff) is now the National President of the Association. Between 2005 – 2007 Shehu Sani was our Chairman. We did not hold any meeting over the land at all.”
PW3
“We did not consent or give anybody the right to consent to the grant of the land to the first defendant. At the time, D. B. Zang was sick and for over two years he has not been attending meetings. We did not mandate Gambo Khalid or anybody to do away with any part of our property.”
Under cross examination by Mr. Ekone, PW3 testified thus:-
“Now PHCN have their structures and building on the land. It took time before PHCN built the structures on the land. Through out the period PHCN was building we did not go to Court but we informed our Barrister.”
While being cross examined by Mrs. Jwander, PW3 said the second plaintiff was just a member of the Association during the period of the facts leading to this suit.
PW4
“In 2005/2006 we saw construction going on the property and we do not know who was doing it. Alhaji Sani notified us and we summoned a meeting. It took us a lot of time to organize ourselves to meet in Abuja because we have many state branches. We decided in our meeting that we should write to the State Government, which I did. The Government did not reply. (The said letter dated 6/2/2006 is exhibit ‘C”)… I went to Lands and Survey and called for our file. When I looked at it I did not see any revocation. I therefore paid for the ground rent and was issued a receipt for 2005, 2006 and 2007. (The receipt is exhibit “D”) ... It is not possible for D. B. Zang and Khalid to donate our land. Alhaji Shehu SAni was the one who informed us about the encroachment, so he could not have written to the DPO to say the Association donated the land…. We ask for alternative claim of N50,000,000.00 because in the past Corporate Affairs Commission and some Banks wanted to buy the place for N100,000,000.00 but we refused to sell.”
The Deeds Registrar in the Plateau State Ministry of Lands, Survey and Town Planning, John Richard, testified as PW5. He produced and tendered in evidence as exhibit “E”, the property file No. 13404 in the name of Association of African Miners. He testified further that:
“The title is a Certificate of Occupancy. There is nowhere in the file where the interest of the title holder in part or in whole was revoked. Nowhere in the file was any application written by the title holder for part surrender of any portion of her land. It is true that this file contains all the transactions relating to that land starting from the date the land was given to date.”
Under cross examination by Mr. Ekone, this is what PW5 said:
“The Government of Plateau State is my employer. I am here in Court to represent the Commissioner of the Ministry of Lands, Survey and Town Planning. I do not know the dispute between the parties in this suit. Yes, I was only asked to come and tender this file. I left the subpoena in the Ministry as I rushed to Court from home.”
In response to questions from Mrs. Jwander, PW5 said:
”I am not aware that the plaintiffs and the defendants have been meeting on this issue. I am not aware that another file was opened in respect of this same property.”
In response to the evidence led by the plaintiffs, the 2nd and 3rd defendants called Dauda Shut, a staff of the Ministry of Lands, Survey and Town Planning, Jos, who testified on their behalf as DW1. He testified that:-
“The first defendant applied for a piece of land from part of Certificate of Occupancy No. 13404 which the Ministry forwarded to the Miners Association, owners of the Certificate of Occupancy No. 13404. We opened a file for the request titled PSG 1168. (The file is exhibit “F”)”
According to DW1, two meetings were held with the representatives of the Miners Association on 29/06/2004 and 6/07/04. He referred to pages 13 and 15 of exhibit “F” which contained minutes of the two meetings. After making reference to pages 18, 28, 41 and 42 of exhibit “F”, DW1 summed up his evidence thus:-
“The record shows that the plaintiffs freely donated the land to NEPA without asking for any compensation.”
Under cross examination by Mr. Okoro on behalf of the plaintiffs, DW1 said inter alia:
“Where a title holder wants to give a gift or part surrender, he executes a Deed. I have seen a letter at page 76 of exhibit “E” dated 29/06/04 addressed to the Chairman, Association of African Miners signed by Barrister A. B. Muttang. There is nothing like part surrender from exhibit “E”. There is no letter revoking the C of O in exhibit “E”. I have not seen any copy of R. of O or C of O in exhibit “F” in favour of PHCN.”
DW1 said that the signatures at pages 14, 16 and 42 of exhibit “F” allegedly made respectively by Timothy Sonki, Alhaji Gambo Khalid and D. B. Zang are not only similar but made with the same black ink. DW1 also testified that the letter headed papers at pages 28 and 42 of exhibit “F” are not the same. That while there is no letter to show that Timothy Sonki was sent to represent the Association in the first meeting, Alhaji Gambo Khalid represented D. B. Zang in the second meeting at the Ministry.
In its own response to the evidence of the plaintiffs, the first defendant called Engineer Mansur Salihu Nakande who testified as DW2. He told the Court that because of their desire to improve their service delivery to Jos Central, they applied to the Plateau State Government for land to locate the Injection sub-station at the West of Mines T-junction where the 1st defendant already had a facility. The Government gave the 1st defendant the approval to commence the construction of the sub-station. Under cross examination by Mr. Okoro, DW2 maintained that the only action taken by the first defendant was to apply for the land. He does not know whether the first defendant has title document over the land.
This is a suit seeking for declaration as to title, trespass, order of perpetual injunction and damages, among other reliefs. The central reliefs are declaration of title and trespass. There are five ways of proving title to land as now settled by a chain of judicial authorities since the decision of the Supreme Court in Idundun vs. Okumagba (1976) 9 – 10 SC 227. They are:-
a)By traditional evidence.
b)By Production of documents of title
c)By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
d)By acts of long possession and enjoyment.
e)Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes anyone of them. See Adeyemo vs. Adeyemo (2010) LPELR 3621 (CA); Momoh vs. Umoru (2011) LPELR 8130 (SC); Onwubueriri vs. Igboasoyi (2011) LPELR - 754 (SC); Ayanwale vs. Odusami (2011) LPELR – 8143 SC.
The plaintiffs have led credible and unchallenged evidence to show that the land in dispute is part of a larger piece of land upon which a Meeting Hall, offices, 3 bedroom bungalow and Boys quarters were erected by them, and also that the land is covered by Certificate of Occupancy No. 13404. This fact was not challenged by both defendants. Indeed, the 2nd and 3rd defendants confirmed the ownership of the 4th plaintiff over the land in dispute. Exhibit “E” which was produced and tendered by the Deeds Registrar further cemented this fact. I therefore find that the land in dispute situate at No. 2 Tafawa Balewa Street, Jos covered by Certificate of Occupancy No. 13404 belonged to the 4th defendant. But will this finding be sufficient enough to lead to the granting of the reliefs sought by the plaintiffs? This will now take me to the consideration of the next issue regarding the donation of the land by the plaintiffs to the first defendant vis-à-vis the power of the second defendant to revoke title comprised in a Certificate of Occupancy and how that power is exercisable. Generally, burden of proof in a civil proceeding is on the party who asserts or alleges. The plaintiffs are asserting that their land covered by Certificate of Occupancy No. 13404 has been encroached upon by the first defendant. The land is situate at No. 2 Tafawa Balewa Street, Jos. The first defendant admitted constructing a house and installing an Injection substation on the land, but maintained that the land was granted to it by the 2nd and 3rd defendants. The plaintiffs are therefore offloaded of the burden of proving that the first defendant entered the land by the said admission of the first defendant. The first defendant is however saying that it entered the land legally by virtue of approval given to it to do so by the 2nd and 3rd defendants. This assertion of the first defendant is supported by page 41 of exhibit “F” in which one Barrister A. B. Muttang conveyed the approval in a letter dated 17th December, 2004. The 2nd and 3rd defendants who granted the approval to the first defendant for the construction and installation of Injection substation on the portion of land of the 4th defendant maintained that the said portion was donated by the 4th defendant for the use of the 1st defendant.
Section 136 (1) of the Evidence Act, 2011 provides that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in the existence of that fact. Having admitted that the plaintiffs are the original owners of the land in dispute with C of O No. 13404, the 2nd and 3rd defendants want the Court to believe that the portion of the land on which the first defendant constructed a sub-station was donated by the plaintiffs before same was allocated to the 1st defendant. The burden of proving the fact of donation therefore squarely rests on the 2nd and 3rd defendants who asserts that fact. I said so because the plaintiffs have already proved their title over the land in dispute by the production and tendering of exhibit “E”. In Imana vs. Robinson (1979) 3 – 4 SC 1, the Supreme Court, per Aniagolu, JSC said at pages 11- 12 of the report;
“The burden of proof, in this sense, rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue … It is fixed at the beginning of the trial by the state of the pleadings and it is settled as a question of law, remaining unchallenged throughout the trial .
See also Jack vs. Whyte (2001) 6 NWLR (Pt. 709) 266.
Having pleaded that the land in dispute was donated by the 4th defendant, it is the duty of the 2nd and 3rd defendants who asserted this particular fact to prove same. The evidence of DW1 is that following a request for a piece of land from part of Certificate of Occupancy No. 13404 owned by Miners Association, the 3rd defendant summoned and held two meetings with the representatives of the plaintiffs and the first defendant as a result of which the plaintiffs agreed to donate the land in dispute. The meetings were held on 29th June and 6th July, all in 2004, at the office of the Permanent Secretary of the 3rd defendant. Pages 13 – 16 of exhibit “F” are minutes of the said meeting. DW1 said that the land was freely donated without compensation. He referred the Court to pages 18, 28, 41 and 42 of the exhibit “F” in support of his evidence above. Page 18 of exhibit “F” is a letter of appreciation for the donation of the land written by Barrister A.B. Muttang on behalf of the Permanent Secretary, Ministry of Lands, survey and Town Planning, Plateau State and addressed to the President, Association of African Miners. That letter is dated 4th August, 2004.
Paragraphs 2 and 3 of the letter reads:-
“I am forwarding herewith copies of the minutes of meeting during which decisions were arrived at. It is in this light that I have further been directed to request you to formally write this Ministry indicating that the piece of land was donated for the use of NEPA. (Installation of a transformer and an Injection substation at West of Mines).
We shall appreciate your good gesture by prompt response”
(underlining for emphasis)
Page 28 of exhibit “F” is an uncertified photocopy of a letter written by Sani Shehu, for President, Miners Association of Nigeria and addressed to “Divisional Police Officer, “A” Division, Jos, and is dated 16th September, 2004. The letter reads:
“16th September, 2004.
The Divisional Police Officer,
“A” Division,
Jos.
Sir,
RE: DONATION OF LAND AT TAFAWA BALEWA STREET, JOS FOR THE USE OF NEPA PSG 1168
This is to inform you that the above association have donated a piece of land at our national secretariat No. 2 Tafawa Balewa Street, Jos. This is a covered by C of O No. 13404.
Land was donation in other to facilities NEPA install its transformer therefore the activities of NEPA official is done with our consent.
Assuring you our co-operation in the event of further investigation.
Yours faithfully,
Signed
Sani Shehu
(For President Miners Association of Nigeria)”
Though a photocopy and uncertified, this letter was not addressed to the Ministry of Lands, Survey and Town Planning, Plateau State. The letter is addressed to the Divisional Police Officer, “A” Division, Jos. How the letter found its way into exhibit “F” in its present form is not explained by DW1. The DPO “A” Division Jos, to whom the letter was addressed has not certified it. Furthermore, from the content of the letter, it does appear that it was written during an investigation by the Police. This letter is not a reply to the letter at page 18 of exhibit “F” which requires the President of the Miners Association to formally write to the Ministry of Lands, Survey and Town Planning indicating that the Association has donated the land in dispute for the use of the 1st defendant. The Ministry of Lands, Survey and Town Planning recognizes the importance of a formal document evidencing the donation of the land, hence their letter of 4th August, 2004 at page 18 of exhibit “F”. Having not been parties or even privies to the correspondence at page 28 of exhibit “F” the 2nd and 3rd defendants cannot rely on it to prove that the plaintiffs, particularly the 4th plaintiff has donated the disputed land for the use of the 1st defendant. See Ebhota vs. P.I.P.C Ltd (2005) 15 NWLR (Pt. 945) 266. Accordingly, I hold that even if page 28 of exhibit “F” was duly certified by the Divisional Police Officer, “A” Division, Jos, it cannot be relied upon as proof of donation of the disputed land by the 4th plaintiff, to the extent that it was not addressed to the 3rd defendant and it was not written in response to the 3rd defendant’s letter at page 18 of exhibit “F”. That is not the end of the matter though. DW1 also referred to pages 41 and 42 of exhibit “F”. Page 41 is a letter by the same Barrister A. B. Muttang to the Business Manager, NEPA District Office, Jos, conveying approval for the grant of a piece of land measuring 0.096 hectres, along Tafawa Balewa Street, Jos for the installation of Transformer. The letter is dated 17th December, 2004. There is no problem at all with this letter. At page 42 is a letter written by Dalo D. B. Zang, National President, Association of African Miners, addressed to the Permanent Secretary, Ministry of Lands, Survey and Town Planning Plateau State, Jos. The letter is dated 15th July, 2004. The letter reads:
“15th July, 04
The Permanent Secretary
Ministry of lands, Survey and Town Planning
Plateau State
Jos,
Dear Sir
RE-REQUEST FOR LAND TO INSTALL TRANSFORMER BY NEPA
With reference to your letter dated 29th June, 2004 on the above subject matter, which you requested the association to write formally that the said land is donated free.
I am please let you know that the board of trustees and members of the association after a meeting which held on the 8th of July, 2004 had agreed to assign a portion of land within our certificate of occupancy No. 13404 situated at No. 2 Tafawa Balewa Street, Jos free of charge.
The above patriotic decision was reached or made as our own contribution towards having a reliable power supply in the state and the development of the state and the nation in general. Thank you and Best regard.
Yours faithfully,
Signed
Dalo D. B. Zang, FRM, MFR
(MPMA 1993) Wazirin Jos
National President Ass. Of African Miners”
We have now come to the end of the pages to which the Court was referred by DW1.
To start with DW1 and the learned counsel for the 2nd and 3rd defendants have not referred the Court to any letter dated 29/06/04 which this letter is making reference to. I undertook a journey of discovery into exhibit “F” but I could not find such a letter. Secondly, the letter at page 18 of exhibit “F” in which the 3rd defendant requested for a formal correspondence from the President of the 4th defendant donating the land in dispute clearly shows that as at the date of that letter, i.e.; 4th August, 2004, the 4th defendant was yet to donate the land. After the date of that letter there was no further correspondence from the 4th defendant donating the land. But at page 42 of exhibit “F” is a letter allegedly donating the land written three weeks before the request by the 3rd defendant for formal donation. This letter by Dalo D. B. Zang dated 15th July, 2004 raises very serious suspicion on its authenticity and reliability. Below are my reasons:
Pages 13 and 14 of exhibit “F” contained minutes of meeting held on 29th June, 2004. Among the seven (7) persons that attended the meeting was one Timothy Sonki who represented D. B. Zang and the Miners Association. He also signed the minutes of the meeting at page 14 of exhibit “F” along with three others. Again, at pages 15 and 16 of exhibit “F” which is the minutes of yet another meeting between the 4th plaintiff and the 1st and 3rd defendants held on 6th July, 2004, one Alhaji Gambo Khalid is listed as representing the Association of African Miners. Part of the minutes read:
“A representative of the Association of African Miners in the person of Alhaji Gambo Khalid informed members that he was representing Dalo D. B. Zang. He was sent to inform the committee of the willingness of their Association to cede off that portion to NEPA”
At page 16 of exhibit “F”, four persons signed the minutes of this second meeting including the representative of Association of African Miners, i.e., Alhaji Gambo Khalid. A comparison of the signatures of the representatives of African Miners at pages 14 and 16 of exhibit “F”, i.e., Timothy Sonki and Alhaji Gambo Khalid and that of Dalo D. B. Zang at page 42 of the same exhibit will reveal clearly that all the three signatures are the same. If Timothy Sonki was the person who signed at page 14 and Alhaji Gambo Khalid signed at page 16 and then Dalo D. B. Zang signed at page 42, how comes the signatures are identical? Does it mean that Timothy Sonki, Alhaji Gambo Khalid and Dalo D. B. Zang all have the same signatures? This is neither probable nor possible. What is more, the three signatures at the different pages of exhibit “F” allegedly made at different dates have the same shade of black ink. The signatures are not only made in black ink but have the same shade of black ink. This fact was confirmed by DW1 while answering questions under cross examination. These identical signatures has not only affected the authenticity and reliability of the letter at page 42 of exhibit “F”, it also does the same to the minutes of the two meetings at pages 13, 14, 15 and 16 of the same exhibit. For this reason I cannot rely on the minutes of the two meetings held on 29th June, 2004 and 6th July, 2004 as the basis for the alleged donation of the land by the plaintiffs. For the same reason also, I cannot rely on the content of the letter allegedly written and signed by Dalo Da D. B. Zang as contained at page 42 of exhibit “F”. Further to the above analysis is the fact that the letter at page 42 of exhibit “F” predated the letter of the 3rd defendant requesting for a formal written authorization for the donation of the land. If the land has already been donated by the purported letter dated 15th July, 2004, there would have been no need for the Ministry, i.e. the 3rd defendant, to make a request on 4th August, 2004.
Answering question under cross examination, DW1 said that where a title holder wants to give a gift or part surrender, he executes a Deed. The 2nd and 3rd defendants have not shown the Deed executed by the 4th plaintiffs. DW1 also said that there is neither a part surrender in exhibit “E” nor a letter revoking the 4th defendant’s Certificate of Occupancy in exhibit “E”.
The result of all my preceding analysis is that the 2nd and 3rd defendants have failed to prove their assertion that the land in dispute was donated by the 4th plaintiff for the use of the 1st defendant.
Having failed to prove donation of the portion of C of O No. 13404 by the title holders, what is the validity of the grant of that portion by the 2nd and 3rd defendants to the 1st defendant?
Under section 28 of the Land Use Act the Governor of a State has power to revoke right of occupancy for overriding public interest. The requirement of the land by the Government for public purposes within the State falls within the definition of overriding public interest. Meanwhile, section 51 of the Act, which is the interpretation section interpretes the phrase “public purpose” to include obtaining control over land required for or in connection with the development of telecommunications or provision of electricity. In the instant case, the request for the land from the Government by the 1st defendant was for the purpose of enhancing electricity supply to Jos central, according to the evidence of DW2 and the contents of exhibit “F”. I can therefore safely hold that by the combined reading of sections 28 and 51 of the Land Use Act, the land in dispute was required for overriding public interest. Now the question that arises is this: Can the Governor validly re-allocate land or portion of land covered by a Certificate of Occupancy for public purpose without revoking the existing title? The answer to this question can be found in subsections 6 and 7 of section 28 of the Land Use Act and some decided authorities.
S. 28 (6) provides:
“The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the Governor and notice thereof shall be given to the holder.
(7) The title of the holder of right of occupancy shall be extinguished on receipt by him of a notice given under sub-section 6 of this section or on such later date as may be stated in the notice.”
From the totality of the evidence adduced by all the defendants including the exhibits tendered, there is nothing to show that part of the title of the plaintiffs’ over No. 2 Tafawa Balewa Street, Jos, comprised in Certificate of Occupancy No. 13404 has been revoked by the Governor of Plateau State. But assuming that plaintiffs’ title over the disputed land has been revoked, there is no evidence led before me to show that the notice of revocation has been served on the plaintiffs. The use of the word “shall” two times in section 28(6) connotes mandatoriness. Without revocation in a notice duly served, there cannot be re-allocation of an existing title to another, for whatever purposes. In the case of C.S.S. Bookshops Limited vs. Muslim Community in Rivers State (2006) 11 NWLR (Pt. 992) 530, also reported as (2006) LPELR 824 (SC), the Supreme Court, per Mohammed, JSC stated:-
“This Court has held in several decisions that the mere grant of a right of occupancy over an existing right of occupancy or interest, does not amount to the revocation of such existing interest as was being suggested in various arguments behind section 5(2) of the Land Use Act.”
The contributory judgment of Tobi, JSC is more pungent. This is what the learned Law lord said:
“In exercising the Governor’s power of revocation, there must be due compliance with the provisions of the Act, particularly with regard to giving of adequate notice of revocation to the holder whose name and address are well known to the public officer acting on behalf of the Governor … The purpose of giving notice of revocation of a right of occupancy is to duly inform the holder thereof of the steps being taken to extinguish his right of occupancy. In the absence of notice of revocation of right of occupancy, it follows that the purported revocation of the right of occupancy by the officer duly authorized by the Governor is ineffectual.”
In the case cited, the Governor had actually revoked the right of occupancy of the appellants and published the said revocation in Government Notice but the notice of revocation was not given to the appellants. In the instant case, there was even no revocation of the title of the plaintiffs. Also there was no grant of title to the first defendant. In the eyes of the law the first defendant has no interest over the land in dispute. The letter of grant written by Barrister A. B. Muttang to the 1st defendant cannot and does not transform into an interest over the land by the 1st defendant. The Governor has neither revoked the title of the plaintiffs over the land in dispute nor grant or confer any title over the said land to the 1st defendant.
Indeed, the Governor lacks the vires to reallocate or re-grant the land in dispute to the 1st defendant without satisfying the condition precedent by way of order of revocation and serving notice of revocation on the plaintiffs. Having failed to prove that the Governor has acquired the land in dispute through revocation of the title of the plaintiffs in Certificate of Occupancy No. 13404, the entry of the land by the first defendant without conferment of title is not made bona fide and therefore amounts to trespass. The tort of trespass is complete once there is a wrongful invasion of the private property of another by a person who cannot show a better right to possession. In this suit, the plaintiffs have proved that they have been in active possession of the land since 1965 when the Certificate of Occupancy was granted. They built a meeting hall, an office, a bungalow and a boys quarters on portion of the land before the invasion by the 1st defendant in the name of ineffectual grant by the 2nd and 3rd defendants.
At the early part of this judgment, I discountenanced the final address of the 1st defendant on the ground that it was filed out of time without leave of Court. Assuming (but not conceding) that I was wrong in that decision, I will now consider in the alternative, the merit of the said address in order to make this judgment comprehensive. Two issues are pertinent in that address – (1) Whether the joinder of the 1st, 2nd and 3rd defendants as plaintiffs is proper in law and; (2) Whether the 1st defendant can be held liable for trespass in that it honestly believed that it legitimately entered the property. On the first issue, there is evidence before me to show that the 1st, 2nd and 3rd defendants are all officers of the Miners Association with two of them been trustees. The fact that the Trustees of the Association can sue and be sued as a body corporate does not mean that the members of the registered trustees or officers of the Association cannot be joined along with the registered trustees either as plaintiffs or defendants. Body corporates executes their functions through officers. Where the officers along with the Body Corporate are suing or being sued there cannot be said to be a misjoinder.
On the second issue dealing with the honest believe by the 1st defendant in entering the land, my judgment would not be different even if I consider this issue as raised in the address. Honest believe cannot be relied upon to ground a defense in the instant case. The law only recognizes bona fide claim of right which is not the defense of the 1st defendants in this case. I therefore hold that the first defendant is liable in trespass. See Provost, Lagos State College of Education vs. Edun (2004) 6 NWLR (Pt. 870) 476; Yakubu vs. Impresit Bakolori PLC (2010) LPELR - 5110 (CA).
It is trite law that where the Court finds that trespass is proved, the claims for damages and injunction against further trespass, if made, must be awarded by the Court. See Yakubu vs. Impresit Bakolori (supra). The net result of my findings and legal analysis is that the plaintiffs are entitled to judgment in this suit, and I hereby enter judgment in their favor against the defendants. All the four declarations sought by the plaintiffs in paragraphs 33 (A), (B), (C) (D) of the 3rd amendment statement of claim are hereby granted. The two orders sought in paragraphs 33 (E) and (F) are also granted. Having suffered injury as a result of the illegal entry into their land by the 1st defendant, I hereby award the sum of N1,000,000.00 (One Million Naira) general damages to the plaintiffs against the 1st defendant.
That is the judgment of this Court.
Justice M. I. Sirajo
Judge
16/0/2014
Appearances:-
E. O. Okoro for the plaintiffs.
M. A. Ekone with W. O. Otuagoma and O. J. Nwosu for the 1st defendant.
Mrs. Y. N. Jwander, Assistant Chief State counsel, Plateau State with N.J. Miner, Senior State counsel and C. R. Naanmiap for the 2nd and 3rd defendants.
