Simon Akpa Vs Danlami Musa (Alias Do Good) & 4 Others
IN THE HIGH COURT OF JUSTICE OF KOGI STATE OF NIGERIA
IN THE KOGI STATE JUDICIAL DIVISION
HOLDEN AT KOTONKARFE
THIS MONDAY 4TH DAY OF OCTOBER 2010
BEFORE HIS LORDSHIP
HON. JUSTICE ALABA OMOLAYE-AJILEYE
SUIT NO: HCL/23/2007
SIMON A. AKPA - CLAIMANT
1. DANLAMI MUSA (ALIAS DO GOOD)
2. BALA IBRAHIM
(Sued as the 1st and 2nd Defendants for themselves
And on behalf of Lokoja Tipper Drivers Association)
3. JOHN SHAIBU DEFENDANTS
4. MINISTRY OF ENVIRONMENT AND PHYSICAL
DEVELOPMENT, KOGI STATE
5. ATTORNEY – GENERAL OF KOGI STATE AND
COMMISSIONER FOR JUSTICE
As endorsed on his writ of summons, the claimant claims against the defendants jointly and severally as follows:
a. ‘’A Declaration that the Claimant is the lawful holder of Right of Occupancy No.KG/7233 issued by the 4th Defendant herein on behalf of Kogi State Government on 27/09/2007 over a plot of land at plot 4, blocks 14 on TPS 116A situate along Ganaja Road, near Aniebo quarters, Lokoja –Kogi State.
b. A Declaration that the Claimant is the bonafide and beneficial owner of the parcel of land covered by Right of Occupancy No. KG/7233 lying and situate at plot 4, block 14 on TPS 116A along Ganaja Road, near Aniebo quarters, Lokoja- Kogi State.
c. N2,100,000.00 (Two Million, One Hundred Thousand Naira) only as general damages for trespass to land.
d. N427,770.00 (Four Hundred and Twenty Seven Thousand, Seven Hundred and Seventy Naira) as special damages for trespass to land.
PARTICULAR OF SPEICAL DAMAGES
i. Costs of 20 trips of laterite atN15,000.000 per trip = N300,000.00
ii. Cost of constructing a wooden structure on
the land in dispute = N 63,000.00
iii. Costs of nails used for the construction of the
Wooden structure. = N 7,200.00
iv. Costs of purchasing 300 Nos. of 6 inches blocks = N 22,500.00
TOTAL = N427,770.00
e. PERPETUAL INJUNCTION restraining the Defendants by themselves, their servants, agents, privies or any person claiming through them or whosoever from further trespassing and interference with the land in dispute or from building any house or structures on the land in dispute or from using same in any manner or from alienating or assigning in whole or part of the land in dispute’’.
The claimant accompanied the writ with a 40-paragraph statement of claim. Both the 1st and 2nd defendants filed a joint statement of defence. The 3rd defendant did not file any statement of defence. Initially, Kola Tolufashe Esq, represented the 3rd defendant. He challenged the competence of this action as it affected the 3rd defendant, on the ground that it did not disclose any cause of action against him. The application was heard and struck out on ground of incompetence. It is significant to observe, that the 3rd defendant never defended the action. In fact, at a point, his counsel Mr. Tolufashe himself abandoned the suit. Both the 4th and 5th defendant also filed a joint statement of defence.
The claimant, in proof of his claim testified on behalf of himself and did not call any witness. The gist of the evidence of the claimant is as follows: Sometimes in 2003, he applied to the Kogi State Ministry of Environment and Physical Development (the 4th Defendant) for a piece of land in Lokoja, Kogi State. Plot No 4, Block 14, on TPS 116A along Lokoja – Ganaja Road, near Aniebo Quarters, Lokoja, was allocated to him. Claimant stated that the land was surveyed by officers of the Survey Department of the 4th defendant. He was thereafter issued with approval for the grant of a right of occupancy No KG/7233.
It was part of the evidence of the claimant that he stock-piled twenty (20) trips of thirty tons of laterite for future use on the plot at the cost of Three Hundred Thousand Naira (N300,000.00) only. He also stated that he constructed a wooden structure in preparation for moulding of blocks on the land in dispute. He said he spent Seven Thousand Two Hundred Naira(N7,200.00) on nails used in constructing the wooden structure. He stated further that he bought three hundred (N300) pieces of six inches blocks at the cost of Twenty-Two Thousand Five Hundred (N22,500.00) only. He also said that he spent a sum of Twenty-Five Thousand Naira (N25,000.00) as cost of labour for the construction of the wooden structure. He added that he made an excavation for perimeter fencing measuring 105.7m and paid Ten Thousand and Seventy Naira (N10,070.00) for labour.
According to the claimant, sometimes in July 2007, the 1st and 2nd defendants mobilised labourers and made an excavation for construction of a culvert on the land in dispute. He wrote a letter of complaint to the Permanent Secretary of the 4th defendant, who, he said denied allocating the land to Tipper Drivers or any Association for that matter. The 1st and 2nd defendants, however, according to the claimant, claimed that it was the 3rd defendant that sold the land in dispute to them to use as their park. Claimant erected a signboard prohibiting every act of trespass or encroachment which he said, the 1st and 2nd defendants in concert with other tipper drivers removed. He alleged that they destroyed the wooden structure and his blocks. He further alleged that they converted his laterite into filling the depressed area of his plot thereby rendering the land a ‘’made-up’’ ground unsuitable for the building intended.
Claimant stated that on 24/09/2007, while he was away to his home town, the 1st and 2nd defendants, with other tipper drivers constructed with other tipper drivers constructed their culvert directly on top of his stock-piled laterite. He reported this to the police at the out-post station at 200 Unit Housing Estate, Lokoja that invited the 1st and 2nd defendants for interrogation and possible settlement but the 2nd defendant was said to have been uncontrollably wild and unruly. As such, the parties were unable to reach a consensus. He complained that the 1st and 2nd defendants with their tipper lorry drivers were constructing their makeshift wooden structures and further refilling his land with more laterite, thereby altering the soil texture of the land. He also complained that the 1st and 2nd defendants pulled down his wooden structure and erected their own wooden structure with zinc on it. He caused photographs of same to be taken. Claimant said the 2nd defendant and other tipper lorry drivers threatened him openly that they would use their might of numbers to dispossess him of his land.
The following documents were tendered and admitted in evidence: Letter of allocation (Exhibit P1), Right of occupancy (Exhibit P2), Survey Plan (Exhibit P3), Kogi State Cash Receipt No 0548080 of 2/5/03 (Exhibit P4), Ministry of Environment and Physical Development Official Receipt No 2900 dated 2/5/03 (Exhibit P5), Kogi State Government Receipt No 00002069 (Exhibit P6) Ministry of Environment and Physical Development Receipt No 4027 dated 23/3/04 (Exhibit P7), Receipt No 012 dated 20/07/2004 (Exhibit P8),B. B. & Sons (Nig) Receipt No 1482 dated 20/9/2007 (Exhibit P9), A.C.I. Nze Holdings Receipt No 0760 dated 20/9/007 (Exhibit P10), Simons Enterprises Receipt No 192 dated 15/09/2007 (Exhibit P11), Negatives (Exhibit P12), Photographs (Exhibit P12 (1-15)
A letter of complaint written by the claimant and addressed to the Permanent Secretary, Ministry of Environment and Physical Development, Lokoja dated 27th July 2007, was tendered from the Bar by Mr. Akubo, learned counsel for the claimant with the consent of Messrs Umar and Alhassan, of counsel. The said letter was admitted as (Exhibit P13).
Under cross-examination by Mr. Salisu Umar, learned counsel to the 1st and 2nd defendants, the claimant admitted that there was a dualisation work going on the side of his land on the road along Ganaja Junction to Ganaja village. He denied any encroachment upon his land by reason of a project of installation of a high tension cables. He also denied any knowledge of allocation of the disputed land to the 1st and 2nd defendants but he admitted he protested in writing to the Ministry of Environment and physical Development when he saw the 1st and 2nd defendants on the land. In answer to another question, the claimant stated that when he challenged the 1st and 2nd defendants, they informed him that they purchased the land from the 3rd defendant for Five Hundred Thousand Naira only (N500,000.00) which was also confirmed by the 3rd defendant. He denied knowledge of the fact that the land was declared a green belt area.
The claimant was also cross-examined by Mr. I.O. Alhassan, learned counsel for the 4th and 5th defendants. The claimant stated that as a builder and an environmentalist, he was aware that there is always a set-back of 15metres from the centre of the road to a building in a state road. He said he was not aware that the 4th defendant offered an alternative plot of land to him. The claimant, in answer to another question contended that whether or not a particular area would be mapped out for beautification and recreation is a matter of policy.
The second defendant gave evidence as DW1. He gave simple and straight forward evidence. The tipper drivers, according to him, were operating their park at Ganaja Junction. However, when the 4th defendant realised the menace constituted therein, the danger to life and traffic congestion, they (the tippers drivers) were moved to the disputed land to occupy same temporarily until an alternative land was allocated to them. He referred to a letter with Ref No. MEPD/TPD/72/T/92 as their authority for the temporary use of the land. He stated that upon the grant of the said authority, the tipper drivers took possession of the land but never claimed its ownership. He denied the existence of stock-piled laterites, wooden structure and six-inch blocks on the land. Indeed he stated that there was nothing on the land when the tipper drivers took possession of the land. He also denied any excavation of the land. He described the claimant’s action as malicious, vexatious and malafide.
Under cross-examination by Mr. Alhassan, he stated that tipper drivers had moved away from the land. He also stated further that the land had been lost to the expansion of Ganaja Road.
When cross-examined by Mr. Akubo he insisted that neither himself nor the 1st defendant or even, the Tipper Drivers Association owned the land. He maintained that members of the Tippers Association took possession of the land for temporary use in 2007. He admitted that they cleared the land and erected a parking lot therein with zinc. He also admitted that they (i.e members of Tippers Association) also constructed a culvert on the land. He agreed with the learned counsel for the claimant that members of the Tippers Association entered the land before the letter authorising them to use the land was signed by the Permanent Secretary and the Director.
Mr. Ekundayo Idris Ayodele, Director of Lands, Ministry of Environment and Physical Development, Lokoja gave evidence as DW2. It was his contention that the statutory right of occupancy granted on the disputed land in favour of the claimant was granted in error. According to him, the entire piece of land stretching from the northern part to the southern part of the frontal fence of Aniebo Quarters was to serve as a set-back and reserved as a green belt, meant to plant trees and shrubs to provide aesthetism, recreation, preservation and prevention of environmental hazards, in the interest of harmonious and orderly development of the town. According to DW2, the error was discovered when a portion of the piece of the disputed land was re-allocated to the 1st and 2nd defendants by the 4th defendant as a temporary tipper ganvage. The claimant was said to have lodged a complaint against this. An investigation into his complaint was carried out and it was discovered that the area covered the land in dispute did not exist on the approved layout plan in the Department of Urban and Regional Planning. It was further discovered that erection of a private building on the land would deface the Government Quarters in the area. Accordingly, DW2 stated that an alternative plot at a place opposite the Central Bank of Nigeria along Hassan Usman Katsina Road, Lokoja was offered to the claimant as a way of settling the meter out of court. This fact was conveyed to the claimant through a letter addressed to his counsel, J.A. Akubo Esq dated 9th July 2008 which was tendered and admitted as exhibit D.I. A provisional allocation of a new plot to the claimant as contained in a letter Ref No. LAN/ARO/COMM/20836/23 of 18th June 2008 was also admitted as exhibit D2. The claimant rejected the offer vide a letter by his counsel, Reference No AK/LK/92/08 of 10th September 2008 tendered as Exhibit D3. He also tendered a certified true copy.
Dw2 contended that the land in dispute covered by statutory Right of Occupancy No 7233 issued in error to the claimant no longer exists as same now forms part of the new Lokoja-Ganaja road dualised. It is his further contention, the rights and interests of the claimant on the piece of the land have became extinguished by reason of the extension of the road. He described the averment of the claimant as imaginary.
Under cross-examination, DW2 stated that Exhibit D4 was issued upon the 1st and 2nd defendant’s application. He also stated that no more usuable land exists on the land as the road expansion and power line have taken over the land.
When cross-examined by the Mr. Akubo, he admitted that Exhibit P2 was granted to the claimant for commercial purpose. He stated the procedure for allocating land to individuals. When land is designated as green-belt area, the use of the place for that purpose, according to him, is at the discretion of the Ministry of Lands and Physical Development. A green belt area is a public purpose. He stated further that the title of the claimant over the land is yet to be revoked. He denied that it was the 3rd defendant who permitted the 1st and 2nd defendants to use the land as tipper Garrage by the Ministry Environment and Physical Development.
At the end of the oral evidence in court, Mr. I.O. Alhassan, learned counsel for the 4th and 5th defendants applied to the court for a visit to the locus in quo. Both Messrrs Umar and Akubo did not object to the application. Accordingly, the court visited the land in dispute in
Learned counsel for the parties addressed the court on a wide range of issues. The issues formulated by Mr. J.A. Akubo are:
‘’1. Whether the claimant has proved the root of his title and identity of the land in dispute to entitle him for the reliefs sought in paragraphs 40(a), (b) and (c) of the statement of claim.
2. Whether the 4th Defendant has legal authority to allocate the land in dispute to the 1st and 2nd Defendants and or Tipper Drivers Association or NURTW in 2007 for temporal use for the parking of Tippers.
3. Whether the Defendants committed trespass to the land in dispute and, therefore, liable to pay damages.
4. Whether each set of the Defendants herein has any valid defence to the claim.
5. Whether the land between the old and new road (sic) or the land between new road and the land in dispute along Ganaja road, beside Aniebo Quarters, Lokoja formed part of the land in dispute to enable this court inquire into it.
Mr. Akubo argued issues No 1 & 5 separately and issues Nos 2, 3 and 4 together. On issue No 1, Mr. Akubo submitted that the claimant adduced abundant, credible and uncontroverted oral and documentary evidence in proof of his title to the land in dispute. According to him, the claimant achored his root of title to the land in dispute on exhibits P1 and P2, letter of allocation and the Right of Occupancy respectively. Relying on Alhaji Abdulsalami Teniola & 5ors v. Alhaji Mustapha Olohunkun (1999) 4 SCNJ 92 at 103 and S.Q. Adole v. Boniface B, Giwa R (2008) II NWLR (Prt 1099) 562 at 618- 619, he further submitted that Exhibits P1 and P2 conferred title or ownership of the land in dispute on the claimant.
On the identity of the land in dispute, learned counsel contended that Exhibit P3, the survey plan showing the dimensions of the land sufficiently identifies the land in dispute, which he also added was (i.e the land) well known to all the parties. He relied on the following cases: Madam Ebireri Tsemudiara & Ors v. Messrs F.G. Spiropoulos & Co Ltd (2008) 7 NWLR (Prt 1085) 84 at 106-107 Ilona v. Idakwo (2003) 5SCNJ330 at 352. Imma v. Okogbe (1993) 12 SCNJ 53 at 73, Adesanya v.Aderounmu (2000) 6 SCNJ 242 at 259, Falomo v. Onakanmi (2006) All FWLR (Prt208) 1242 at 1259 and Sadiku Osho & Anor v. Michael Ape (1998) SCNJ 139 at154.
On issues Nos 2, 3, and 4, the main contention of the Mr. Akubo is, that the 4th defendant had no legal authority to re-allocates the land in dispute to the 1st and 2nd defendants’ union in 2007 for temporary use as a park for tippers which was the subject matter of Exhibits P1 and P2 granted the 4th defendants in 2003.
He cited Alhaji Gani Kyari v. Alh. Giroma Alkali & 2ors (2001) 5SCNJ 421 at 451 – 452 Ilona v. Idakwo (supra) at 351 and Alhaja Sobalahe Eleran & 2ors v. Dr. Atiku I. Aderonpe (2008) 11 NWLR (Prt 1097) 50 at 78 to support his contention.
Upon the facts presented before me, Mr. Akubo urged me to find trespass established by the claimant against the 1st and 2nd defendants. He referred to Exhibit D4, and the admission of the 2nd defendant who testified as DW1 that the 1st and 2nd defendant and members of Tippers’ Drivers Association entered the disputed land but without the consent of the claimant. He also argued that, the 4th defendant committed trespass and brazen illegality by re-allocating the disputed land to the 1st and 2nd defendants vide Exhibit D4. He relied on Chief Christopher I. Monkon & 2ors v. Augustine Odile (2010) 2NWLR (Prt 1170) 419 at 449 – 450 Alh. Ajikanle & 2Ors v.Mohammed Yusuf (2008) 2NWLR (Prt 1071) 301 at 341 – 342. Accordingly, he submitted that the claimant is entitled to damages for the wrongs committed against his land and properties thereon. He, therefore, urged me to grant reliefs 40(c) & (d) of the statement of claim. He cited Kopek Construction Ltd. V. Johnson Koleola Ekisola (2010) 3 NWLR (Pt 1182) 618 at 660 Osita Echendu. V. Danjuma Tanko (2004) All FWLR (Prt 204) 51 at 59 – 60.
Mr. Akubo submitted that the defendants have no defence to the claimant’s action. In particular, he submitted that the defence of the 4th defendant that the land in dispute was designed as a green belt area was not made out. He, therefore, described the defence as self-defeating and a figment of his imagination. He also described the issue relating to the erection of electric poles as a non-issue.
On issue No 5, Mr. Akubo identified the contention involved on this issue as relating to the effects of the construction of the new Lokoja-Ganaja road on the claimant’s land. He urge the court not to delve into the matter as, according to him, the apart from being a non-issue is an extraneous. He argued that whatever happens to the land by reason of the construction of the new road and the electric’s pole is not the business of the defendants. On the whole, Mr. Akubo urged me to resolve all issues formulated by the claimant in his favour and grant all his reliefs.
Learned counsel for the 1st and 2nd defendants, Mr. Salisu Umar formulated four issues for determination viz:
‘’1. Whether the 1st and 2nd defendants are trespassers in this case.
2. Whether the claimant can, relying on Exhibit P3 lay claim to any existing land.
3. Whether arising from Issue 1 above the claimant is entitled to any damages from the 1st and 2nd defendants and
4. Whether the plaintiff is entitled to perpetual injunction in this case.
On issue No 1, Mr. Umar submitted that in so far as the claimant was not able to prove that the acts of the 1st and 2nd defendants were intentional, they cannot be said to have established trespass against them. This is so, according to him, in the light of Exhibit D4 and the evidence of DW2 under cross-examination to effect that he (DW2) was the one who led the 1st and 2nd defendants to the land. he relied on Emeka Chiamu: Law of Trespass to Land and Nwace, 2nd Edition pages 5 lines 25-32 Ajinkale v. Yusuf (2008) 2 NWLR (Prt 107) 301 at 328 para. B – C. Elegushi v. Oseni (2006) 14 WRN 1 at 26 P. 28.
On issue No 2, learned counsel submitted that with the expansion of the Lokoja – Ganaja road and the installation of electric high poles on the land, no usable land exists for the claimant again.
On issue No 3 learned counsel urged me to hold that the claimant is not entitled to any damage, having failed to prove trespass. In respect of the claim for special damages, learned similarly urged me not to award the claimant any. He predicated his argument on the following facts: First, that the land was a vacant plot. Second, that at no time did the claimant complain of anything he put on the land such as laterite, culvert, sand and wooden structures on the land were made in contemplation of this action.
On his part, learned counsel for the 4th and 5th defendants Mr. I. O. Alhassan formulated three issues for determination. They are:
‘’1. Whether the piece of land at the frontal and/or beside the fence of Aniebo quarters Lokoja having an area of about 695sqm and covered by statutory Right of Occupancy No KG 7233 in favour of the claimant was issued in error.
2. Whether having regards to the present and on going expansion and daulization of Lokoja – Ganaja road, the said piece of land covered by statutory Right of Occupancy No KG 7233 still exists for use of the claimant.
3. Whether the defendants committed trespass on the land in dispute and liable in damages.
On issue No 1, learned counsel submitted that the land in dispute was allocated to the claimant in error as the area was not in the approved layout for development by individuals, he submitted further that the grant of statutory Right of Occupancy (Exhibit P2) can, therefore not be said to have been validly made in favour of the claimant. He added, that with the offer of allocation which the claimant rejected vide Exhibit DIII, the claimant’s action becomes non-justifiable, having regard to powers of the Governor under section 1 of the Land Use Act 1978.
He cited the following authorities: Olatunde vs. Adeyoju (2007) 10NWLR (Prt 676) 562 at 588. Mani v. Shanono (2006) 4NWLR (Prt 969) 132 at 157.
Leadway Assurance Co Ltd v. Seko (Nig) Ltd (2004) 4SCNJ 1 at 9 Judicial Service Commission v. Omo (1990) 6 NWLR (Prt 157) 407.
On issue No 2, learned counsel cited section 19(1) (a) (i) and (ii) of the Town Planning and Development Board (Interior Development) Order of 1991 which stipulates the required set backs of 15.2m for township road and 45.7 metres for Federal and Native roads. He, therefore, argued, by the time the requisite 45.7metresofsetback is taken from the land after the end of the dualization point, no land will be left for the claimant. He deprecated the act of the claimant in moving a beacon from its original point. He also drew my attention to the failure of the claimant to call the surveyor who prepared Exhibit PIII and urged me to invoke the provisions of S. 149 (d) of the Evidence Act to this case. Learned counsel further urged me to set aside Exhibit P2, the statutory Right of Occupancy No KG 7233, the land covered by it having been taken away substantially, by reason of the dualization of Lokoja Ganaja Road.
On issue No 3, learned counsel submitted that claimant failed to prove trespass against the 1st, 2nd and 3rd defendants. He argued that legal justifications exist for their actions as they were permitted by the 4th defendant vide Exhibit D4 to enter the land and use same as temporary tipper garage. He gave the second reason for the justification of the 1st, 2nd and 3rd defendant’s action as being the error committed in issuing Exhibit P2 over an area that did not exist on the approved layout plan for development by individuals. He contended that the 4th defendants had a legal justification to allocate the land to the 1st and 2nd defendants as tipper garage in exercise of his public duty. He cited the following authorities: Monkon b. Odile (2010) 2 NWLR (Prt (1170) 419 and Ajinkale v. Yusuf (2005) 2 NWLR (Prt 1071) 30, at 341. Learned counsel also urged me not to award special damage, as same were not proved the urged me to dismiss the action.
Mr Akubo replied on points of law.
It would appear that the disputes involved in this case can effectively be determined on the following issues:
1. Whether or not the claimant has prove the root of title to the land in dispute.
2. Whether or not the 4th defendant has a legal authority to allocate the land in dispute to the 1st and 2nd defendant for use as a temporary park for members of Lokoja Tipper Drivers’ Association.
3. Whether or not the claimant proved trespass against the 1st and 2nd defendants.
4. if the answer to the 3rd question is in the affirmative, what is the quantum of damages the claimant is entitled to.
ISSUE NO 1:
The undisputed evidence before me is shows that, the claimant, in 2003 applied to the 4th defendant for allocation of a plot of land in Lokoja. The application was approved. He was accordingly allocated Block 4 Plot 14 on TPS 116A (Exhibit P1 refers). Exhibit P2 is the approval for the grant of a statutory right of occupancy over the land to the claimant. There is also Exhibit P3, which is the site plan of the land granted the claimant. I maintain my earlier position that the said document is admissible contrary to the submission of I.O. Alhassan Esq in his further address.
Let me quickly confirm here, the submission of learned counsel for the parties that the identity of the land in dispute is not in doubt. There is a consensus of opinion on this point, which is consistent with the evidence before me. And more importantly, the court visited the locus in quo in the presence of the parties and their counsel to confirm the features and dimensions of the land. infact, I do not see the identity of the land as an issue in this case. But then, learned counsel for the 4th and 5th defendants drew my attention to the discrepancies in the dimensions of the land as contained in Exhibit P2, stating same as 695 sqm as against Exhibit P3’s 690.71 sqm. I consider learned counsel’s submissions on this point as peripheral. The discrepancies in my view, are marginal and are not important enough to destroy the evidence of the identity of the eland which can not be described as anything but certain see Akinterinwa v. Oladunjoye (2000) 6 NWLR (Prt 659) 92.
Be that as it may, coming back to the question of proof title to the land in dispute, the claimant, essentially relied on Exhibit P2, a document which conveyed the approval of the grant of a statutory right of occupancy over the land in dispute to him. This fact was duly acknowledged by learned counsel for the 4th and 5th defendants. It was also a fact not disputed by the parties in their evidence. In Idundun Ors v. Okumagba (1976)9/10SC 227, one of the ways identified by the Supreme Court of proving title to land is by production of duly authenticated documents of title.
Unarguably, therefore, it is clear, that the land in dispute became vested in the claimant by virtue of the grant of a statutory right of occupancy vide Exhibit P2. I, therefore, hold that the claimant sufficiently established the root of title to the land in dispute vide Exhibit P2. Issue No. 1 is accordingly resolved in his favour.
A heavy weather has been made on the expansion work on Lokoja- Ganaja road which is said to have taken the better part of the land and therefore rendered the remaining part useless. Mr Alhassan, of counsel, has requested that I should set aside Exhibit P2 by reason of that fact. I do not think it will be right for me to set aside Exhibit P2 as demanded by Mr Alhassan as there is no counter-claim to that effect. In any event, setting aside Exhibit P2 will have the effect of revoking the rights therein, which under the Land Use Act is not a judicial act but an administrative act, See Section 28 of the Land Use Act. I hold the humble view that whatever happens to the land in that regard does not affect the validity of Exhibit P2. And, as Mr Akubo rightly puts it, it is the business of the claimant. The power to revoke a right of occupancy resides in the Governor and until that power is duly exercised, Exhibit P2 remains valid.
ISSUE NO 2.
What calls for determination here is the property or otherwise of the decision of the 4th defendant to grant the 1st and 2nd defendants an approval to use the land in dispute as Lokoja Tipper Drivers Park, over which a statutory right of occupancy was earlier granted the claimant. At the risk of repetition let me recall here the submission of learned counsel on this point. The views of learned counsel for the parties are divergent. It is the contention of Mr. Akubo, that the 4th defendants, having allocated the land to the claimant, has no legal authority and capacity to re-allocate the same land to the 1st and 2nd defendants in 2007 for use as temporary Tipper Park. Mr. Alhassan, however, argued per contra, to the effect that since the 4th defendant was not aware that an existing interest had already been erroneously created for the claimant, the 4th defendant had legal justification to allocate same temporarily to the 1st and 2nd defendants, in exercise of public duty and in consonance with the provisions of the Land Use Act 1978 as a body responsible for maintenance and regulation of the policy direction of land administration in the state.
Two points must be restated here in order to put the consideration of this issue in its right perspectives. First, is the existence of the claimant’s statutory right of occupancy over the land, already established before me. Second is the undeniable fact that the 4th defendant granted the 1st and 2nd defendants an approval to use the land as temporary tipper park.
The evidence before me reveals that as at the time approval was granted the 1st and 2nd defendants to use the land as temporary Tipper Park, the rights of the claimant over the land subsisted and indeed still subsists as no step has been taken to extinguish the rights for any reason. DW2 justified the action of the 4th defendant on ground of error, committed in granting a statutory right of occupancy over a green belt area. A green belt area, it was stated in DW2’s evidence, is an area designated for beautification, which according to him, cannot be allocated to individuals for development. One, however, wonders what aesthetic value a Tipper Park would add to the area. The capacity of the 4th defendant to effectively maintain and regulate the policy direction of land administration is also brought to question by the admission of DW2 that the error in allocating the green belt area to the claimant was discovered only when a portion of the piece of land was temporarily allocated to the 1st and 2nd defendants and there was an objection from him (i.e the claimant).
Let me reiterate here again, as stated earlier, that fundamentally, it is an indisputable fact that the right of the claimant over the land still subsists as same has not been revoked. If an error was committed by granting the claimant statutory right of occupancy over the land, a graver error was also committed by allocating a portion of the same land to the 1st and 2nd defendants without reference to the claimant. The argument that an offer of an alternative plot was made to the claimant begs the issue. The fact that the claimant rejected the offer is also of no moment. And, in any event, it is not within the province of this court to consider the propriety or otherwise of such a decision. Reference was made to Exhibit D1 in this regard. To my mind, Exhibit D1 is no more than evidence of the effort of the 4th and 5th defendants to settle this matter out of court. This effort is, on its own commendable. Nevertheless, the fact still remains, that Exhibit D1 is not a notice of revocation of the right of occupancy granted the claimant.
The position of the law is clear that where a right of occupancy validly subsists over land, unless such a right is revoked in accordance with the provisions of section 28 of the Land Use Act, for overriding public interest, the holder of the right shall not be deprived of the use of his land. There is no evidence that the right of occupancy of the claimant here was ever revoked. I, therefore hold, that without the revocation of the claimant’s right over the land, the 4th defendant has no right to grant any other interest over the same land. It does not matter, that the interest so granted is only temporal. The irresistible conclusion here, therefore, is that the purported approval of the land to the 1st and 2nd defendant for use as a temporary Tipper Park is unjustifiable, unlawful and invalid. I so hold. See Ogunleye v. Oni (1990) 2 NSCC 72 I resolve issue No 2 in favour of the claimant.
ISSUE NO. 3
The question for determination in this issue is whether or not the claimant proved trespass against the 1st and 2nd defendants. The claimant’s claim is a simple one of damages for trespass with an order of injunction. It is, therefore, necessary to restate a few guiding principles.
An action in trespass is based on exclusive possession of the land. see Ojomu v. Ajao (1983) 9SC 22. It lies against the whole world except one who can show a better title see Aromire & Ors v. Awoyemi (1972) SC 1 Amakor v. Obiefuna (1974) NMLR 331. Trespass is a wrong to possession. It constitutes the slightest disturbance to possession by a person who cannot show a better title see Osho v. Foreign Finance Corporation (1991) 4NWLR (Prt 184) 157 .
In order to succeed, a plaintiff must show that he is the owner of the land or that he had exclusive possession of it. A trespasser does not by act of trespass secure possession in law from the person against whom he is in trespass. See Adelakun v. Oduyele (1972) 6SC 208 at 210.
The facts of this case had been set out earlier in this judgment to call for any repetition here. Perhaps, it is sufficient to simply state here that the 1st and 2nd defendants never denied entry into the land in dispute. The evidence of DW1 is to the effect that the tipper drivers were moved to the land which they used as their park as a temporary measure, to avoid traffic congestion, amongst other reasons. So, there is evidence that the land was, in actual fact, used as a Tipper Park for a while, but had now moved away from there. DW1 admitted that they cleared the land and erected a parking lot there with zinc. He also admitted that members of Lokoja Tippers Association constructed a culvert on the land.
It is clear from the evidence before me that the foregoing actions were taken without any reference to the claimant let alone his authority or consent. Undoubtedly, therefore, I consider such actions as constituting a disturbance to the possession of the land by the claimant which possession he exclusively acquired by virtue of Exhibit P2. The 1st and 2nd defendants failed to show a better right to possession of the land. Exhibit D4 upon which their entry was predicated having been declared invalid, the entry itself is void ab initio. The entry of the 1st and second defendants here has no redeeming feature because the 4th defendant has no legal authority to covert the land granted the claimant into a Tipper Park. Having come to this conclusion, I am of the clear view that the entry of the 1st and 2nd defendants on the land could be nothing else other than the act of trespassers. Again, I resolve issue No 3 in favour of the claimant.
ISSUE NO 4.
Flowing directly from my findings above on trespass, established against the 1st and 2nd defendants, is the quantum of damages to be awarded. First, the claimant is asking for a sum of Two Million, One Hundred Thousand Naira (N2,100,000.00) only as general damages for trespass. Normally, courts award nominal damages for trespass. See Umunna Okwuraiwe (1978) 6 – 7SC, Ozurnoke v. Okohe (2001) 1 NWLR (Prt 642) 569 at 580.
In Ganiyu Badmus v. O.A. Abegunde (1999) 1 NWLR (Prt 627) 493. the Supreme Court quoted a passage by Lord Halsbury L.C. in The Mediana (1900) AC 113 at 116 with approval in the following words:
‘’……..The term ‘’nominal damages’’ is a technical one which negatives any real damage, and means nothing more than that a legal right has been infringed in respect of which a man is entitled to judgment’’.
There is no doubt the whole enquiry as to the amount of damages to be awarded is within the province of this court. And, it is an extremely difficult task as no fixed principle has been laid or can be laid as to the amount of compensation. In this case, I am also influenced in awarding nominal damages by a consideration that the intrusion of the 1st and 2nd defendant was for a short time. The land is no longer being used as a Tipper Park. I confirmed this on the court’s visit to the locus in quo. I also confirmed that the structures constructed by the Tippers Association which included a culvert and a parking lot were no longer on the land. And of course, I find as a fact, that the temporary use of the land by the 1st and 2nd defendants has not wholly deprived the claimant of his land. In the circumstances I award a sum of Ten Thousand Naira (N10,000.00) only against the 1st and 2nd defendants in favour of the claimant as damages for trespass to his land.
Secondly there is also a demand for a sum of Four Hundred and Twenty-Seven Thousand, Naira (N427,770) as special damages. The details include the following:
(i) Cost of 20 trips of laterite at N15,000.00 per trip = 300,000.00
(ii) Cost of constructing a wooden structure on the land
in dispute = N63,000.00
(iii) Cost of nails used for the construction of the
wooden structure = N7,200.00
(iv) Costs of purchasing 300 Nos of 6 inches blocks = N22,500.00
In contrast to general damages, it is now a firmly established rule that special damages must not only be expressly and fully pleaded but must be strictly proved by credible and satisfactory evidence see Calabar East Co-operative Thrift & credit Society Limited & Ors v. Ikot (1999) 14 NWLR (Prt 638) 225.
Exhibits P8, P9, P10 and P11 were tendered by the claimant, ostensibly, in strict proof of the sum of Four Hundred and Twenty Seven Thousand, Seven Hundred and Seventy Naira (N427,770.00) special damages.
Learned counsel for the defendants, Messrs Umar and Alhassan vigorously attacked the credibility of the receipts. First, they argued that Exhibit P13 provided the earliest opportunity for the claimant to lodge a complaint against the acts of the defendants. In the said letter, they said, no mention was made of the existence of any laterite, culvert, sand and wooden structures. It was also their contention that Exhibits P9-11 were issued after the claimant lodged his protest in Exhibit P13 in contemplation of a suit.
I have carefully considered the totality of the evidence adduced in respect of the claim for special damages. I must say here that I find merit in the submissions of learned counsel for the defendants, after a thorough examination of the receipts tendered. In the first place, Exhibit P8 bears the date 20/07/2004. Going by the dates on Exhibit P1, (Letter of allocation of 18th June 2008 and Exhibit P2, letter of approval of right of occupancy dated 27th September 2007), it follows that Exhibit P8 issued before the approval and allocation of the land were made. Secondly, it is also noted as Mr. Alhassan observed that Exhibit P8 is encumbered with mutilations. For these two reasons, I accord no weight to the said document.
In respect of Exhibits P9-P11, I also agree with Mr. Alhassan that they were made after the claimant had written Exhibit P13 to lodge a complaint of encroachment on his land to the Permanent Secretary of the 4th defendant Exhibit P13 is dated 27th July 2007. Exhibit P11 is dated 15th September 2007 while Exhibits P9 and P10 are dated 20th September 2007. I have to bear in mind here that Exhibits P9-P11 were made weeks after trouble over the land had arisen. Action against the intruders must, as at those dates, obviously reasonably be in contemplation. See section 91(3) of the Evidence Act. I do not, in the result, think that I can treat any of the receipts as reliably establishing the truth. I hold that the claim of special damages has not been proved to my satisfaction. Accordingly I reject same.
On the whole, this action succeeds in part. I grant the following reliefs.
1. A declaration that the claimant is the lawful holder of Right of Occupancy No KG/7233 issued by the 4th defendant over a plot of land at plot 4 block 14 on TPS 116A situate along Ganaja Road, near Aniebo Quarters, Lokoja Kogi State.
2. Having granted the above relief, I consider the grant of relief 40(b) as superfluous.
3. N10,000 is awarded in favour of the claimant against the 1st and 2nd defendants as general damages.
4. Claim for special damages is dismissed.
5. The 1st and 2nd defendants, their agents, servants, privies e.t.c. are hereby restrained from committing any further acts of trespass on the claimants land.
The cost of this action is assessed as N10,000 against the defendants.
Hon. Justice Alaba Omolaye-Ajileye
J. A. Akubo Esq (Sanni Tijani Esq with him) for the Claimant.
Salisu Umar Esq (M. Y. Abdullahi Esq with him) for the 1st and 2nd defendants.
I. O. Alhassan, Director Legal Drafting (F.A. Ogunmola, Legal Officer with him) for the 4th and 5th Defendants.