➥ CASE SUMMARY OF:
Chief Peter Adebayo Adene & Ors. V. Alhaji Inuwa Dantunbu (1994)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Award for damages;
Urban area;
Certificate of Occupancy;
Judicial notice.
➥ CASE FACT/HISTORY
The 1st appellant applied to the 2nd appellant on the 6th day of August, 1981 by a letter – Exhibit A for the grant of a piece of land to build an hotel thereon. The application was granted as per a letter- Exhibit B, dated the 14th day of April, 1983.
On meeting the conditions stated by Exhibit B, the 1st appellant was issued a certificate of occupancy No. NC 8128 – Exhibit C, the terms of which granted right of occupancy to the 1st appellant on the land in dispute for a period of 40 years commencing from the 14th day of April, 1983. Consequently, the 1st appellant applied to the Kaduna Capital Development Board for permission to fence the land in dispute. The permission was granted by the board on the 11th day of May, 1983.
Sometime after the grant of right of occupancy to the 1st appellant, he noticed that some concrete structures were being constructed on the land. On making inquiries he discovered that it was the respondent that was responsible for the building of the structures. The 1st appellant lodged a complaint with the Ministry of Lands and Survey, Kaduna State. The latter had the land in dispute inspected by its officials. On receiving confirmation of the complaint, the ministry issued instructions to Kaduna Capital Development Board to demolish the structures and this was done.
The respondent was asked to remove his building materials from the land but he failed to do so and instead he continued to remain on the land. The 1st appellant reported the refusal by the respondent to the Kaduna Capital Development Board and the Divisional Police Officer, in charge of the police station at Sabon Gari, Kaduna, but to no avail. Hence the institution of the suit by the 1st appellant in the High Court.
Before the hearing in the High Court, pleadings were ordered and exchanged. The 2nd to 5th appellants filed a joint statement of defence while the respondent filed a separate statement of defence and set up a counter-claim against the 1st appellant. The statement of claim filed by the 1st appellant averred in the main the facts narrated above. The respondent denied all the averments therein except as to the building of structures on the land in dispute. He alleged that the 2nd appellant in granting the right of occupancy to the 1st appellant as per certificate of occupancy, exhibit C, did not follow the procedures recognised legally and officially. The grant, he contended in the statement of defence, was therefore “irregular, unlawful, null and void and of no effect whatsoever.”
➥ ISSUE(S)
I. The issue of rejection in evidence by the learned trial Judge of plan No. NC. MISC. 46 referred to in Kaduna State (Designation of land in Urban Area) Order, No.7 of 1982, and whether the land in dispute is urban or non-urban land pursuant to the Land Use Act, 1978.
II. Which of the titles held by the 1st appellant and the respondent is better?
➥ RESOLUTION(S) OF ISSUES
[APPEAL SUCCEEDS]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[‘It was in exercise of this power that the Governor of Kaduna State issued Kaduna State (Designation of Land in Urban Area) Order, 1982, Kaduna State Legal Notice (KDSLN) No.7 of 1982. The order came into force on the 26th day of August, 1982 when it was published in Kaduna State Gazette No. 21, Vo. 16 of the same date. Paragraph 2 of the order provides –
“2. Without prejudice to the provisions of the Kaduna State (Designation of Land in Urban Area) Order, 1980, the area of Kaduna State delineated on the plan numbered NC. MISC 46 which is deposited in the office of the Kaduna State Surveyor-General at Kaduna and shown on such plan surrounded by a blue broken verge line is hereby designated as area constituting land in urban area.”
The question is: does the land in dispute in the present case fall within the area designated “urban area” in the 1982 order or in the earlier order of 1978 It is the appellants’ case that the land in dispute is “urban land and that it comes under the area so designated by the 1982 order. It was in attempt to establish this fact that the 2nd to 5th appellants called the Deputy Surveyor-General of Kaduna State to tender plan number NC MISC 46 in evidence. However, the learned trial Judge upheld the objection raised by counsel for the respondent on the ground that the plan was not pleaded in the statement of Defence of the 2nd to 5th appellants and that since it was not so pleaded its admission would go to no issue. It is now contended, as it was indeed raised by the appellants in the Court of Appeal, that the trial Judge was in error not to have admitted the plan because under the provisions of sections 72 and 73 of the Evidence Act, he was bound to take judicial notice of it since it forms part of the 1982 order.
…
Now sections 72 and section 73 of Cap. 112 of the Laws of Federation of Nigeria, 1990) reads –
“72. No fact of which the court must take judicial notice need be proved.”
and section 73 (now section 74 of Cap. 112) provides in subsection 1(a) thereof as follows –
“73(1) The court shall take judicial notice of the following facts –
(a) all law or enactments and any subsidiary legislation made thereunder having the force of law now or hereto before in force, or hereafter to be in force, in any part of Nigeria;”
There is no doubt that the 1982 order is a subsidiary legislation made under the Land Use Act, 1978. It, therefore, seems to me clear from the foregoing that the trial court was bound to take judicial notice of the 1982 order and, in doing so, the plan No. NC. MISC. 46 which is referred to in paragraph 2 of the order. The trial court did not perhaps, take judicial notice of the plan because its attention was not drawn to that effect by the counsel who appeared before it. However, when the point was raised in the Court of Appeal, that court held that even if judicial notice of the plan was taken, a Surveyor be it the Kaduna State Surveyor-General or his Deputy or any other registered surveyor would have to be called as expert witness to interprete the plan to the court. Since that was not done, it held that the 1st appellant failed to prove his case.
…
With respect, I do not think the lower court was right in holding that the plan had to be interpreted to it by a surveyor. Once a court took judicial notice of a document it could examine the document by itself. For example if the document is an Act or Gazzette or any written document or book the Judge can read it on his own. It is only when such document cannot be read or understood by the Judge that resort may be had to an expert witness. In the present case we admitted in evidence, as exhibit SC.1, the plan rejected by the trial court. It is in fact a map. On examining the exhibit it is possible to see the area of Kaduna State which have been declared urban area. Kaduna town is one of the area so declared. The map does not however, show the streets in Kaduna Town and so it is not possible to say whether the land in dispute which is situate at No. BB 29, Ibrahim Taiwo Road, Kaduna is indeed in the urban area. It is even doubtful if any Surveyor, without the knowledge of Kaduna Town and its surroundings can, by looking at Exhibit SC.1, say that the land in dispute is within the urban area.
This notwithstanding, it is not only by looking at a map or plan that an urban area can be determined. The evidence of a Surveyor, who is an expert in that field, can be relied upon.
…
In the present case when the Deputy Surveyor-General testified he stated as follows –
“We had for a very long time prepared Township map for Kaduna. We have maps designated as Kaduna Urban Areas. I know Ibrahim Taiwo Road, Kaduna. It falls within Kaduna Urban Area.”
Surely, this is sufficient evidence identifying the road – Ibrahim Taiwo Road, where the land in dispute is situate on plot BB 29. There is also the testimony of the Kaduna State Chief Lands Officer – Ahaji Yusuf Alhassan, who was called by the respondent as defence witness No. 1 (D.W.1). The witness said under cross-examination by counsel for the 1st appellant as follows –
“I saw the land in question and the drawings. It is situated along Ibrahim Taiwo Road, Kaduna. It is within Kaduna Urban Area. There is no other authority to allocate land within this area besides us.”
The learned trial Judge said of that piece of evidence thus –
“In these circumstances, I prefer the evidence of DW1 to that of DW2 and I believe the evidence of DW 1 to the effect that the land lies within the Urban Area.”
It follows from the foregoing that there was sufficient evidence from which the learned Judge could have found that the land in dispute is situate in urban area. He was therefore, right in so holding. Consequently, the Court of Appeal acted in error when it reversed his finding of fact that the land lies within the “urban area” of Kaduna Town.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE LOCAL GOVERNMENT CANNOT GRANT CERTIFICATE OF OCCUPANCY IN RESPECT TO LAND IN AN URBAN AREA
‘It follows then that a Local Government can only grant a right of occupancy over land situate in non – urban area; while the Governor has the right to grant a right of occupancy in respect of any land irrespective of whether it is in urban or non-urban area.
From all these it is clear that with effect from 26th August, 1982, Kaduna Local Government had no power to grant a right of occupancy over the land in dispute since the land is situate in urban area. So that when it purportedly granted to the respondent a right of occupancy on 27th April, 1983 it had no power to do so and, therefore, the purported grant is null and void. By reason of this the 1st appellant was entitled to judgment in the High Court.
It is pertinent to point out that the learned trial judge entered judgment for the 1st appellant for a different reason. He relied on the provisions of sections 5 subsection (2) of the Land Use Act, 1978 to hold that the 1st appellant had a better right of occupancy over the land in dispute than the right of occupancy held by the respondent. In his own words, quoted above- .
“This means, as I think, that notwithstanding any other existing rights prior to the grant under this subsection, such right automatically cease as soon as the Military Governor exercises such right whether in urban or non-urban areas. Meaning, if the Local Government has exercised similar rights as provided under section 6 (1) (a) of the same Act, the right as exercised by the Military Governor as envisaged above supersedes such right of the Local Government.”
The view so expressed by the learned trial judge is based on the interpretation of the provisions of sections 5 subsection (2) of the Land Use Act, 1978. Were the view applicable to the present case, it would have been supported by the decisions of this court in Saude v. Abdullahi, (1989)4 N.W.L.R. (pt. 116) 387 at p 416; Titiloye v. Olupo, (1991)7 N.W.L.R. (part 205) 519 at p. 530 and Dabup v. Kola, (1993) 9 N.W.L.R. (Pt.317) at pp. 277, 283, 284 and 286. However, as already shown that is not the true situation in this case. Here the grant made by the Local Government is a grant in respect of a piece of land situated in an urban area, upon which the Local Government has no authority under the Land Use Act to exercise such power.’]
.
.
.
✓ DECISION:
‘In the result the appeal succeeds. The decision of the Court of Appeal is set aside and the decision of the High Court is hereby restored through different reasons. The plaintiff’s action succeeds and the defendant’s counter-claim fails. The plaintiff is hereby awarded possession of the land in dispute and damages for the trespass committed by the defendant in the sum of N2,000.00. The defendant, his servant or agents are hereby restrained from remaining on or continuing in occupation or committing any further acts of trespass on the land in dispute. The costs of N250.00 in the Court of Appeal and N1,000.00 in this court are hereby awarded in favour of each set of appellants, namely the 1st appellant and 2nd to 5th appellants respectively.’
➥ FURTHER DICTA:
⦿ THE OBJECT OF AN AWARD OF DAMAGES; FOR THERE TO BE DAMAGES THERE MUST HAVE BEEN A WRONG COMMITTED
Finally, with the grant of certificate to the respondent by Kaduna Local Government having been held to be null and void, the bottom has been knocked out of the respondent’s counter claim. The object of an award of damages is to give compensation to the plaintiff for the damages, loss or injury which he has suffered. However, before damages can be recovered, there must be a wrong committed. There is no doubt that the respondent has incurred loss in the destruction of the structures which he illegally erected on the land in dispute. But it has not been established by the respondent that the 1st appellant had, by causing the structures to be demolished, committed any wrong in law – damnum sine injuria. In Bourhill v. Young, (1943) A.C. 92 at p. 106, Lord Wright held as follows – “Damages due to the legitimate exercise of a right is not actionable, even if the actor contemplates the damages. It is damnum ahseque injuria (i.e. loss without wrong). The damage must be attributable to the breach by the defendant of some duty owing to the plaintiff.”
➥ LEAD JUDGEMENT DELIVERED BY:
Uwais, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
