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Alhaji Abba Asheik v. Borno State Government & Ors. (2007) - CA


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icon CASE SUMMARY OF:

Alhaji Abba Asheik v. Borno State Government & Ors. (2007) - CA

by PaulPipar
icon THEME(S)

Revocation of land;
Trespass;
Damages;
icon PARTIES

APPELLANT
Alhaji Abba Asheik

v.

RESPONDENTS

1. Borno State Government;
2. Attorney-General, Borno State;
3. Permanent Secretary, Bureau Of Lands and Surveys, Ministry Of Lands, Borno State;
4. Bama Local Government;
5. Commissioner Of Police, Borno State Command;
icon CITATION

(2011) LPELR-CA/J/39/2007;
icon COURT

Court of Appeal - Jos Judicial Division;
icon LEAD JUDGEMENT DELIVERED BY:

MONICA B. DONGBAN-MENSEM J.C.A;
icon LAWYERS WHO ADVOCATED

* FOR THE APPELLANT
* FOR THE RESPONDENT

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icon FACT

An appeal against the judgement of the High Court. The Appellant was plaintiff at the High Court. The Appellant was given a land, later on, the land given was revoked because it belongs to someone else (4th - 5th respondents) already.
icon ISSUE(S)

1. Whether or not the title of the Appellant to the plots of land covered by Right of Occupancy Nos. BO/43476 and BO/43478 were validly revoked?

2. Whether or not the demolition of the Appellant's property by the 1st - 3rd Respondents was illegal and therefore rendered the said 1st - 3rd Respondents liable (or not) to the Appellant for trespass and damages?
icon HOLDING & RATIO DECIDENDI

[APPEAL: DISMISSED]

1. ISSUE 1 was judged in favour of the respondent.

RATIO:
i. It must also be noted that Appellant himself admitted the act of exclusive possession of the land by the Respondents based on activities of the Respondents on the land especially the 4th and 5th Respondents activities prior to its allocation to the Appellant.

ii. The defendant witness No. 3 the Surveyor General informed the Court that on receipt of the report of Lawan Shettima the defendant witness No. 2 on page 16 of the file he wrote to the Director of Lands that the property in question is within police land as shown by the title deed plan duly signed by the former Surveyor General. The file in question as never found again despite several searches, another temporary file was open and the witness identified the temporary file. The witness stated that he did not see the original file in the office except in the Court. The witness informed the Court that he did not survey the land in question and did not order any officer to do so. The witness contends that it is not possible to obtain beacon number without survey and the land in question cannot be identified without beacon numbers, because only a Surveyor can show you the size of your land. The witness contends that it is not possible to develop the land without identifying and no one has the right to identify a land other than the official Surveyor of the Government and in respect of the land in question no such survey was done lest it can be identified. The development on the land if any is illegal. As regard the ownership of the land in question the plaintiff himself testified that there was boys' quarters within the land for which he has paid N20,000 showing that the land belongs to someone before. The evidence before me as testified by defence witness Nos. 2, 3, 4, 5, 7 and 8 established the fact that the land in dispute is within the land belonging to the police and Exhibits C and E have confirmed it further.

iii. Exhibit "C" palpably demonstrates that the Governor of Borno State did not have what he purported to give and could not therefore have conferred any right on the Appellant. The Appellant therefore elected to ignore the said Exhibit "C". An appeal is not a new trial where parties can raise fresh issues of will and argue them on appeal rather than address them squarely of the trial Court.

iv. The cases of the 4th and 5th Respondents have, gone far beyond survey plans; the Respondents are in fact in long effective possession which is a substantial element of ownership. The survey plans and the evidence of allocation of the said plans are affirmation of legal possession. Thus, the 4th and 5th Respondents are not mere bearers of allocation papers or Certificate of Occupancy without possession. They are each in effective possession with visible and extensive acts of possession also indicative of long occupation and therefore perceived ownership. The Nigeria Police Force, per the evidence of DW8, have built offices, barracks and stables on the said land and are in actual possession of the land.

2. ISSUE 2 resolved in favour of the respondent.

RATIO:

i. Thus, by the use of his enormous influence, the Appellant caused the Certificate of Occupancy to be issued to him in total disregard of the existence of prior interest over the pieces of land in issue. No doubt, it is good to have influence and have things done expeditiously. However positive influence is what the law will enhance that kind of influence which moves to right wrong, which speaks up for Justice and upholds the down trodden not negative influence which insists on its way no matter what the negative consequences are influence which seeks to undermined an official of Government, bad influence which strips on an official of his dignity because he insists on doing the right thing and upholding the tenets of due process must not be celebrated nor encouraged: nay: not by the Judiciary. Nay, the influence which this Court should uphold and support is that which draws governance nearer to the people, which makes available to children, qualitative and functional education and ensures that Government resources and authority are used to give human dignity to the people of Nigeria. To award damages in the circumstance of this appeal would be to celebrate lawlessness. Why should the Appellant be compensated for his own wrongful act? Not an iota of valid evidence did the Appellant adduce in support of his bogus claim of N10,000,000.00 for general damages nor of N5,000,000.00 for special damages for the building of a fence which was demolished. When asked for the evidence of payment for the building of the fence the Appellant stated under oath that he had the receipt. When challenged to produce the receipt, his memory suddenly woke up from its deep slumber and he remembered that he had lost the receipts in far away London in the United Kingdom. He did not however report the fact of that lost to the Police in London nor did he do so back home in Nigeria.

ii. The evidence of DW3 clearly shows how the Appellant harassed the land officer and caused the original file to disappear and under the cover of a temporary file, he got the two lands allocated to himself. He cannot be allowed to benefit from his own wrong. No. The dignity of the officials who stood for due process must be restored and upheld. No compensation shall be awarded to a man who seeks to install recklessness in the performance of official duty. Those who cannot follow due process and respect public policy have no right to be compensated for their illegal acts. The Appellant created the bitter pill, let him swallow it; perhaps it will clear his system and instill some respect for constituted authority in him. The Appellant deserves no compensation and I order none.
icon REFERENCED

S.25 Court of Appeal Act 2004;
S.214 CFRN 1999;
icon SOME PROVISIONS

By the provision of Section 25 of the Court of Appeal Act 2004 (as amended) an Appellant can file more than one Notice of Appeal formulate and argue issues on same provided the notices were filed within the prescribed statutory period and the issues are adequately tied to the relevant Notice and Grounds of Appeal.
icon RELEVANT CASES

AJERO v. UGORGI (1999) 7 SCNJ PAGE 40 at 49 where the Supreme Court held: "I entertain no doubt in my mind of all that the record shows that the plaintiffs are in exclusive possession of the land in dispute as the trial High Court found above. Possession in law means exclusive possession because if it is not exclusive the law will not protect it... Cultivation of a piece of land, erection of a building or a fence and demarcation of land with pegs at its corners have all been held to be evidence of possession"
icon NOTABLE DICTA


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* PROCEDURAL

* SUBSTANTIVE

An appeal is not a new trial where parties can raise fresh issues of will and argue them on appeal rather than address them squarely of the trial Court. - Monica, JCA. Asheik v. Borno State Government (2007)

A Judge is entitled to draw inferences from exhibits tendered before it especially one tendered without a shred of objection. - Monica, JCA. Asheik v. Borno State Government (2007)

Although one of the five ways by which title over land can be proved is by production of title document such as the Certificate of Occupancy tendered by the Appellant, unfortunately the production of a Certificate of Occupancy is not a conclusive prove of title as it is only a prima facie evidence of title or possession in favour of the person whose name is on the certificate of Occupancy. Where a rebuttal is raised on that presumption, then all necessary factors based on law or facts on why the rebuttal of that presumption is raised must be considered. - Monica, JCA. Asheik v. Borno State Government (2007)

The mere possession of the Grant of Right of Occupancy is not a magic wand which can destroy existing rights over the land in dispute. The law seems to be that for a grant or even a Certificate of Occupancy to be valid, there must not be in existence at the time of the grant of Right of Occupancy or Certificate of Occupancy was issued, a customary owner who has not been divested of his title; there must be no encumbrances at all. - Monica, JCA. Asheik v. Borno State Government (2007)

No compensation shall be awarded to a man who seeks to install recklessness in the performance of official duty. Those who cannot follow due process and respect public policy have no right to be compensated for their illegal acts. - Monica, JCA. Asheik v. Borno State Government (2007)

The law is that a plaintiff seeking a declaration of title to land has a duty to show clearly the area of land to which his claim relates, its exact boundaries and its extent as no court would be obliged to grant a declaration to on unidentified land. - Ndukwe-Anyanwu, JCA. Asheik v. Borno State Government (2007)

Where there are two competing parties to a piece of land and they trace their common grantor to be the same person, the later in time will have to give way to the first in time. The first in time always prevails in land matter, where there are two contending parties. This is in pursuit of the well known maxim "quo PRIOR est tempore, potior est jure". - Ndukwe-Anyanwu, JCA. Asheik v. Borno State Government (2007)

There are 5 ways of proving title to or ownership of land. These are by (1) traditional evidence: (2) production of documents of title duly authenticated in the sense that their due execution must be proved; (3) by positive acts of ownership extending over a sufficient length of time; (4) by acts of long possession and enjoyment of the land; (5) by 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. - Ndukwe-Anyanwu, JCA. Asheik v. Borno State Government (2007)

Production of a Certificate of Occupancy or document of title does not automatically entitle a party to a claim in declaration. Thus, before the production of document of title is admitted as sufficient proof of ownership the court must satisfy itself that: (a) the document is genuine or valid; (b) it has been duly executed, stamped and registered; (c) the grantor had the authority and capacity to make the grant; (d) that the grantor has in fact what he propose to grant; and (e) that the grant has the effect claimed by the holder of the instrument. - Ndukwe-Anyanwu, JCA. Asheik v. Borno State Government (2007)

It is in evidence that the Appellant breached all known procedure in his guest for the attainment of the Certificate of Occupancy. As of the time these Certificate of Occupancy was signed, the Nigeria Police was already in possession, since 1965. There were many acts of possession on the land. The Nigeria Police force had already built offices, quarters and even stables for their horses. The Police actually drove away officers of the Ministry of Land that came to survey the land. The appellant himself agreed that he saw a bungalow on the land. That should have put him on the enquiry. The Appellant knew of these but still bulldozed the government into granting him the Certificate of Occupancy. The Certificate of Occupancy granted to him by the Government of Borno State was issued in error. The government couldn't denote what it did not have i.e the grant of Certificate of Occupancy was null and void ab initio. The government had nothing to give the appellant and therefore strictly speaking, the appellant is not entitled to be accorded the privilege of being served with a notice. - Ndukwe-Anyanwu, JCA. Asheik v. Borno State Government (2007)

Trespass is a civil wrong against possession. An action in trespass presupposes that either the plaintiff is the owner of the land in dispute or he is in possession of it. The proper person to institute an action for damages for trespass is the person in possession. Where, however, a person is not in possession, there is nothing in law and in fact for the adverse party to disturb by way of trespass. - Ndukwe-Anyanwu, JCA. Asheik v. Borno State Government (2007)


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