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ALHAJI ABATCHA MOHAMMED KOLO v. ALHAJI MOHAMMED LAWAN

(2018) LPELR-44378(SC)

In The Supreme Court of Nigeria

On Friday, the 4th day of May, 2018

SC.313/2010


Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA'AHS Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria


Between

ALHAJI ABATCHA MOHAMMED KOLO - Appellant(s)

AND

ALHAJI MOHAMMED LAWAN - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Land Law.
FACTS:
This is an appeal against the judgment of the Court of Appeal, Jos division affirming the decision of the Borno State High Court, Maiduguri.
???The Respondent's case was that, he bought the disputed piece of land from one Mallam Mustapha Amatani in 1977 at the cost of N6,000.00 in the presence of witnesses. He claimed that Mustapha Amatami inherited the land from his father. After buying the land in 1977, he took possession and sometimes in 1987 he decided to convert his customary right of occupancy to statutory right of occupancy. He submitted an application to Borno State Government for that purpose. As a result of his application a file no. BO/30798 was assigned to him as his certificate number. He was in possession of the land until 1996, when one Alhaji Mohammed Ali, who claimed his title through the Appellant by purchase, entered the land and started fencing it. Respondent instituted an action against Mohammed Ali. Mohammed Ali in his defence relied heavily on certificate of occupancy No. BO/12336 which the appellant relied on. The suit was heard by the trial High Court and judgement was entered in favour of the respondent. Mohammed Ali was aggrieved and appealed against to the Court of Appeal, Jos. During the pendency of the appeal, the appellant instituted suit No. M/172/2006 against the respondent claiming the following reliefs:
"(i) A declaration that judgement in Suit No. M/132/96 delivered on 5/4/2006 is nullity having been obtained by fraud.
(ii) A declaration that the plaintiff is the title holder of the land covered by Certificate of Occupancy No. BO/12336.
(iii) An order directing the defendant to give possession/vacant possession to the plaintiff forthwith.
(iv) An order restraining the defendant, his servants, agents, assigns or any person whosoever from trespassing or interfering with the land covered by Certificate of Occupancy No. BO/12336. 
(v) Damages for trespass as to be assessed by the Court.
(vi) The cost of the suit."
At the conclusion of trial, judgment was again entered in favour of the respondent. The certificate of occupancy of the appellant was declared void as there was in existence at the time it was issued, a deemed right of occupancy over the same land to the respondent. The appellant unsuccessfully appealed to the Court of Appeal. He thereafter appealed to the Supreme Court.

ISSUES:
The issues for determination in the appeal are:
1. Whether or not their Lordships of the lower Court were right when they relied on unpleaded and unproved facts to hold that the respondent has proved that he bought the land in dispute since 1977 and traced his root of title to four generations of vendors.
2. Whether in the circumstances of this case, especially considering that the respondent failed to tender the purchase receipt to prove that he bought the land in 1977 or any document to show the size(s) and location of the land he bought and there being no evidence of any development on the land by the respondent, whether their Lordships of the lower Court were right to hold that the respondent was entitled to be deemed to have the statutory right of occupancy over the land in dispute by virtue of Section 34 (1) and (2) of the Land Use Act, 1978.
3. Whether or not from the pleadings and evidence before the lower Court, the lower Court was right when it held that the appellant did not prove that the Borno State Government have authority to grant the Certificate of Occupancy to the appellant as there was no proper proof of acquisition and revocation of the piece of land by the Borno State Government.
4. Whether or not their Lordships of the lower Court were right in holding that the twain issues of "acquisition" and "revocation" relied upon by the trial Court were sufficiently pleaded by the respondent in paragraph 7 of the Statement of defence.
5. Whether or not the judgment of the lower Court is against the weight of evidence."

DECISION/HELD:
In the final analysis, the appeal was dismissed.


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