Potter Dabup v. Haruna Bako Kolo

I read in advance the judgment just delivered by my learned brother Olatawura, J.S.C. I agree with his reasoning and conclusions. In view of the proposed final order. I do not think it will be wise to advance any opinion on the provision of section 5 sub-section 2 of the Land Use Act 1978 at this stage. The

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appeal is dismissed with N1,000 costs against the appellant. The judgment of the Court of Appeal, Jos, delivered on the 1st day of June, 1987 is accordingly confirmed. For the avoidance of doubt the claim and counter-claim are sent back for a retrial in their entirety before another judge of the High Court, The parties shall be at liberty to amend their pleadings and in particular the plaintiff/respondent is granted leave to file a defence to the counter-claim out of time.

This case originated in the High Court of Plateau State (Jos Judicial Division) where in suit No, HJ/140/1982 the plaintiff Alhaji Haruna Bako Kolo had sued the defendant Potter Dabuk claiming declaration of ownership to a piece or parcel of land situate along Jos-Bukuru Road (that is, Yakubu Gowon Way) measuring about 3.31 hectares and covered by a Statutory Right of Occupancy No, PL 5399 granted by the Governor of Plateau State to the plaintiff; injunction restraining the defendant etc, from entering upon the said land; damages for trespass allegedly committed by the defendant on the land; damages for assault and battery allegedly committed by the defendant on the plaintiff and lastly damages for false imprisonment. Pleadings were ordered and duly filed, In his Statement of Defence, the defendant after meeting the case set out by the plaintiff in his statement of claim raised a counter-claim and pleaded in respect thereof as hereunder:-
“COUNTERCLAIM
1. By way of counterclaim, the defendant claims from the plaintiff the sum of N50,000.00 being aggravated

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damages for trespass to the defendant’s land by the plaintiff upon the following grounds:-
(a) The defendant is (with Alhaji Musa Gombe) and was at all material times the owner and entitled to the possession of land and premises situate at and known as Plot AC47, Bukuru Road, Jos in the Gyel District of Jos, Plateau State.
(b) On or about November, 1982, the plaintiff wrongfully with his servants and agents entered the said hind and premises and wrongfully took possession of the same and has thereby trespassed and is still trespassing thereon, and has removed the defendant’s goods from the land.
(c) The plaintiff did the acts aforesaid maliciously and out of spite towards the defendant and with the intention of humiliating the defendant and injuring his proper feelings of dignity and pride and causing him to be held up to ridicule and contempt before passers by and the plaintiff’s workers:
2. By reason of the matters aforesaid, the defendant has been subjected to humiliation and suffered anguish and stress and has suffered loss and damage
PARTICULARS OF DAMAGE
Cost of planting trees and erecting the fence
on the land assessed                   N4,400.00
Aggravated damages for trespass to land       N45,600.00
And the defendant claims N50,000.00,”
The action proceeded to trial at which evidence was led on both sides. The learned trial Judge (Momoh J.) in a considered judgment found:-
(1) that the land granted to the plaintiff by the Governor overlapped the parcel of land earlier granted to the

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defendant by the Jos Local Government Council; and
(2) that the defendant’s right over the portion of land in which he and another person were granted Customary Right of Occupancy subsisted and remained unaffected by the Statutory Right of Occupancy subsequently granted to the plaintiff by the Governor.
She made the following declarations and directive;
“DECLARATIONS
On the plaintiff’s claim:
It is hereby declared and ordered that the plaintiff being the holder of a statutory right of occupancy PL 5399 (Exhibit A4) granted on the 30th day of September, 1982 over that piece of land described in the sketch plan (Exhibit A6) shall be entitled to the use and occupation of the said land only to the extent that the land shall not include that portion of land described in the survey plan (Exhibit J1) subject to a prior right of occupancy evidenced by the Local Govt. certificate of occupancy (Exh. J) dated 21/8/78.
On the defendant’s Counterclaim:
The defendant and Alhaji Musa Gombe are hereby declared joint holders of a right of occupancy and entitled to the use and occupation of the piece of land described in the plan exh. J1 covered by Local Government Certificate of Occupancy Exhibit J dated 21st August, 1978.
Court Directives:
The Commissioner in charge of land matters in Plateau State is hereby directed to take all necessary steps through the department of Land and Survey for the purpose of conforming with the above declarations of

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court including adjusting the plaintiff’s plan Exhibit A6 to exclude the plot to which the defendant and Gombe are declared entitled. The Commissioner may thereafter conclude the processing of the plaintiffs application for a certificate of occupancy PL 5399 and the claimants joint application for a statutory right of occupancy PL 6443.”
In respect of the plaintiff’s claims for damages for trespass, assault and false imprisonment and the defendant’s counterclaim the learned trial Judge dismissed both parties’ claims for damages for trespass; she awarded N1,000.00 damages in favour of the plaintiff for false imprisonment.
Being dissatisfied with the judgment of the learned trial Judge the defendant appealed to the Court of Appeal; the plaintiff also cross-appealed. The latter court after a consideration of the arguments advanced in favour of the appeal and cross appeal allowed both appeals, set aside the judgment of the learned trial Judge and ordered a retrial of the action. Being again dissatisfied with the judgment of the Court of Appeal the defendant further appealed to this Court upon one original and two additional grounds of appeal. The plaintiff did not cross-appeal.
Pursuant to the rules of this Court both parties filed and exchanged their respective Briefs of Arguments. Learned leading counsel for the defendant/appellant set out 3 issues as calling for determination in the appeal. These 3 issues are also adopted in the plaintiff/respondent’s Brief. At the hearing of the appeal however, learned counsel for the defendant/appellant abandoned issue (1) which is covered by the 2nd ground of appeal. That ground is

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hereby accordingly struck out by me. The two remaining issues for consideration in this appeal are:
1. Whether the learned Justices of the Court of Appeal were right in their interpretation of section 5(2) of the Land Use Act which postulates that upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished, even in this instance when it is common ground that the appellant, with one Alhaji Musa Gombe already were entitled to the use and occupatory right of occupancy aforesaid, the same not having been revoked or otherwise extinguished.
2. Were their Lordships of the Court of Appeal right in failing to enter judgment for the appellant when the respondent did not file a defence to the counterclaim in the circumstances of this case?
Before I proceed further to a consideration of this appeal, I need to set out at this stage how-be-it briefly the facts. Sometime in February 1982 the plaintiff applied to the Governor for an industrial plot to be used for the purpose of a food processing industry. After preliminary steps had been taken the plaintiff was granted a statutory right of occupancy dated 30th September, 1982 and number PL 5399 to a piece or parcel of land measuring about 3.31 Ha. and stated to be situated along Jos-Bukuru road in Jos Local Government area. Following the grant to this right of occupancy the plaintiff went into possession and employed workers to erect a fence around the land. The plaintiff was on the site on the 27th of October, 1982 inspecting the progress of work being done to the fence

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when the defendant, a Deputy Commissioner of Police (Kaduna State Command) came on the land and claimed ownership to it. There was an incident leading to the arrest, detention and prosecution of the plaintiff. Consequently the plaintiff who was at the relevant time a Permanent Secretary in the Plateau State Civil Service instituted the action leading to this appeal and claiming as herein before set out.
The defendant and one Alhaji Musa Gombe had on 21st August 1978 been granted a customary right of occupancy as evidenced by Local Government Certificate of Occupancy No. 25 I issued by the Jos Local Government and in respect of a piece of land in the vicinity of the area granted to the plaintiff. It would appear from the evidence led at the trial that the 2 pieces of land overlapped. Hence the contradictory claims made by each party to the land in dispute. Both documents relied upon by the parties do not have attached to them a plan of the land granted by each document to each party but a sketch plan (Exhibit N) drawn not as a result of accurate survey, was tendered in evidence to illustrate the overlap.
Other sketch plans were also admitted in evidence.
I now proceed to the appeal.
Issue (1):-
The plaintiff appealed against the interpretation given by the learned trial Judge to s.5(2) of the Land Use Act 1978. The issue on it before the Court of Appeal was formulated as follows:
“(a) Having regard to the fact that the Governor of Plateau State granted the Statutory Right of Occupancy No. PL 5399 to appellant under s.6(1) of the Land Use Act.

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Whether respondent’s right to occupation and use of any part or the land covered by the Governor’s grant still subsisted or was extinguished
The court below per Agbaje. J.C.A. (as he then was) in deciding this issue observed as follows:-
“Section 5 subsection 2 of the Land Use Act provides as follows:-
Upon the grant of a statutory right of occupancy under the provisions of subsection (1) of this section. All existing rights to the use and occupation of the land which is the subject of the statutory right to occupancy shall be extinguished.’
Added to this is section 15 of the same Act which says;
During the term of a statutory right of occupancy the holder:-
(a) shall have the sole right to and absolute possession of all the improvement on the land;
(b) may, subject to the prior consent of the Military Governor, transfer, assign or mortgage any improvements on the land which have been effected pursuant to the terms and conditions of the certificate of occupancy relating to the land.
Having regard to the above statutory provisions, the irresistible conclusion I reach is that counsel for the plaintiff is right in his submission w us in his brief and in his oral argument to us to the following effect:-
‘The effect of grant of a statutory title under section 6(1) of the Land Tenure Law which is identical in terms with section 5(1)(a) of the Land Use Act is that all other rights to the use and possession of the land, the subject of the

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grant extinguished. Where there are two conflicting titles granted under the same section, the first in time may be stronger in law.”
It is the conclusion reached in the above passage that is on attack in the appeal before us.
Learned leading counsel for the appellant Gaily Brown-Peterside S.A.N. had argued in the appellant’s brief thus:-
“…….it is Appellant’s respectful submission that the learned Justices of the Court of Appeal were clearly in error when they held as they did, that section 5(2) of the Land Use Act postulates a situation where existing right over land which has not been revoked or otherwise lawfully divested from the owner is extinguished upon the grant of a statutory right of occupancy by the Military Governor. the fact notwithstanding that the previous owner had a subsisting right of occupancy thereon granted by a competent authority. As already stated, (page 6 supra), there is uncontroverted evidence that the appellant at all material times with one Alhaji Musa Gombe, had a valid subsisting C. of O, granted to them by Jos Local Government, namely C. of O. No. 251 dated 21st August, 1978 in respect of the land the subject-matter of these proceedings. That being so, it is further respectfully submitted that the subsequent grant by the Plateau State Government of a Right of Occupancy over the same piece of land or a piece of land incorporating the land already the subject-matter of the C. of O. granted to the appellant and his ally under the Land Tenure Law, cannot be said to have extinguished the right of the appellant in this instance to the use and occupation of the land of their subsisting C. of O. as aforesaid.

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See Dantumbu v. Adene & Ors. (1987) 4 NWLR (Pt.65) 314 at 326. In a more recent decision, this honourable court, considering a situation in pari materia with this case, in terms of section 5(2) of the Land Use Act, said:-
‘Upon a proper interpretation of subsection (2) of section 5 of the Land Use Act, a later statutory right of occupancy extinguishes all rights created by an earlier grant. To save an earlier grant of a statutory right of occupancy, that later right of occupancy must be expressly set aside.’
See Saude v. Abdullahi 1989 (4) NWLR (PLI16) 387 at 416
Suffice it to add here that appellant’s Certificate of Occupancy No.251 a granted by the Jos Local Government has not been revoked.”
He contended that the. interpretation placed on section 5(2) was erroneous. Learned Senior Advocate submitted that the defendant and Musa Gombe having personally been granted customary right of occupancy to the land in dispute, the subsequent grant of a statutory right of occupancy to the plaintiff by the Governor of Pleteau State over the same piece of land or piece of land incorporating the land already granted to the defendant and his friend could not be said to have extinguished the defendant/appellant’s right without that right being first revoked before the grant of statutory right to the plaintiff. He cited in support Dantumbu v. Adene & Ors. (1987) 4 NWLR (Pt.65) at 326: Saude v. Ahdullahi (1989) 4 NWLR (Pt.116) 384 at 416.
    Mr. Fashola who appeared at the oral hearing for the defendant/appellant submitted that as the defendant had prior right of occupancy of the land in dispute and as that

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right had not been revoked any subsequent grant of a right of occupancy by the Governor over the same piece of land would be ineffective. He submitted that Saude v. Abdullahi (supra) is distinguishable on its own facts. He cited Ogunleye v. Oni (1990) 2 NWLR (Pt.135) at 784 C-E and G-H and submitted that to succeed the plaintiff must not rely on section 5(2) alone but must also show by evidence that there had been a revocation of existing adverse interest. He relied on Romaine v. Romaine(1992) 4 NWLR (Pt.238) 650, 662 E-G. He further submitted that where there had been a grant under the Land Tenure Law to a party (as in the case of the defendant) a subsequent grant of a statutory right of occupancy to another party (as in case of the plaintiff) Section 5(2) of the Land Use Act would not apply until there has been revocation of the prior interest. He relied on Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519, 530 C-E.
    Mr. Kayode Sofola for the plaintiff/respondent submitted that in the light of the findings of the Court of Appeal on page 157 line 5 to page 158 line 25, issue (2) would not come within the parameter of the present appeal and urged us to discountenance all submissions on issue (2). I need point out that issue 2, is issue (1) in this judgment. He however, submitted in the alternative that effect should be given to the clear and unambiguous provisions of section 5(2). Learned counsel further argued that the defendant/appellant having become aware of the statutory right of occupancy granted to the plaintiff should have sued to vacate that statutory right of occupancy and as he did not do this, he could not now complain.
It is true that the court below found that the defendant

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failed to discharge the onus on him to relate the land he was claiming to the one claimed by the plaintiff and that having failed to discharge to discharge this onus his claim to any portion of the land claimed by the plaintiff would not succeed. This finding in my respectful view only goes to the claim of the plaintiff for a declaration and does not affect the earlier finding of the court below that the effect of a grant of a statutory right of occupancy under s.5(1) is to extinguish the existing rights in the land. The question therefore, which I now have to answer is whether the court below was right in its interpretation of s.5(2).
We have been referred by -learned counsel for the appellant to a number of authorities. In Datumbu v. Adene & Ors. (supra) a decision of the Court of Appeal, A was granted a customary right of occupancy to a piece of land by the Local Government. Subsequently B was granted a statutory right of occupancy to the same land by the State Governor. A went on the land B sued joining the Military Governor and Attorney-General among others. It was held by the Court of Appeal that a customary right to occupancy granted by a Local Government places priority of estate so as to render null and void any subsequent right of occupancy granted by the Governor in respect of the same piece or parcel of land unless the customary right of occupancy aforesaid was first revoked by the Local Government before the grant of the statutory right of occupancy by the Governor to another person. Ogundere, J.C.A. delivering the lead judgment of the Court observed at pages 236-237:
“The plaintiff produced a statutory certificate of occupancy, whilst the defendant produced a customary

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certificate of occupancy in ‘respect of the same land, and there was no satisfactory evidence as to whether or not the land was urban land. Each of the two certificates of occupancy is valid, prima facie, respectively under Sections 5 and 6 of the Land Use Act. 1978. Under section 5, it is lawful for the Military Governor, inter alia, to grant statutory rights of occupancy in respect of land whether or not in an urban area. Also, under Section 6. it is lawful for a Local Government to grant customary rights of occupancy in respect of land not in an urban area. The key to the question is if the Local Government Grant of customary right of occupancy was made while the land was rural, and not urban, then the defendant would have acquired a legal estate in the land prior to that of the plaintiff and the grant to the plaintiff by the Governor would only be valid if the prior grant by the Local Government was revoked. See The Government of Kaduna State v. Dada (1986) 4 NWLR (Pt.38) p. 687) in which the Supreme Court upheld the decision of this Court and this Division, in particular, that Section 28 of the Land Use Act, 1978 made provisions for the revocation of a right of occupancy and that provisions of the Act prevail over the provisions of Section 34 of the Land Tenure Law which also made provisions for the revocation of a Certificate of Occupancy under which the Governor purported to revoke the certificate of occupancy in question, thus rendering the revocation null and void.”
With profound respect to the learned Justices of the Court of Appeal the Governor of Kaduna State and Anor v. Dada (supra) relied on in support of their above proposition of law does not appear to support the view

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held by them. What was in issue in DADA’s case was the extent to which the Land Tenure Law of Northern Nigeria is still applicable in view of the Land Use Act. Section 5(2) of the Act did not come up for interpretation in Dada’s case. While I agree that the above dictum of Ogundere J .C.A. correctly states the decision of this Court in Dada’s case, that case does not however, support the proposition of law pronounced by him in the said dictum.
In Saude v. Abdullahi (supra) A applied for 2 plots of land in the industrial area of Kat sin a town. His application was approved and certificates of occupancy over plots 9 and 10 were issued to him in March and July 1979. Later A commenced development of one of the plots (Plot 9). In respect of the same plot No.9 however, B was, in November 1980, issued with a certificate of occupancy. When he was to commence development of the plot he discovered that A had been in possession of it and had commenced development on it. The matter was brought to the Notice of the Ministry of Lands and Survey which Ministry asked A to stop the development on the land in dispute. A’s right of occupancy in respect of plot No.9 was subsequently revoked by the Government pursuant to s.34(2) (c) of the Land Tenure Law. A sued. In the course of the appeal in this Court the effect of the grant of statutory right of occupancy on existing rights came up for consideration, Obaseki, J.S.C. held on page 4167 of the report:
“The express power to revocation a Military Governor has under the Land Use Act, 1978 is confined to revocation for overriding public interest as spelt out in section 28(2) and (3) of the Act and for requirement by the Federal

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Government for public purposes. There is no provision for revocation for any other grounds in the Act. However, section 5(2) of the Land Use Act creates a statutory revocation of all existing right on the grant of a statutory right of occupancy. It states:
‘Upon the grant of a statutory right of occupancy under the provisions of subsection (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.
It cannot, therefore, be a correct statement of the law that the statutory right of occupancy granted to the appellant falls to the ground and became viod as held by Ogundere J.C.A., because the revocation of the statutory right of occupancy granted to the respondent was set aside. Upon a proper interpretation of subsection (2) of section 5 of the Land Use Act, a later statutory right of occupancy extinguishes all rights created by an earlier grant. To save an earlier grant of a statutory right of occupancy, the later right of occupancy must be expressly set aside.” (Italics are mine)
This decision has clearly overruled Dantubu v. Adene. I must observe that the other six Justices that sat on the appeal in this Court did not say anything on the point in their respective judgments. That notwithstanding I am of the firm view that the decision of Obaseki, J.S.C. is binding. In any event, I agree in-to-to with the views expressed by him.
Mr. Fasola has argued before us that the facts in Saude v. Abdullahi are distinguishable from the facts in this case. I do not agree with that view. For the purpose of the

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application of Section 5(2), I think the facts are the same. I agree with learned counsel for plaintiff/respondent. Mr. Sofola, that what the defendant in this case should have done would have been to sue to set aside the right of occupancy granted in favour of the plaintiff by the Governor. The Governor cannot correct whatsoever error had been made by a recourse to his power of revocation under section 28(1) of the Act which reads:
“It shall be lawful for the Governor to revoke a right of occupancy for over-riding public interest”
and the phrase ‘overriding public interest’ is defined in subjections (2) and (3) of section 28. Other grounds on which the Governor may revoke the right of occupancy are provided in subsections (4) and (5) and do not apply to the facts here. The meaning ascribed to the phrase ‘overriding public interest’ will not cover the facts of this case either.
We have also been referred by Mr. Fasola to Romaine v. Romaine (supra). I do not see how this case is relevant to the interpretation of section 5(2). I would say no more on it. We have equally been referred to Titiloye v. Olupo. In that case, was granted a customary right of occupancy in respect of a piece of land. He was subsequently granted a statutory right of occupancy to the same piece of land by the Governor. The question arose as to whether it was necessary to first revoke the customary right of occupancy before the grant of statutory right of occupancy. Kawu, J.S.C. delivering the lead judgment of the full Court observed at page 530 of the report:
“As to whether a Governor can grant a Certificate of Occupancy to another party when the Local Government

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had granted customary right of occupancy on the same land without first revoking the latter, raised in issue No.6, I think the answer can be found in S.9(1) of the Land Use Act which says:
‘(1) It shall be lawful for the Military Governor- (a) When granting a statutory right of occupancy to any person. or
(b) When any person is in occupation of land under a customary right of occupancy and applies in the prescribed manner; or
(c) When any person is entitled to a statutory right of occupancy to issue a Certificate under his hand in evidence of such right of occupancy.
It is clear that paragraph (b) of S.9(1) empowers a Military Governor to issue a statutory right of occupancy to a person who is already in occupation of land under a customary right of occupancy.
In my view it is not the law that the customary right of occupancy be enjoyed by such a person must be first revoked before he can be granted a statutory right of occupancy, and this is because upon such a grant all existing rights on the parcel of land are automatically extinguished. This is the provision of S.5(2) of the Act which says:
‘(2) Upon the grant of a statutory right of occupancy under the provision of subsection (1) of thing section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished. (Italic are mine)
In view of the authorities with which I am in full agreement, it is my view that the court below is right in approving the submission in the plaintiff/appellant’s Brief

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as regard the interpretation of S.5(2) and that is that a grant of a statutory right of occupancy extinguishes all rights existing on the land at the time of the grant. The subjection is clear and unambiguous. In my respectful view, that is the only reasonable interpretation that can be given to it.
As Obaseki J.S.C. observed in Saude v. Abdullahi (supra) at p.415, the power of revocation contained in section 28(1) or the Land Use Act is not meant to be used in the case of a grant induced by mistake of fact as would seem to be the defendant’s case in the matter on hand. If the Governor had made a mistake in the grant of a statutory right of occupancy over the land in dispute to the plaintiff, he could correct that mistake not by his resorting to the power of revocation given him by section 28(1) of the Act but by exercising his inherent power to rectify the grant.  The Governor has an inherent power to correct errors made by him arising from a misunderstanding of the facts. I do not therefore accept the submission of learned counsel for the defendant that it was necessary for the Governor to first revoke the customary right of occupancy earlier granted by Jos Local Government to the defendant and his friend before granting a statutory right of occupancy over the land in dispute to the plaintiff.
Issue (2):
This issue was raised in the court below. It was contended before that court that the plaintiff having failed to file a defence to the defendant’s counterclaim, the trial High Court Judge was wrong not to have entered judgment in the defendant’s favour on the said counterclaim. The court below found that the defendant’s

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counterclaim was properly before the trial court and that contrary to the rules of the trial court the plaintiff had failed to file a defence to the counterclaim. Agbaje J.C.A. (as he then was) in his lead judgment observed further as follows:
“Ordinarily, the defendant would have been entitled to move for judgment on his counter-claim in the absence of defence to it. See Oguleye v. Arewa (1959) SCNLR 603; (1960) W.R.N.L.R. 9. But the defendant did not do this. The defendant allowed the claim and counterclaim to proceed as if a defence had been filed to the counterclaim.
It appears to me that the trial of the counter claim had not been in order for no issue had been joined on the counter claim strictly so to say. It has been said that where a trial conducted by pleadings, the judgment of the court must be based on issues which the parties have raised and joined in the pleadings. It has also been stated that the object of pleadings is to compel the parities to define that issues upon which the case is to be decided. Oke-Bala v. Malake (1975) 12 SC 61. and Total v. Nwaka (1978) 5 SC 1.
So strictly speaking, the plaintiff having not filed the defence to the counter-claim could not be heard to give evidence against the evidence of the defendant in support of his counterclaim.
This, however, does not conclude the defendant’s appeal on the counterclaim. At this juncture, I must go on to consider the plaintiff’s appeal of his claim before the court.”
After considering the appeal of the plaintiffs and

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concluding that that appeal ought to succeed went on to say –
“Accordingly, this could have meant the pronouncement by me that the plaintiff’s appeal must succeed and that the order of the learned trial judge excising any portion from the land claimed by the applicant in favour of the defendant cannot stand but for the point I have made earlier on in this judgment that the defence and counterclaim in this case are intertwined and interwoven. There is also a point I have made on the counterclaim, namely, since the plaintiff has not filed a defence to the counterclaim, the defendant would be entitled to judgment on it. It appears from the averments in the defence and the counterclaim that the land the subject-matter of the counterclaim is a portion of the land claimed by the plaintiff.
So a decision on the plaintiffs claim could not really be divorced from a decision having regard to the averments in the defence and counterclaim as I have just stated.
The plaintiff by not filing a defence to the counterclaim cannot be heard strictly speaking, on the defendant’s counterclaim. The defendant, as I have just held, by not connecting the land he is claiming to the one claimed by the defendant must fail in his defence to the applicant’s (sic) claim. If as it appears, the subject matter of the counterclaim relates to a portion of the land claimed by the plaintiff. the odd situation would then arise whereby the averments in the defendant’s defence will, in one breath fail, but, in another breath, succeed in the counter-claim in the same case, because of the technicalities I have shown above. This to my mind is a situation which

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no reasonable tribunal will allow to happen,”
He concluded thus:
“The conclusion I read (sic) therefore is that the point taken by the defendant in his appeal as regards the failure of the plaintiff to file a defence to the counterclaim is well taken. I am equally satisfied that the point taken by the plaintiff as to the uncertainty to the land excised from his land for the defendant is well taken too. These matters upon which in my judgment the learned trial judge had erred. In my judgment therefore the judgment of the learned trial judge on the declaratory judgments sought in the claim and counterclaim cannot stand.”
It is against this conclusion, with which the other justices that sat on the appeal agreed, that the defendant has appealed to this Court, contending that in view of the court’s finding to the effect that the plaintiff had failed to file a defence to the counterclaim the defendant was entitled to judgment.
The law is very clear on the point. There are numerous authorities that say that a counterclaim is in the same position as an action being itself a cross-action and subject to the same rules of court as regards pleadings. Ordinarily therefore, the plaintiff having failed to file a defence to the counterclaim the defendant on moving the trial court would be entitled to judgment and his claim being one for unliquidated damages the trial court would have had after hearing him on the issue of damages to make an award in this case. However the defendant did not move the court of trial for judgment but rather proceeded to full scale trial by adducing evidence and calling witnesses after the close of the case for the

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plaintiff, There is no doubt that the facts from the pleadings of both parties are intertwined interwoven as regards plaintiff’s action and defendant’s counterclaim. Had the plaintiff succeeded in his claim for damages the counterclaim would have failed since both parties could not at the same time be in exclusive possession of the land in dispute. In my respectful view therefore, this case would be an exception to that general rule that where a plaintiff fails to file a defence to a counterclaim the defendant is entitled to judgment on his counter-claim. Akpata J.S.C. correctly, in my view, stated the law when in Ogbonna v. Attorney-General Imo State (1992) 1 NWLR (Pt.220) 647, 698 he observed as follows:
“failure of a plaintiff to file a defence to a counter-claim may not be disastrous if he succeeds in his claim, His success may render useless the counter-claim depending on the nature of the counter-claim. However where he fails in his claim, as in this case, and had filed no defence to the counter-claim, the defendant’s claim in his counter-claim remains uncontroverted. If however the claim in the counter-claim is for a declaratory right the defendant will still have to satisfy the court that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence.”
In the present action it cannot be said, in the light of the findings of the two courts below, particularly that of the Court of Appeal, that the plaintiff had failed in his claims. Consequently, therefore, I do not share the view of learned counsel for the defendant that the court below was wrong in not entering judgment for the defendant on his counterclaim, the plaintiff having failed to file a

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defence thereto. I therefore, answer the second issue argued in this appeal in the affirmative.
Finally for the reasons I have given above I agree with the conclusion reached by my learned brother Olatawura J.S.C. in his lead judgment just delivered that this appeal be dismissed. I too dismiss it and as there has been no cross appeal by the plaintiff I affirm the judgment of the court below ordering a retrial of the action and counterclaim in the High Court of Plateau State. In view of the age of this action – the writ of summons was issued out in November 1982 – I direct that the High Court should give expeditions hearing to the retrial.
I abide by the order for costs of this appeal made by my learned brother Olatawura J.S.C. in his lead judgment.

I have had the advantage of reading in draft the judgment read by my learned brother Olatawura, I.S.C. and I am also of the opinion that the appeal fails and should be dismissed. A
The facts of the case have been set out in the said judgment and it is unnecessary to repeat them.
Two main issues arising for determination in this appeal are:-
1. Whether the learned Justices of the Court of Appeal were right in their interpretation of S.5(2) of the Land Use Act which postulates that upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished, even in this instance when it is common ground that the appellant, with one

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Alhaji Musa Gombe already were entitled to the use and occupation of part of the land covered by the statutory right of occupancy aforesaid, the same not having been revoked or otherwise extinguished.
2. Were their Lordships of the Court of Appeal right in failing to enter judgment for the appellant when the respondent did not file a defence to the counter-claim in the circumstances of this case.
It should be remembered that:-
(1) The appellant is a holder of a customary certificate of occupancy No. 251 dated 21/8/78 granted by the Jos Local Government under the Land Tenure Law.
(2) The respondent is the holder of a statutory right of occupancy No.PL 5399 granted by the Military Governor of Plateau State effective from 30:9:87. The two pieces of land overlap.
(3) The respondent did not file a defence to the counter-claim.
As to the first issue, learned counsel for the appellant submitted that the court below was in error when it held that S.5(2) of the Land Use Act. 1978 postulates a situation where existing right over land which has not been revoked or otherwise lawfully divested from the owner is extinguished upon the grant of a statutory right of occupancy by the Governor notwithstanding that the previous owner had a subsisting statutory right of occupancy granted by a competent authority.
He contended that the right of the appellant to the use and occupation of the same piece of land or a piece of land incorporating the land the subject-matter of the customary certificate of occupancy under the Land

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Tenure Law, cannot be said to have extinguished by the statutory right of occupancy granted subsequently by the Plateau State Government. He cited the cases of Dantumbu v. Adene & Ors. (1987) 4 NWLR (Pt 65) 314 at 326; Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 at416; Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 530 and S.5(2) of the Land Use Act, 1978.
It was his further submission that the customary certificate of occupancy granted to the appellant and Alhaji Gombe has not been revoked. We were urged to answer the two issues in the negative.
The learned counsel for the respondent in his reply stated that the appellant failed to advert to the ultimate decision of the Court of Appeal which is that no sufficient evidence connecting the land he was claiming with that claimed by the respondent and that both parties failed to satisfy the court on this ground. On this ground he submitted that neither of them was entitled to judgment hence the order for re-hearing.
He referred us to the following findings of the court below:-
1. “the onus is on the defendant to relate the land he is claiming to the one claimed by the defendant (sic). Having failed to do that, his claim to any portion of the land claimed by the plaintiff cannot succeed.
2. “Having held that he defendant has failed to connect his land with the land claimed by the plaintiff and for that reason his defence must crumble….”
See page 158 lines 20-22 of the record.
3. “there would be no need to consider the other point as to whether or not his title or interest in the portion of the

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land claimed by the plaintiff is of the same degree as that of the plaintiff in the land.”
See page 158 lines 22-25 of the record.
He submitted that the appellant did not challenge the above findings and therefore not competent to ask this court to make a pronouncement on the effect of a grant under S.6(1)(a) of the Land Tenure Law vis-a-vis under S.5(1)(a) of the Land Use Act.
We were urged to dismiss the appeal based upon this premise.
Mr. Kayode Sofola’s alternative argument is that the appellant’s Customary Certificate of Occupancy No. 251 relied upon by him was issued on 21/8/78 under and by virtue of the Land Tenure Law. The Statutory Right of Occupancy was issued to the respondent on 30/9/82 with the knowledge of the existence of the Certificate No. 251 of 21/8/78. He referred us to the case of Saude v. Abdullahi (supra) and that by virtue of S.5(1) of the Land Use Act, a later statutory right of occupancy extinguished any right which the appellant might have derived by the Customary Certificate of Occupancy issued on 21/8/78. We were urged to dismiss the appeal.
It should also be pointed out that the court below at page 156 lines 5-33 stated:-
“Section 5 sub-section 2 of the Land Use Act provides as follows:-
…………………………………….
Having regard to the above statutory provisions the irresistible conclusion I reach is that counsel for the plaintiff is right in his submission to us in his brief and in his oral argument to us to the following effect:-

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“The effect of grant of a statutory title, under S.6(1)(a) of the Land Tenure Law which is identical with S.5(1)(a) of the Land Use Act is that all other rights to the use and possession of the land. The subject of the grant extinguished. Where there are two conflicting titles granted under the same section, the first in time may be stronger in law”;
The court below then proceeded to consider the uncertainty of the land claimed by the appellant and the absence of a composite plan showing the relationship between the land claimed by him and the portion claimed by the respondent.
Section 5(2) of the Land Use Act provides:-
“Upon the grant of a statutory right of occupancy under the provisions of subsection (1) of this section, all existing rights to the use and occupancy of the land which is the subject of the statutory right of occupancy shall be extinguished.”
In my view, the above provision means what it says. The language is clear.
See Saude v. Abdullahi (supra) at page 416 where Obaseki, J.S.C. said:-
“Upon a proper interpretation of subsection (2) of section 5 of the Land Use Act, a later statutory right of occupancy extinguishes all rights created by an earlier grant. To save an earlier grant of statutory right of occupancy, the later right of occupancy must be expressly set aside.”
The judgment of this court in the case of Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 530 also supports the view that on a grant of statutory right of occupancy under

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S.5(1) of the Land Use Act, all existing rights to the use and occupation of the land which is subject to that right shall be extinguished.
As to the question of tile respondent not filing a reply to the counter-claim, it is well settled that where a defendant counter-claims against the plaintiff the latter is duty bound to file a reply in defence to the counter-claim because the court is entitled to assume that the plaintiff has no defence to the counter-claim and may enter judgment for the defendant accordingly. See Ogbonna v. Attorney-General of Imo State & Ors. (1992) 1 NWLR (Pt. 220) 633 at 675; and Nigerian Housing Development Society Ltd. v. Mumuni (1977) 2 S.C. 57.
    The court below in addition to its finding that the land claimed by the appellant is uncertain in relation to that claimed by the respondent, went on to say that the facts relied upon by the appellant in his statement of defence in answer to the respondent’s claim are the same facts that the appellant is relying upon as giving rise to his counter-claim against the respondent on the issue of title to the land claimed by the respondent.
The court below also found that the defence of the appellant to the respondent’s claim and the appellant’s counter-claim are intertwined and interwoven.
The appellant did not challenge the findings of the court below as to his failure to connect the land he is claiming with that claimed by the respondent and the effect of such failure on his claims. The respondent did not also cross appeal against the order for retrial. This court cannot give them what they did not ask for.
I therefore hold that the appeal fails. It is hereby

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dismissed. The judgment of the court below delivered on 1/6/87 is affirmed. The case is accordingly remitted to the High Court of Plateau State for hearing de novo by another judge of the said High Court. I abide by all the consequential orders including that as to costs contained in the lead judgment.

I am in full agreement with the judgments which my Lords have given. The lead judgment of my learned brother, Olatawura, J.S.C., has explained the import of the provisions of section 5(2) of the Land Use Act which agrees with the interpretation made in the lead judgment of the Court of Appeal, per Agbaje, J.C.A. (as he then was). ‘
Following the opinion of my Lord Obaseki, J.S.C., in the case of Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 at 416, it has been made plainly clear that a later grant of right of occupancy shall extinguish all rights, customary or statutory, earlier granted on the same piece of land. Mr. Fashola, learned counsel who made oral submissions for the appellant cannot be correct to say that as the appellant had prior right of occupancy over the land in dispute, the governor could not grant a statutory right over the same land without first revoking the earlier grant. I see no dispute in this issue because in the case of Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 Kawu, J.S.C., while interpreting the provision of section 9(1)(b) of the Land Use Act held that the grant of a statutory right of occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted.
For these and fuller reasons given by my Lords in their

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respective judgments, I hereby dismiss this appeal. 1abide by all the orders made including award of costs in the lead judgment.

Having been privileged before now to have a preview of the lead judgment of my learned brother Olatawura, J.S.C. just delivered, I entirely agree with him that this appeal be and is hereby dismissed. I abide by the consequential orders inclusive of those as to costs made in that judgment.

 I have had the privilege of reading, in draft, the judgment just read by my learned brother, Olatawura, J.S.C. I agree that the appeal should be dismissed and accordingly I too dismiss it with N1,000.00 costs in favour of the plaintiff. I, however, wish to add a few comments of mine.
One of the issues for determination raised in this appeal was the interpretation of section 5(2) of the Land Use Act. The provision of the section is as follows:-
“5(2) Upon the grant of a statutory right of occupation under the provisions of subsection (1) of this section, all existing rights to the use and occupancy of the land which is the subject of the statutory right of occupancy shall be extinguished.”
In my view, the words used in the provision of section 5(2) of the Act are plain and unambiguous. In the circumstance, they should be given their plain meaning. A court interpreting the provision of the section will consequently limit itself to interpreting the said provision and should not concern itself with what the law ought to

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be. See Abioye v. Yakubu (1991) 5 NWLR (Pt.190) 130. Applying the foregoing principles in the interpretation of section 5(2) of the Land Use Act, the legal position is that a grant of statutory right of occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted. My view is in line with the view expressed by this court in Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519 at 530, cited in the lead judgment in the same connection.
In other words, the Land Use Act does not contemplate or permit a situation in which one person will hold a valid certificate of occupancy issued by a local government and another person will hold a certificate of occupancy issued by the governor in respect of the same parcel of land at or during the same time or period.
The question whether the statutory provision, as properly interpreted, is rational, good or bad is completely irrelevant. The court has to give effect to it because it is not the court’s business to try to avoid the consequence of a statutory provision which is plain and/or unambiguous. See Aya & Anor. v. Henshaw (1972) 5 S.C. 87 at 95.
For the reasons given above and the fuller reasons given in the lead judgment of my learned brother, Olalawura, J.S.C., with which I agree. I dismiss this appeal and make the same consequential orders made by my learned brother, Olatawura, J.S.C.

Appeal dismissed.