IBRAHIM v. SULEIMAN
(2020)LCN/14846(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Friday, December 18, 2020
CA/YL/76/2019
RATIO
RELIEFS: REQUIREMENTS FOR GRANT OF DECLARATORY RELIEFS
It is the law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence had been led by the Plaintiff or person seeking the declaratory relief.
See Anyanru v. Mandilas Ltd(2007) 4 SCNJ 288, Chukwuma v. S.P.D.C. (Nig.) Ltd (1993) LPELR – 864 SC at 64 – 65 and Matanmi & Ors v. Dada & Anor (2013) LPELR – 19929. PER ABIRIYI, J.C.A.
LAND LAW: ONE OF THE WAYS OF PROVING TITLE TO LAND
Production of documents of title is one of the five ways of proving title to land. See Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31 and Adesanya v. Aderonmu(2000) 6 SC (Pt. 2) 18. PER ABIRIYI, J.C.A.
LAND LAW: DUTY OF COURT WHERE THERE IS EVIDENCE TO SHOW A CERTIFICATE OF OCCUPANCY WAS WRONGLY OBTAINED
Where there is evidence to show that a Certificate of Occupancy was wrongly obtained, the Court is entitled to nullify it. See the judgment of the Supreme in Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53. PER ABIRIYI, J.C.A.
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
ALH. ALIYU IBRAHIM APPELANT(S)
And
DAYYAIBU MOHAMMED SULEIMAN (Suing Against Him And Entire Hamman Njidda Kofare Family Of Jimeta-Yola) RESPONDENT(S)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on the 12th February, 2018 in the High Court of Adamawa State holden at Yola.
In the High Court (the Court below), the Appellant was the Plaintiff and claimed for declaration of title to the land in dispute, an order of perpetual injunction restraining the Respondent who was the Defendant from further committing acts of trespass and general damages.
The Respondent counterclaimed for the following;
“A declaration that he is the lawful owner of the land in dispute, a declaration that the acquisition of the land by the government without notice and compensation was null and void and an order setting aside the allocation to the Appellant. The Respondent also counterclaimed for an order of perpetual injunction restraining the Appellant from entering the land as well as general damages for trespass and costs of the action.”
The case of the Appellant is very simple and short. According to him, he was allocated the land in 1978 by the erstwhile Gongola State Government and later issued a Certificate of Occupancy Exhibit A.
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He had been in peaceful possession of the land until 2016 when the Respondent trespassed into it.
In defence and proof of his counterclaim, the Respondent stated that the land was acquired by the erstwhile Gongola State Government in 1978 without paying compensation to the Hamman-Njidda Kofare family who are the original owners of the land despite protest against the acquisition without compensation. That the land in dispute forms part of the land inherited by the Respondent. That the Respondent has never been in possession of the land in dispute.
After considering the evidence led by both parties and addresses of learned counsel for both parties, the Court below dismissed the claim of the Appellant. It entered judgment in favour of the Respondent/counterclaimant and granted all the reliefs sought by the Respondent/counterclaimant except relief 6 which was a counterclaim for general damages.
The Appellant has proceeded to this Court by a notice of appeal dated and filed on 2nd March 2018. The notice of appeal contains four grounds of appeal. From the four grounds of appeal, the Appellant presented the following three issues for determination:
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- Whether the trial Court was right when it dismissed the claims of the Plaintiff/Appellant and declared the Appellant’s Certificate of Occupancy No. GS/780 dated 1st August 1987 null and void and declared title in favour of the Respondent over the land in dispute (Distilled from ground 1).
2. Whether the Defendant/Respondent has proved his counterclaim to entitle him to the reliefs as contained in the counterclaim (Distilled from grounds 2 & 3).
3. Whether the trial Court is right when it granted all the reliefs of the Defendant/Respondent as contained in the counterclaims (sic) without joining the Adamawa State Government as a party to the suit. (Distilled from ground 4).
The Respondent adopted the issues formulated by the Appellant.
On issue 1, learned counsel for the Appellant referred the Court toIdundun v. Okumagba (1976) 9 – 10 SC 227, where the five ways of establishing title to land were set out. He submitted that by a Certificate of occupancy No. GS/780 (Exhibit A) dated 1982, issued to the Appellant, the Appellant had been in lawful possession and occupation of the land in dispute since 1982 without any interference from any person or authority.
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The Appellant, it was submitted, thus proved ownership of the land in dispute by production of documents of title and act of long possession and enjoyment of the land. It was submitted that the Court below erred when it nullified Exhibit A and dismissed the claim of the Appellant.
On issue 2, it was submitted that the Respondent relied on traditional evidence in proof of his root of title, but failed to discharge the legal burden on him to prove same. The Respondent, it was submitted, failed to mention in succession the names of the intervening owners of the land in dispute before it devolved on him from the alleged founder and this was fatal to his counterclaim. The Court was referred to Abeje v. Alade (2011) All FWLR (Pt. 593) 1969, and Anyafulu v. Meka (2014) All FWLR (Pt. 731) 1510.
It was contended that the Respondent claimed inheritance from his late father Suleiman Kofare but failed to adduce evidence before the Court to show how the property of his late father was distributed or partitioned among his heirs to confer ownership of the land measuring 250 x 230 feet on him.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Learned counsel for the Appellant further argued that the Respondent contradicted himself through his documentary evidence. That the Respondent relied on a letter dated 19th September 2006 from the Adamawa Emirate Council in paragraph 13 of his statement on oath but that contrary to the claim of the Respondent that Alhaji Hammanjidda Kofare was the founder of the land in dispute, the contents of the said letter clearly show that the land was allocated to Kofa people by his Royal Highness Lamido of Adamawa. This it was argued had destroyed the root of title of the Respondent as regards his evidence of traditional history in respect of his counterclaim.
The letter Exhibit E, it was submitted, does not help the case of the Respondent as it does not refer to the land in dispute.
That the letter is also not addressed to any person but only copied to Alhaji Sule Kofare.
That Exhibit F does not also have any relationship with the land in dispute but with a different land and different persons.
It was submitted that there was no credible evidence showing how the land devolved on the Respondent’s father Alhaji Suleiman Kofare.
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That no evidence was led on the partition of the land among family members and it was not shown that the Respondent’s father late Alhaji Suleiman Kofare was the sole heir of Alhaji Hammanjidda Kofare. Furthermore, that the Respondent did not establish when the land devolved to his father and in the turn to him and that he was the sole heir to his father, it was contended.
It was submitted that the Respondent had averred that his grandfather Alhaji Hammanjidda Kofare was the founder of the land in dispute but there is clear evidence by the Respondent himself that the land was granted to Kofa people by the Lamido of Adamawa.
The Respondent, it was argued, could not show at the locus in quo the area measuring 250 x 230 feet he was counterclaiming.
It was submitted that the Court below erred when it granted declaration of title in favour of the Respondent over the area of land measuring 250 x 230 feet when same had not been identified.
On issue 3, it was submitted that the Court below was in serious error when it relied on the non-payment of compensation by the government to nullify the Certificate of Occupancy issued to the Appellant and dismiss the Appellant’s claim, when the government was not made a party to the suit.
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The issue of whether or not payment of compensation was made was not within the knowledge of the Appellant. It was submitted that the Court could not properly adjudicate on this without the Adamawa State Government being made a party to the suit. This is moreso that the counterclaim of the Respondent was for an order nullifying the Certificate of Occupancy No. GS/780 issued by the State Government and for a declaration that the purported acquisition of the land in dispute by the government without compensation was null and void. The Court was referred to Yakubu v. Impresit Bakolori Plc. (2011) All FWLR (Pt. 598) 827 and Bakare v. Adeogun (2014) All FWLR (Pt. 737) 611.
It was submitted that the failure to join Adamawa State Government in the suit rendered the counterclaim of the Respondent incompetent and the Court below lacked the jurisdiction to entertain same.
On issue 1, learned counsel for the Respondent pointed out that the case before the Court below was principally for declaration of title to the land in dispute.
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Therefore, there was a heavy burden of proof on the Appellant which he had to discharge in order to get judgment in his favour. He submitted that there are five ways of proving title to land and cited in support of the principle, the decision of this Court in Okoli v. Omagu (2014) LPELR – 22665 (CA).
Appellant’s case, it was pointed out, was based on the Certificate of Occupancy (Exhibit A). Therefore, the state was the Appellant’s root of title being the grantor of the certificate. However, the title of the grantor, it was contended, was challenged by the Respondent. The Respondent, it was submitted tendered Exhibits D, E and F showing how Respondent’s family representative, Alhaji Suleiman Kofare challenged the government on the issue of compensation and the government informed the family that the matter was receiving attention. But to date no compensation has been paid.
Learned counsel for the Respondent submitted that the burden of proof shifted to the Appellant to show how the state acquired the land and that the acquisition was proper but that the Appellant merely brandished Exhibit A without further explanation.
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It was submitted that the traditional history pleaded by the Respondent was not challenged by the Appellant. It was submitted that the mere production of Certificate of Occupancy is not enough. That the Appellant ought to have gone further to show that the certificate was properly granted to him and that his grantor properly acquired the land from the traditional owners of the land, in this case the Respondent’s family. The Appellant, it was submitted, failed to discharge this burden placed on him.
On issue 2, learned counsel for the Respondent referred the Court toIdundun v. Okumagba (1976) NMLR 200 and Aiyeola v. Pedro (2014) 5 SCNJ 422 on the five ways of proving title to land. He also referred the Court to the statement on oath of the Respondent which he reproduced extensively in the brief.
It was contended that from the evidence of the Respondent, he relied on traditional evidence, acts of selling, leasing, renting out all or part of the land or farming on it or a portion thereof, 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 in proof of his title to the in dispute.
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It was submitted that the Respondent proved that he exercised numerous acts of possession and ownership of not just the land in dispute but of connected and adjacent land.
Parties, it was submitted, are at ad idem on the identity of the land and this is evident from the proceedings at the locus in quo. It was submitted, that having agreed on the identity of the land at the locus in quo, the difference in measurement only amounted to using different names to call the same thing.
On issue 3, it was submitted that the non-joinder of the Adamawa State Government did not prevent the Court from doing justice to the parties before it.
It appears to me that only two issues arise for determination in this appeal. These are:
1. Whether the Appellant had established his claim to the land.
2. Whether the Respondent had proved his counterclaim to entitle him to the reliefs sought.
Both parties seek declaratory reliefs among other reliefs. It is the law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence had been led by the Plaintiff or person seeking the declaratory relief.
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See Anyanru v. Mandilas Ltd(2007) 4 SCNJ 288, Chukwuma v. S.P.D.C. (Nig.) Ltd (1993) LPELR – 864 SC at 64 – 65 and Matanmi & Ors v. Dada & Anor (2013) LPELR – 19929.
In the instant matter, the Appellant sought to establish his claim by production of documents especially a Certificate of Occupancy No. GS/780 issued to him by the former Gongola State Government. Production of documents of title is one of the five ways of proving title to land. See Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31 and Adesanya v. Aderonmu(2000) 6 SC (Pt. 2) 18. Learned counsel for the Respondent argued that the Appellant had a burden to show how the state government acquired the land allocated to him. He also submitted that the Appellant merely brandished the Certificate of Occupancy (Exhibit A). Where there is evidence to show that a Certificate of Occupancy was wrongly obtained, the Court is entitled to nullify it. See the judgment of the Supreme in Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53.
The Court below in the judgment at page 299 of the record held that it was not enough for the Appellant to
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“only dangle Certificate of Occupancy before the Court and keep quiet.” That the Appellant ought to have led evidence to show how the government that allocated the land to him acquired the land. The Court below placed the burden of calling the issuing authority on the Appellant who tendered the Certificate of Occupancy. With due respect to Respondent’s counsel and the Court below, the Appellant having tendered the Certificate of Occupancy the burden of impugning it was on the Respondent. It was not enough merely to claim that no notice of acquisition of the land was given to the Respondent’s family or that no compensation was paid by the government. These do not show that the Appellant wrongfully obtained the Certificate of Occupancy.
Issue 1, is therefore resolved in favour of the Appellant and against the Respondent.
The Respondent hinged his counterclaim on failure of government to give the family notice of acquisition or revocation of their customary title to the land as well as failure to pay compensation to the original owners of the land, that is, his family. He led no evidence to establish these assertions.
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Exhibit D tendered by the Respondent is a complaint in respect of property belonging to M. Kassim Mohammed dated 7th February, 2007 by the Ministry of Lands and Survey to His Royal Highness Murum Mbula Toram Joel FWA. It has nothing to do with the land in dispute in this case. Exhibit E also tendered by the Respondent written in 1972 by the Permanent Secretary Ministry of Works, Lands and Survey shows that a complaint was receiving attention. It did not state what complaint was receiving attention. It was not shown to have been written to the Respondent’s family.
Exhibit F also tendered by the Respondent is a letter from the Ministry of Land and Survey. It is dated 23rd May, 2013. It is in respect of property not covered by Exhibit A. None of these exhibits support the claim of the Respondent that there were correspondences between the Respondent’s family and government on the acquisition of the land without notice and without payment of compensation to them.
Issue 2 is also resolved against the Respondent and in favour of the Appellant.
Both issues having been resolved in favour of the Appellant and against the Respondent, the appeal is
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allowed by me. The Judgment of the Court below is hereby set aside.
Judgment is hereby entered in favour of the Appellant and against the Respondent in the following terms:
1. Appellant is hereby declared the person entitled to the piece of land covered by Certificate of Occupancy No. GS/780 with Ref. No. GS/MLS/LAN/2281 dated 1st August, 1987 measuring 5753.83 square metres, on plain sheet GSPY 1 Jimeta-Yola.
2. An order of perpetual injunction is hereby made restraining the Respondent, his agents, privies and/or the entire Hamman-Njidda Kofare family of Jimeta-Yola or any other person whosoever called claiming through him from committing further acts of trespass on the property.
3. An order of mandatory injunction is also made compelling the Respondent or any member of the Hamman-Njidda Kofare family of Jimeta-Yola or any person claiming title through him to forthwith remove the structures that were illegally erected on the said property.
The Appellant is awarded Two Hundred Thousand Naira general damages and N100,000 costs both to be paid by the Respondent.
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CHIDI NWAOMA UWA, J.C.A.: I read before now a draft copy of the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA. His lordship has adequately and comprehensively resolved the issues that arose in this appeal, I adopt same as mine in holding that the appeal is meritorious.
I also allow the appeal, the judgment of the trial Court is hereby set aside.
I abide by the order made as to costs in the leading judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Olu Adebambo, Esq. For Appellant(s)
Elija, Esq. For Respondent(s)
