ALOYIUS AKAA v. JOSEPH IKYAATOR
(2013)LCN/6355(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of June, 2013
CA/J/213/2009
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
ALOYIUS AKAA Appellant(s)
AND
JOSEPH IKYAATOR Respondent(s)
RATIO
WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND
I entirely agree with the evaluation of evidence and finding of fact as conducted by the learned trial Chief Judge and I am also in support of his conclusion that the Appellant has not established his root of title by credible evidence.
It is now more than settled that there are five ways to prove title to land to wit:
(a) By traditional evidence
(b) By production of documents of title duly authenticated in the sense that their due execution must be proved.
(c) By positive act of ownership extending over a sufficient length of time.
(d) By act of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.”
Establishment of one of the five ways is sufficient proof of ownership. See CHUKWU V. DIALA (1999) 6 NWLR (PT. 608) 674; ADESANYA V. ADEROWNMU (2000) 6 SC (PT. 11) 18; NKADO V. OBAINO (1997) 5 NWLR (PT. 503) 31 and AYOOLA V. ODOFIN (1984) 11 SC 120. PER OSEJI, J.C.A.
WHETHER OR NOT A CERTIFICATE OF OCCUPANCY ISSUED BY A COMPETENT AUTHORITY RAISES THE PRESUMPTION THAT THE HOLDER IS THE OWNER IN EXCLUSIVE POSSESSION OF THE LAND
It is trite that a Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land concerned. It also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy. See EZENNAH v. ATTA (2004) ALL FWLR (PT. 202) 1358; MADU V. MADU (2002) 13 NWLR (PT. 784) 286; ASZUWA V. OJO (1999) 13 NWLR (PT. 784) 286. PER OSEJI, J.C.A.
WHETHER OR NOT THE COURT OF APPEAL CAN INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL COURT
The position of the law is that the Court of Appeal should not disturb a finding of fact unless that court is satisfied that such finding is unsound. See Ebba V. Ogodo (1984) 1 SCNLR 372 and Okpuruwa V. Okpokam (1988) 4 NWLR (Pt. 90) 554. PER OSEJI, J.C.A.
SAMUEL C. OSEJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of justice, Makurdi, Benue State, delivered by Hon. Justice I. Hwande C.J on the 28th day of May, 2009 in suit No. MHC/117/2002.
The Respondent in this appeal was the Plaintiff in the lower Court. His claim in this suit as per paragraph 16 of his further amended statement of claim dated and filed on 21-06-2006. Reads thus:-
16 (a) A declaration that the plaintiff is the bona-fide owner of plot No. BN 2076 as evidenced by both the Right of Occupancy and Certificate of Occupancy.
(b) AN ORDER of perpetual injunction restraining the Defendant by himself, his successors, servants, agents, privies or whomsoever claiming through him from trespassing into or interfering with the Plaintiffs peaceful enjoyment of his plot No. BN 2076.
The Appellant (then as Defendant) reacted by filing a statement of defence with a counter-claim where in paragraph the claim the following reliefs:-
9 “Whereof the Defendant has suffered loss and damage and counter-claim against the Plaintiff as follows:-
(A) A special damages of N100, 000.00 (one hundred thousand naira) for mischief to the Defendant’s economic trees and crops.
(B) General damages of N50, 000.00 (Fifty thousand) naira for unlawful arrest and false imprisonment at the instance of the Plaintiff
(C) An Order of perpetual injunction against the Plaintiff, his agents, servants and or privies over this issue”
In summary the Plaintiff (now Respondent’s) case is that sometimes in 1979, he applied for and was granted a Right of Occupancy over a parcel of land at the Industrial Layout by the Benue State Government. Persons affected by the said allocation were required to come and collect their compensation from the Ministry of land and survey. Several people collected their compensation and vacated the land. The Appellant was approached to collect his own but he requested for time to make available his passport photographs as required before any compensation will be paid; but he never did. In 2001, the Respondent went to the land only to discover that the Appellant has commenced building of a three room house, deposited some trips of sand and also planted some economic trees. He warned the Appellant to keep off the land but to no avail so he reported the matter to the Bureau of lands and survey who after confirming the ownership of the land instructed the appellant to vacate but he still refused and the matter was reported to the police. The continued intransigence of the Appellant led him to bring this action.
The Appellant denied the claim and posited that he acquired the land in 1974 through purchase from one Aloysius Idye in the sum of N600.00 and that there is agreement to that effect. He added that in 1982, the Respondent broke into the land but he confronted him and showed him the agreement.
At the trial of the case at the lower Court which hearing commenced on 27 – 02 – 2006, the Respondent as Plaintiff therein testified and called 4 witnesses. The Defendant also testified and called three witnesses. The parties thereafter filed and exchanged their written addresses which they adopted on 23 – 04 – 2009, the lower Court granted the Respondent’s claim and dismissed the Appellant’s counter claim.
Aggrieved and dissatisfied with the said judgment, the appellant filed a Notice of Appeal dated 18 – 06 – 2009. The said Notice of Appeal which shorn of their particulars read thus:-
1. The trial High Court Chief Judge, Justice lorhemen Hwande erred in law when he held that he was stopped and became functus officio on the issue of statute barred raised by the Appellant.
2. The trial High Court erred in law by declining striking out or dismissing the Respondent’s case when the same was statute bar pursuant to the Section 3 Benue State Limitation Law 1988 and justice was miscarried.
3. The trial High Court judge erred in law when it failed to hold that the Appellant is a deemed holder of Statutory Right of Occupancy pursuant to Section 34 (2) and (5) of the Land Use Act and it occasioned miscarriage of justice.
4. The trial High Court Judge erred in law when he failed to evaluate or properly evaluate the evidence before him and this occasioned a miscarriage of justice.
5. The judgment of the trial High Court is against the weight of the evidence.
In accordance with the demands of the Rules of this Court, the parties subsequently filed and exchanged their briefs of argument. The Appellant’s brief of argument is dated 9 -10-2009 but filed on 13 -10- 2009 while the Respondent’ brief is dated 14 – 12 – 2009 and filed on 02-02 -2010 but deemed properly filed on 07 – 02 – 2013.
In the Appellant’s brief of argument 4 issues were formulated for determination as follows:-
1. Whether or not the trial Court was functus officio and estopped from deciding the issue of statute bar pursuant to Section 3 of the Benue State Limitation law 1988 by virtue of his earlier ruling on 15- 02 -2007 in motion No.MHC/484M/2006 deferring consideration of same to the conclusion of all evidence by both parties.
2. Whether or not the suit of the Respondent as filed on 22 -04 -2002 was statute barred pursuant to Section 3 Benue State Limitation Law 1988.
3. Whether or not the trial Court was right when it failed and or refused to hold that the Appellant is a deemed holder of statutory Right of Occupancy pursuant to Section 34 (2) Land Use Act 1990, Laws of the Federation of Nigeria.
4. Whether the trial Court properly evaluated and weighed the evidence before it in arriving at its decision or not.
For the Respondent, in formulating issues for determination stated as follows:
“Four issues were formulated by the Appellant for determination. We merge them into two issues. Argument proffered shall consider points raised in the order issues.
1. Whether or not the suit of the respondent filed on the 22 -04 – 2002 was statute barred pursuant to Section 3 Benue State Limitation Law 1988.
2. Whether the trial Court was right when it refused to hold that the Appellant is a deemed holder of Statutory Right of Occupancy pursuant to Section 34 (2) Land Use Act 1990 Laws of the Federation of Nigeria.”
The Respondent seemingly adopted the 4 issues as raised in the Appellant’s brief but decided to compress his argument therein under two issues. This indeed is not elegant. Be that as it may, I shall in the circumstance adopt the four issues as formulated by the Appellant in the consideration of this appeal.
ISSUE 1
Dwelling on this issue S. A. Nguekwagh of counsel for the Appellant submitted that the lower Court was not functus officio or estopped from deciding the issue of statute bar as same has never finally been decided upon but deferred to be considered at the end of all the evidence of the parties. He referred to the Appellant’s motion No. MHC/484M/2006 seeking the striking out or dismissal of the Respondent’s suit in the lower Court for being statute barred as well as the ruling on it by the lower Court at pages 123 – 125 of the Record, particularly page 124 lines 20 -24 to submit that it shows that the lower Court postponed its decision on the issue of statute bar till after all evidence has been taken.
Learned counsel further submitted that it follows thereon that the trial Court never finally decided on the issue, therefore the subsequent holding in its judgment at page 152 – 153 that it is functus officio and estopped from further deciding on the issue of statute bar was a gross error because the issue raised in the motion for striking out was not finally disposed of but deferred to the end of taking evidence. He placed reliance on MBAKWE v. RMS AFRICA (2001) FWLR (pt. 59) 1345 and ADEBAYO V. BABALOLA (1995) 31 LRCN 200 AT 213.
Learned counsel concluded that the decision on the issue of statute bar raised by the Appellant was not decided on the merit but suspended till the conclusion of evidence by the parties.
On this issue, it was submitted by V.T. Uji of counsel for the Respondent that the trial Court dismissed the application for striking out on 15 -02-2007 but that this court can proceed to consider the arguments as proffered since the complaint borders on jurisdiction and can be raised at any stage.
Now the said motion for striking out the suit for being statute barred was heard on 13 – 12 – 2005, and ruling delivered on 15 – 02 – 2007, the learned trial judge after a review of the relevant authorities on when a cause of action is deemed to arise for the purpose of the Limitation Law made the following findings:-
“From the facts before the Court Plaintiff pleaded that there was no dispute initially when he met the Defendant as the Defendant promised to bring his passport. The same averment is repeated in the amended statement of claim. It is not proper of this stage to begin to evaluate the evidence and pleadings of the Defendant. That should abide the conclusion of evidence from both parties…
From what is before the court the Plaintiff has maintained that it was the action of Defendant in 2001 that convinced photographs to claim his compensation.”
The underlined portion is meant to bring to the fore the mind of the learned trial chief Judge on what is to be considered in deciding whether or not an action is caught by the statute of Limitation, hence he cited in support the case of SHELL PETROLEUM CO. V.ONOSANYA supra at page 94 wherein the Supreme Court held that:-
“In considering whether to strike out a pleading, the Court must restrict itself to facts in the particular pleading without having recourse to the facts in the opponent’s Pleadings”
I have found it impossible to fault the reasoning of the learned trial chief judge in that regard. I actually find it strange that learned counsel for the Appellant had course to challenge the applicability of the above cited authority on the ground that it deals with striking out of a pleading and not the entire suit as in this case. I believe that a him that the Defendant was not sincere in his earlier proper and cursory reading of the ruling of the lower Court would have given the learned counsel a clearer appreciation of the true import of the reasoning proffered therein. It must also be noted that where a Plaintiff’s pleadings is struck out, it to all intents and purposes means an end to the suit as he virtually has nothing to stand on in the pursuit of his claim.
What is more? The learned trial judge after the earlier reproduced reasoning came to the following conclusion:-
“It is my view that from the facts pleaded by the plaintiff there is no justifiable reason to hold that the case is statute barred at the time plaintiff come to court. I refuse the application to strike out the case and that application stands dismissed!”
It is very clear from the above ruling of the lower Court that the Appellant’s motion for striking out the suit was duly considered and properly dismissed. There is nothing in the ruling to disclose any attempt to defer or postpone the consideration whether the action was statute barred till the close of evidence. Even if there was any (but there was none) the holding of the lower Court that the application is dismissed put an end to it and consequently, I cannot but agree with the learned trial chief judge that he has become functus officio as far as the ruling was concerned having conclusively decided on it one way or the other. The only option open the Appellant in such a situation is to appeal against the said ruling.
The period of limitation in any statute of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and by comparing the date on which the writ of summons was filed. Where it is disclosed that the date on the writ of summons is outside the period allowed by the Statute of limitation, then the action is said to be statute barred. See ELEBANJO V. DAWODU (2006) ALL FWLR (PT. 328) 604 AT 546: OKENWA V. MILITARY GOVERNOR OF IMO STATE (1997) 6 NWLR (PT. 507) 154 and AJI V. ADETOLA (2004) ALL FWLR (PT. 236) 232.
In the instant case the learned trial judge found from the facts pleaded by the Plaintiff that the action is not statute barred and consequently dismissed the Appellant’s motion. That puts an end to the issue except on appeal.
On the whole, issue one is accordingly resolved against the appellant.
ISSUE 2
Herein, learned counsel for the Appellant referred to Section 3 of the Benue State Limitation Law 1988 which provides that an action shall be brought within ten years from the date of the commencement of the dispute or same shall be statute barred. He added that the cause of action in this suit at the lower Court arose in 1982.
Learned counsel also referred to the evidence of PW1 to PW5 at pages 109 to 126 of the Record as well as paragraphs 3 and 9 of the statement of claim and paragraph 34 of the statement of defence to counter claim and paragraphs 3H 4 and 5 of the amended statement of defence.
He submitted that the Respondent having slept for so long over the dispute, his belated suit is caught up by Section 3 of the Limitation Law 1988 and has as such lost his right of action. He relied on the following authorities on cause of action: LAWANI ADESOKAN v. PRINCE MICHAEL OYETUNJI (1997) 48 LRCN 579 AT 600 and SAVAGE V. UWAECHIA (1972) 3 SC, 214 AT 220.
On the issue of statute bar, he cited ODUAH V. BANK OF THE NORTH (2001) FWLR (PT. 59) 1304 and JOHN EBOIGBE V. NNPC (1994) 6 SCNJ 7 AT 77.
In his reply, learned counsel for the Respondent submitted that the suit was not caught by the statute of limitation. He added that the Appellant did not create any problem at first as he did not come out to reject the compensation offered to him out rightly and there was no reason to believe that he was going to reject it eventually. Learned counsel referred to the evidence of the PW5 at page 127 of the Record and that of the Respondent at page 116, as well as that of the DW2 at page 134 and submitted that the right of action accrued from the date the Appellant recommenced fresh construction on the land in this suit was filed in 2002, when it became clear that the Appellant decided to continue building on the land instead of collecting the compensation due to him.
Now, a cause of action is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to sue and it consists of two elements, viz. the wrongful act of the defendant which gives the plaintiff his cause of complaint, and the consequent damage. In other words, it is a factual situation which a plaintiff relies upon to support his claim, recognized by the law as giving rise to a substantive right capable of being claimed or enforced against a defendant. See AGBANELO V. UNION BANK OF NIGERIA LTD (2000) 48C (P-11) 233: EMTATOR V. NIGERIAN ARMY (1999) 12 NWLR (PT 631) 361: ADESOKAN V. ADEGOROLU (1997) 3 NWLR (PT 493) 261 ASAGORO V. PAN ODEAN OIL (NIG) LTD (2006) 4 NWLR (PR 971) 595 and AKANDE V. ADISA (2004) ALL FW 212 (PT 236) 413.
In WOHEREM V. ENEREUWA (2004) ALL FWLR (PT 221) 1570 it was held by the Supreme Court per Iguh JSC at page 1581 that:-
“It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or protection of his legal right that has been breached”
However, the tenure of a right or cause of action is not at large or interminable. The period for the enforcement of such right of action expires or ends on the date or time frame that the statute of limitation proclaims that no such legal action or proceedings may lawfully be commenced by an aggrieved party. Thus where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or solidly instituted after the expiration of the prescribed period. Consequently, an action instituted after the expiration of the period prescribed by law is said to be statute-barred. In other words, time begins to run for the purposes of the limitation law from the date the cause of action accrues. See OGUNKO V. SHELLE (2004) 6 NWLR (P868) 17; SPDC (NIG) LTD V. FARAH (1995) 3 NWLR (PT 382)148; and ASABOR BS PAN OCEAN OIL (NIG) LTD. Supra.
In ascertaining the time when the cause of action accrued for the purpose of limitation law, the court only looks at the writ of summons and the statement of claim which contains averments as to when the wrong committed by the defendant took place and place it side by side with the date when the writ issued. See AJI V. ADETOLA (2004) ALL FWLR (PT. 236) 232.
In the instant case the application for writ of summons was filed in the lower court by the respondent on the 22-4-2002. In the Respondent’s further amended statement of claim dated 21-6-2006 he averred in paragraphs 6, 8, 9, 10, 11, 12 and 13 as follows:
7. “That sometime in the year 2001 the plaintiff notice some trespass on the plot when a three bedroom foundation was being constructed and the planting of some trees. Upon enquiry, the plaintiff discovered that the defendant is trespasser. Every effort to dissuade the defendant to keep off fell on deaf ears. The defendant himself does not live on the land in dispute.
8. That when the plaintiff again visited the plot in 2002, the defendant was busy carrying out construction on site using the trips of sand deposited by the plaintiff for his own work
9. That long ago since 1982, a letter dated 2/3/1982 signed by one ‘ATE GBAAGILE’ was addressed to all those who were affected by allocation of Land to plaintiff in BN. 2076 on the Industrial Layout as designated by Government inclusive of the defendent, to come and collect compensation. The defendant refused to come and collect his compensation (although all other accepted their compensation) despite being informed by plaintiff severally after he (defendant) was traced by plaintiff and his agent to his house at High Level where defendant promised bring his passport photographs for purpose of collection of compensation but never did.
10. That since 1982 the defendant knew that the plaintiff was being issued title deeds on plot No. BN. 2076. The plaintiff was actually issued a Certificate of Occupancy since 26/8/1987, and yet the defendant did nothing by way of challenging the title of the plaintiff in a court of law.
11. That the plaintiff had no choice but to report the defendant to the Police who in turn requested for information on the matter from the then Bureau of Lands & Survey (now Ministry of Lands & Survey) and the Bureau confirmed vide a letter dated 8th April, 2002 that the plaintiff is the bona fide owner of the plot with statutory title to it. The said letter is pleaded along with the entire contents of file No. BN 2076 and shall be relied upon at the hearing of this suit.
12. That the plaintiff verbally reported the activities of the defendant to the chief Town planning officer, Benue State Urban Development Board and followed it up with his letter dated 18/6/2002 complaining against the defendant for erecting illegal structure on his land. The Benue State Urban Development Board issued the defendant a “STOP NOTICE: Illegal Development” dated 15/5/2002 which was served on him on 11/5/2002 and the defendant’s illegal structure was consequently marked on 11/5/2002 by the same authority. The plaintiff caused a picture of the structure the defendant was erecting to be taken. The firm (negative) and the print out of the picture are hereby pleaded and shall be relied upon at the hearing of this suit. A copy of the letter dated 10/6/2002 and s photocopy of the stop notice dated 15/5/2002 are hereby pleaded and shall be relied upon at the hearing of this suit, Notice is hereby given for the Defendant to produce the Original copy of the Stop Notice served on him on 11/6/2002 at the hearing of this suit.
13. That the defendant has since 2002 continued to obstruct the plaintiff enjoying peaceful occupation and development of his plot. The defendant has been farming his crops on the sand deposited by the plaintiff, and has converted to his farms event those portions of the plot which were originally occupied by Messrs. Audu Adekaa, Bicycle Sado Christopher Yamsa, Kpenmslen Azev, Sykvester Anche and Akombur achim who all accepted compensation to their own lands and left the plot. Every effort to stop him has failed. Copies of the ministry of Housing & Environment Compensation payment Voucher with respect to those named above who were paid off are hereby pleaded.”
From the relevant paragraphs of the pleadings above reproduced, it seems to me that the date the cause of action arose is very clear without much ado. Paragraph 7 therein show that it was sometime in 2001, when the Respondent went to the land and noticed some trespass on the land with the presence of a three bedroom foundation under construction and the planting of some trees. Upon enquiry he discovered that the appellant was the trespasser. He tried to dissuade him but he continued with the act of trespass and this was long after the appellant was expected to have collected his compensation on the land like others did in 1982. The Respondent reported the matter to the police who in turn requested for clarification from the then Bureau of Lands and survey who confirmed through a letter dated 8/4/2002 that the Respondent is the bona-fide owner of the land with statutory title. But the appellant still continued with his act of trespass on the land even till the year 2002 when the Respondent decided to institute an action against him. Placing the facts as averred in the pleadings side by side, the application for writ of summons filed on 22-4-2002 it cannot be said by any stretch of argument that the action is statute barred section 3 of the Limitation Law of Benue state relied upon by the appellant reads: –
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him as if it first accrued to some person through whom he claims, to that person.”
For an action to be statute barred under the above state law, it must have been instituted more than ten years after the cause of action arose. That is however not so in the instant case where the amendments in the pleadings disclosed that the cause of action arose in the year 2001 when the Respondent noticed that the appellant has started the building of a three bedroom house on the land and also planting trees.
In the circumstance, I had and so hold that the Respondent’s action is not caught by the Litigation Law of Benue State as it affects land. Accordingly, issue two is resolved against the appellant.
ISSUE 3
Herein learned counsel for the appellant submitted that the appellant established his claim as a deemed holder of a Statutory Right of Occupancy pursuant to Section 34 of the Land Use Act. Having traced his title to Aloysius Idye who was the original occupier of the land before he bought the developed plot from him in 1974 at a consideration of N600 only as shown in Exhibit 1.
He referred to the evidence of DW1 and DW2 and PW1 – PW3 to say that it supported the case of the appellant that he came into the land before 1978 when the Land Use Act was enacted.
Learned counsel submitted that by Section 34(2) of the Land Use Act, the appellant is a deemed holder of the Statutory Right of Occupancy and he can only be divested of same in accordance with the law, but in this case there was no revocation of his title, neither was any notice to that effect given to him.
He added that the Land Use Act does not abolish or totally obliterate the character of land ownership of individuals, family or community as held in Eyo Ogbo V. Chief Oja Ojah (1996) 39 LRCN 1059 at 1082 and Ogunola V. Eiyekolo (1990) 4 NWLR (Pt. 146) 632 at 653.
Learned counsel was also of the stance that it was wrong for the lower court to hold that there was no authentic evidence to show that appellant acquired the land before 1998 when even the PW2 specifically stated that appellant bought and occupied the land from Aloysius Idye in 1977.
He referred to paragraph 3(A-H) of the appellants pleadings to say that he pleaded his root of title as a purchaser and occupier since 1974 and gave details of acts of occupation which the respondent did not react to and cited Zenith International Bank Ltd. V. Odunlami (2001) FWLR (Pt. 59) 1320 at 1394.
In his reply, learned counsel for the Respondent stated that the case of the Respondent was that he applied for a plot of land from the Government of Benue State and he was duly issued with a Right of Occupancy over plot No. BN. 2076. He thus relied on the issuance by the Governor as the root of his title over plot No. BN 2076 of which the piece of land in dispute forms only a small part measuring 104ft x 154ft. The appellant on the other hand relied on an agreement signed with one Aloysius Idye and dated 23-3-74 as the root of the title over a plot of land measuring 120ft x 150ft.
He added that the Land Use Act makes the Governor of a State the trustee of all the land in a State and the Power of the Governor over such land is not in dispute and none of the parties sued the Governor as relating to this suit.
Learned counsel referred to Section 34 of Land Use Act to contend that the appellant by the provisions has a duty to: –
a) Show evidence of customary occupancy;
b) Prove that immediately before the Act came into force in 1978 he was occupying the land;
c) Show that his land was developed and
d) Show any evidence of his application for certificate of occupancy.
He referred to the evidence of the appellant where he admitted under cross-examination that when he wrote the agreement he back dated it to read 23/3/74 but failed to state the date he wrote the agreement before back dating it. Learned counsel further submitted that the appellant did not call any relation of the said Aloysius Idye to testify in support of his assertion that he bought the land on a particular date before the coming into force of the Land Use Act in 1978.
Furthermore he says the agreement of 23/3/74 stated that the Land was behind UTC office, Makurdi whereas the said UTC office applied for and was granted a plot of land after the creation of Benue State in 1976. This shows that the appellant back dated the agreement with an ulterior motive of taking advantage of Section 34 of the Land Use Act.
Learned counsel also contended that the Appellant did not show a reliable evidence of customary occupation immediately preceding the Land Use Act in which case he has not shown a better title to that of the Respondent. He did not also challenge the Certificate of Occupancy granted the Respondent by the Governor neither did he join Governor in his counter-claim in which case no order of this Court will be binding on him Now the main issue here is whether the Appellant adduced enough evidence to justify his claim as deemed holder of a right of occupancy by virtue of Section 34 of the Land Use Act as to defeat the Respondent’s claim based on the Certificate of Occupancy issued to him with respect to the land in dispute.
To justify his deemed ownership of the said land in dispute, the Appellant averred in paragraph 3 A to C as follows:-
(3A) “That he is the bona-fide owner of his plot of land in issue and never the Plaintiff.
(B) That he bought from and was assigned the piece of land by Cpl Aloysius Idye in 1974 at a consideration of N600.00 only. He was the original owner of a vast land in the area including the plot in issue. The agreement is pleaded.
(C) At the time of assignment above Cpl Aloysius Idye has two room zinc roofed structure,a round hut and a toilet and some economic trees”
He also gave evidence in line with above pleadings and the said agreement was tendered through him and admitted in evidence as “Exhibit 1”. However under cross examination he testified as follows:
“It is true that I back-dated the agreement at the time I wrote it.
(see page 133 of the record)
Earlier on at page 132 of the record, he testified that
I do not know if the layout near UTC was carved by Benue State Government. They did not come to me; UTC was not there before the agreement in Exhibit I”
On the contrary, the said Exhibit I shows that the piece of land which is of 120 ft by 150 ft is located by UTC office, Makurdi. Equally of immense amazement in the whole scenario is the tacit admission by the Appellant that he backdated the agreement at the time he wrote it. This indeed cast a very dark cloud of doubt on the value of Exhibit I in proof of the Appellant’s ownership or title to the land in dispute. In this regard,the learned trial Chief Judge made the following findings in the judgment at page 155 of the record.
“It is obvious that the said agreement was prepared for the sake of this suit. It is not authentic and cannot any (sic) authentic agreement it is not certain that Defendant acquired that land through the vendor as he is claiming. There is also no evidence from anybody that witnesses that transaction. There is no authentic evidence to show that land before 1978 as submitted by the learned counsel. It is established that the Defendant was on the land before it was granted to the Plaintiff but regarding the time Defendant came into the land there is no reliefs (sic) Evidence before the court. No family member from Idye Aloysius that Defendant claimed to have acquired his titles in Court to confirm the transaction. The Court is persuaded to agree with counsel to plaintiff that Defendant only proved through his evidence that he was squatting on the land. There is no reliable evidence that the Defendant acquired the land through anyone that had never (sic) title over the land. It my view that Defendant has not established his root of title by credible evidence”.
I entirely agree with the evaluation of evidence and finding of fact as conducted by the learned trial Chief Judge and I am also in support of his conclusion that the Appellant has not established his root of title by credible evidence.
It is now more than settled that there are five ways to prove title to land to wit:
(a) By traditional evidence
(b) By production of documents of title duly authenticated in the sense that their due execution must be proved.
(c) By positive act of ownership extending over a sufficient length of time.
(d) By act of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.”
Establishment of one of the five ways is sufficient proof of ownership. See CHUKWU V. DIALA (1999) 6 NWLR (PT. 608) 674; ADESANYA V. ADEROWNMU (2000) 6 SC (PT. 11) 18; NKADO V. OBAINO (1997) 5 NWLR (PT. 503) 31 and AYOOLA V. ODOFIN (1984) 11 SC 120.
The Respondent relied mainly on his document of title in proof of his root of title and ownership of the land. Hence he tendered the Certificate of Occupancy granted to him by the State Government in 1987. This was not disputed by the Appellant. Rather his stance is that as a deemed holder of a right of occupancy before the advent of the Land Use Act, his right prevails over that of the Respondent. He also relied on a document of title, that is Exhibit I which agreement he admitted to have been backdated personally by him and failed to adduce any cogent evidence as to when the agreement was actually made in order to ascertain his claim as an existing holder of title to the land. He also failed to call Aloysius Idye or his successor in title to give evidence in support of his claim to the land. The evidence of DW2 and DW3 did not also help his case.
I therefore agree with the finding of the lower Court that he had not established his root of title to the land by credible evidence as to entitle him to be deemed as a holder of right of occupancy over the land in dispute.
It is trite that a Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land concerned. It also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy. See EZENNAH v. ATTA (2004) ALL FWLR (PT. 202) 1358; MADU V. MADU (2002) 13 NWLR (PT. 784) 286; ASZUWA V. OJO (1999) 13 NWLR (PT. 784) 286.
In the instant case there is no evidence available to rebut the presumption that the Respondent is the owner of the land in dispute in the absence of proof that the Appellant is a deemed owner of a right of occupancy over the said land.
Accordingly the issue is also resolved against the Appellant.
Issue 4,relates to whether the lower court properly evaluated and weighed the evidence before it arrived at its decision or not. This issue has been adequately addressed while considering issue three and to venture into it will constitute undue repetition and super-fluidity. Having earlier on assessed and agreed with the finding of facts and evaluation of evidence by the lower Court. On the whole I hold that this appeal is undeserving of any merit. Accordingly, it is hereby dismissed. The judgment of the High Court of Justice, Makurdi, Benue State delivered by Hon. Justice I. Hwande C.J. on the 28th day of May 2009 is hereby affirmed.
Parties to bear their costs.
ADZIRA GANA MSHELIA, J.C.A: I have had the privilege of reading in draft the leading judgment of my learned brother Oseji, J.C.A just delivered. I agree with the reasoning and conclusion arrived thereat. My learned brother has adequately treated the issues raised for determination in this appeal. I only wish to add few words of mine for the purpose of emphasis.
The position of the law is that the Court of Appeal should not disturb a finding of fact unless that court is satisfied that such finding is unsound. See Ebba V. Ogodo (1984) 1 SCNLR 372 and Okpuruwa V. Okpokam (1988) 4 NWLR (Pt. 90) 554. In the instant case I agree with the finding of the lower court that the appellant had not established his root of title to the land in dispute by credible evidence as to entitle him to be deemed as a holder of right of occupancy over the land in dispute. No evidence has been adduced by the appellant to rebut the presumption that the respondent is the owner of the land in dispute. Since the decision of the court below is not perverse, this court must accord to the finding of fact by the trial court the greatest weight and due respect, and not disturb same.
For this reason and the fuller reasons, stated in the lead judgment I too would dismiss the appeal as devoid of merit. I abide by the consequential orders made therein, inclusive of costs.
MOHAMMED A. DANJUMA, J.C.A: My Lord Samuel C. Oseji, JCA had succinctly captured all the issues raised in this appeal and has with clarity of thought resolved all the issues against the Appellant and in favour of the Respondent.
I have read the leading judgment in its draft form and agree that this appeal has no merit whatsoever.
Appeal must be dismissed.
The judgment of Hon. Justice I. Hwande, C.J in suit No. MHC/117/2002 which was delivered on 28th day of May 2009 is hereby sustained and confirmed.
Appearances
Terna AtimeFor Appellant
AND
V.T. UjiFor Respondent
