SHUA’IBU BOBBO HAMID v. ALFRED K. HAMADU (2013)

SHUA’IBU BOBBO HAMID v. ALFRED K. HAMADU

(2013)LCN/6436(CA)

In The Court of Appeal of Nigeria

On Monday, the 22nd day of July, 2013

CA/J/275/2009

 RATIO

WAYS OF PROVING LAND AQUIRED THROUGH GRANT, SETTLEMENT, SALE OR CONQUEST

WHETHER A PLAINTIFF MAY RELY ON ACTS OF LONG POSSESSION TO OBTAIN A DECLARATION OF TITLE

JUSTICES

SOTONYE DENTON WEST (PJ) Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

IGWE IGNATIUS AGUBE Justice of The Court of Appeal of Nigeria

Between

SHUA’IBU BOBBO HAMID Appellant(s)

AND

ALFRED K. HAMADU Respondent(s)

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Hon. Justice A, Mammadi of Adamawa State High Court of Justice delivered on the 5th day of February, 2009. The Respondent was the Plaintiff at the lower court who had commenced a suit against the Defendant who is here in the Appellant and claimed as follows in the court below:-

1. A declaration of title to all that piece of land lying and situate at Vinikilang granted under certificate of customary Right of occupancy SLG No. 000048 dated 18th day of September, 1981.

2. An order of perpetual injunction restraining the Defendant either by himself or through his representative, agents or anyone whosoever claiming to act or under his authority from trespassing or doing any further acts on the said piece of land which are inimical to the Plaintiffs lawful title to the said piece of land.

3. The cost of the suit, See Page 2 – 4 of the records of appeal.

The parties filed and exchanged their pleadings and the matter went to trial. At the end of the trial, the trial court found for the Respondent herein declaring title to him, hence this appeal.
The Appellant in his brief of argument dated 18th February, 2009 and filed on 13th December, 2010 but deemed filed on 11th May, 2011 formulated two issues for determination by this honourable court and the issues are:

1. Whether the learned trial Judge was right in granting declaration of title in favour of the Respondent when the Respondent did not establish the root of title of the village Head Vinikilang who allegedly granted the land to the Respondent. (Ground 2)

2. Whether the learned trial Judge was right in not dismissing the Respondent’s claim based on the evidence before him particularly after rejecting Exhibit “2”, (the Respondent’s Customary Certificate of Occupancy) (Ground 1 – 5).

On the other hand, the Respondent, in his brief of argument dated 10th December, 2010 and filed on 11th May, 2011 distilled only one issue for determination by the honourable court to wit:

“Whether from the totality of the evidence before the trial High Court the Honourable trial judge was wrong to found for the respondent?

In the determination of this appeal, the issues as formulated by the Appellant will be adopted for being encompassing and embracing. However, the arguments of the learned counsel for Appellant will be considered jointly for appealing to one basic point, i.e. whether from the totality of the evidence before the trial High Court, the Honourable trial Judge was wrong to have found for the Respondent’s Counsel and the two issues adopted in this appeal will be resolved separately for clarity and analytical purposes.

1. Whether the learned trial judge was right in granting declaration of title and injunction in favour of the Respondent when the Respondent did not establish the root of the title of the village Head of Vinikilang, who allegedly granted the land to the Respondent.

2. Whether the learned trial judge was right in not dismissing the Respondent’s claim based on the evidence before him particularly after rejecting Exhibit “2”, the respondent’s Customary Certificate of Occupancy.

The Appellants Counsel, Yakubu Ahmadu Esq. submitted that the Respondent’s claim for declaration of title to the disputed land was based on a grant made to him by the village Head of Vinikilang. Paragraph 4 of the respondent statement of claim as found at page 5 of the record of appeal was referred to.
It was argued that for the respondent to succeed on this averment the title of the village Head must be proved, otherwise it is fatal to the respondent’s case. The cases of Okorie Echi & ORS (2000) 5 SCNJ 155 at 157, Ukaegbu v. Ololo (2009) ALL FWLR (Pt 466) 1852. Prince Ngbene v. Chuke Igbo (2000) 2 & 3 SCNJ 136. Ekpechi v. Owhonda (2003) 9 -11 SCNJ ratio 5 were referred to.
The court was urged to resolve this issue in favour of the Appellant.

On issue two (2). It was submitted that when the respondent testified he alleged that it was the “Ward Head” Mallam Saba who gave him the land contrary to his pleading that it was the village head that gave him the land and that to further underscore the fact that the “Village Head” and the “Ward Head” cannot be the same, the Respondent under cross-examination at page 20 of the record said as follows in lines 14 – 17.

“The ward head is under the authority of the village head. I do not know the village head at the time I was given the land by the ward head, I did no see the land with the village head of Vinikilang”. Pages 22, 24, 34 were referred to.
It was further submitted that the trial Judge appeared to have been swayed by what he regards as evidence of long possession from his decision found at page 54 of the record thus:

“However from the facts herein, Plaintiff has shown herein that Exhibit “1” was given to him by the ward head of the Vinikilang and since then he has been in possession and occupation of the said land for a period ranging from the year 1976 until the year 1998 when the Defendant through the instrumentality of the Ubandoma started interfering with the land. From the evidence of the witnesses, I cannot wish away the long possession of the which the Plaintiff examine the land before the district head gave to the Defendant”.

The learned Counsel referred to Diocese of Aba v. Nkume 2002 2 SCNJ 12, Yekini Adedokun Oyadore v. Chief Olajire Keji 2005 123 LRCN 17.
It was further submitted that in his Judgment at page 54 of the record, it is clear that what the trial Judge considered as relevant to the issue of title before him was the allocation of land by the local Government. Further that the only reason that the trial Judge gave for rejecting the case put forward by the Appellant is the view he held that it is either the state or local government that has the right to allocate land.
We were therefore urged to allow the appeal.

On his own part, the Respondent’s Counsel M. B. Sawa Esq. submitted that the Respondent as at 1975 at the time he acquired the land, it was the Land Tenure Law 1962 that was in force in Northern Nigeria and applicable to the disputed land, thus a village/ward head representing a native/local authority could give land. Further that by the time the Respondent acquired Exhibit “2” (Certificate of Occupancy) it was the Land Use Act which was applicable throughout the Federation and that land has been vested in the various tiers of Government. It would thus be erroneous to hold that despite Exhibit “2”, the Respondent must prove root of title to the original founder/owner of the land as the Song Local Government which was vested with requisite powers has granted him title to the land for 99 years effective from 18th September, 1981. Page 29 lines 27 – 32, page 30 lines 11 – 14 were referred to.
It was further submitted that the Court of Appeal is en-powered to re-evaluate any evidence not properly evaluated by the trial court and this court was urged to do so.
The case of Sule Anyegwu & 1 ORS v. Aidoko Onuuche (2009) 1- 2 MJSC 75 at 78 ratio 2 was relied upon.
On argument by the Appellant that the respondent did not satisfactorily discharge the onus on him to fully prove the original root of title to the land, it was submitted that the action of whoever issued the Exhibit 1 to the respondent was approved by the then Ubandoma (District Head) of Girei in 1975 culminating in the lawful and valid issuance of Exhibit 2 to the respondent.
Also, it was further argued that the trial court having admitted Exhibit 1 without objection, no further onus lay on the respondent to prove a further root of title. Olatunji v. Adisa (1995) 28 LRCN 295 at 297 ratio 3, Buramol v. Bamgbose (1989) SCNJ 36 at 37 ratio 7, Anafakwa v. Ogbuokuhi (1994) 17 LRCN 28 at 31 ratio 2 were referred to. This court was urged to dismiss the appeal.

RESOLUTION ISSUE NO 1

1. Whether the learned trial judge was right in granting declaration of title and injunction in favour of the Respondent when the respondent did not establish the root of title of the village Head Vinikilang who allegedly granted the land to the Respondent.

In paragraph 4 of the Respondent’s Statement of Claim he pleaded as follows:

“Plaintiff avers that the said land was allocated to him by the village Head of Vinikilang Mallam Saba in 1976 and that thereafter he duly applied to the then Song Local Government for a Certificate of Customary Right of Occupancy which approved his application and issued him with a Certificate of Customary Right of Occupancy No. SLG/oooo48 dated 18th September, 1981.
Plaintiff hereby pleads the said Certificate of Occupancy No. SLG/000048 dated 18th September, 1981 with all other documents precedent to the issuing of same and shall found and rely on them at the trial. See page 5 of the record”.

The Appellant on the other hand, pleaded in paragraph 4 of his statement of defence as follows:

“The Defendant is not in position to admit or deny that a Song Local Government Customary Certificate of Occupancy was issued to the Plaintiff and put the Plaintiff to the strictest proof. The Defendant, however, avers that the village Head had no authority to allocate the land to the Plaintiff and any subsequent grant of same by the local Government is null and void and of no effect” see page 9 of the Record of Appeal.

See page 9 of the record of appeal. Looking at the pleadings as above, it is quite clear that the respondent’s claim for the declaration of title and injunction to the land is based on a grant made to him by Village Head of Vinikilang. The Appellant on the other had attacked the Respondent’s root of title by contending that the village Head had no such authority.
With the state of the pleading, the respondent in order to succeed must plead and prove that he derived his title from the village head of Vinikilang but he must also establish how the village head of Vinikilang derived his own title. The only exception to this firmly established principle of law is if a Defendant has admitted the root of title of the Plaintiff or if both the plaintiff and the defendant have traced their root of title to the same source.
In Ukaegbu V. Ololo (2009) ALL FWLR (Pt.466) learned jurist, Ogbuagu JSC (as he then was) reiterating the need for Plaintiff to plead and prove the root of title of a Plaintiff who seeks declaration of title to a land had this to say at page 1872 – 1873, thus:-
“If therefore, Egbereuri had a surname Agbugbuo, it is not averred how their said land in dispute come to be originally owned by Egbereuri. Was it by inheritance from his father Agbugbuo or if not was it by gift, conquest, sale, grant, deforestation etc or how? If one may ask.
The said land could not have come from the bliss to Egbereuri, I say this because, it is now settled that whose title is denied by either grant, sale conquest or inheritance etc, the pleading should aver facts relating to the founding of the land in dispute, the person or persons who founded the land and exercised original acts of possession just to mention but a few. Thus the pleaded root of title if not established by evidence it will be a futile exercise to go to the issue of possession or acts of ownership. I note that under cross-examination at page 81 of the record PW1 stated the land belong to him and that it is descended on him through Egbererui. I repeat there is no evidence how the land came to be owned originally by Egbererui or how it was founded by him.”
See further Ngbene v. Chike Igbo (2000) 2 & 3 SCNJ 136, Oyadiji v. Olaniyi (2005) 5 NWLR (pt.919) 651, Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) Page 393, Ogunleye v. Oni (1990) 2 NWLR (pt. 135) Page 245, Adejumo v. Alesinloye (2000) 6 NWLR (Pt. 660) page 177, Ekpechi v. Owhonda (2003) 9 – 11 SCNJ 1 ratio 5 on page 4.

As I stated earlier, where the averment of the Respondent claiming that the land was given or allocated to him by the village head of Vinikilang in his statement of claim and how the Appellant vehemently denied the right of the said village head to allocate or give out the land to the Respondent, this in my humble view and based on legal authorities that the court below ought to have dismissed the Respondent’s case since the Respondent did not plead or nor give evidence on how the village head derived his own title. See Ukaegbu v. Ololo (Supra).
The Appellant’s however addressed the court below on this failure on the part of the respondent but same was not acted upon by the lower court. See page 37 – 38 of the record of appeal.
It is a matter of trite law that for a party or indeed a Plaintiff to sue for a declaration of title to a piece of land, the onus is on the plaintiff to prove all or either prove the following five cardinal ways of proof of title to ownership of land namely.
a. By traditional evidence.
b. By documents of title.
c. By various Acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership.
d. By Acts of long enjoyment and possession of the land.
e. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would, in addition, be the owner of the disputed land. In a plethora of cases, too numerous, the apex Court had laid down these proofs and the proof of title to land in these various cases have been so expatiated by the courts in a host of cases like this locus classicus case of Idundun & One v. Okumagba & Ors. (1976) 9-10 SC, page 227 at 248. See also Ayoola v. Iboe (1998) 7 NWLR (Pt. 558) 354, Ewo v. Ani (2004) 17 NSCQR, Adesanya v. Aderounmu (2006) 6 SC (Part. 11) 18.
However the law is that one or all of the five ways is sufficient to establish the proof of ownership to a land. The question now is; did the Respondent at the trial court discharge this onus sufficiently to entitle him to a declaration of title to the land in dispute that is the piece of land lying and situate at Vinikilang granted under the certificate of customary right of Occupancy SLG NO. 000048 dated 18th September, 1981. My answer to this is indeed in the negative.
In view of the foregoing, issue one is hereby resolved in favour of Appellant.

RESOLUTION OF ISSUE TWO

Whether the learned trial Judge was right in not dismissing the Respondent’s claim based on the evidence before him particularly after rejecting Exhibit “2”, the Respondent’s Customary Certificate of Occupancy.

The Respondent in paragraph 4 of the statement of claim alleged that, it was the village head of Vinikilang that allocated the land to him. The Appellant averred that the village head had no authority to allocate the land to the respondent. The Appellant averred that the land in dispute was part of the areas conquered by Modibbo Adamawa after wagging a Jihad and that the land in dispute thereafter belonged to the Lamido and the Ubandoma the district head of Girei who allocated the land to him with the relevant documents. See page 20 lines 14 – 17 of the record of appeal.
The PW2 in the evidence in Chief at page 22 of the record said inter alia:

Adamu asked me to stay free on the land. Later as after a short while, Ubandoam Gurei (late) came in the evening. He came with Shau’ibu Bobbo. Ubandoma inspected the land and left without saying anything. After sometimes Shau’ibu Bobbo came and asked us who gave us the land. I told him that the Jakan Jauro gave me the land. He left. I am still on the land. I have been paying rent. I am paying to Shau’ibu Bobbo because the Ubandoma came and instructed us to pay rent to Alhaji Shau’ibu Bobbo”

Furthermore, PW3 in his evidence at page 24 of the record of appeal inter-alia said:

“Later the district Head of Girei invited the Plaintiff and the defendant and I was present. The district Head collected their documents pertaining to the land. He checked and later returned the documents to the parties. He said that the land belongs to S.B. Hamid”

Under cross-examination contained at page 24 of the record of appeal, PW3 said:

“Ubandoma is the district Head of Girei, Vinikilang is a village within Girei”

The Appellant on his part testified as DW1, tendered Exhibit 3 and 3A being an application made to the District Head of Girei for the land and subsequently obtained a certificate of occupancy (Exhibit 4 and 4A) and Exhibit 5, Receipt of ground rent paid to the local Government).
DW2, a law officer in Girei local government testified inter-alia at page 34 of the record of appeal thus:

“To issue a certificate the applicant will bring his letter from the district Head of Girei confirming the land belongs to the Applicant by signing and stamping, I know the Defendant herein”

Further when, DW2 was shown Exhibit 3 and 3A he confirmed thus:

“This is a stamp of Ubandoma District Head of Girei and signature. We have to confirm because he is in charge. The Lamido Adamawa has relationship with the land. His fore fathers had Jihad and anywhere he conquered that area is under his control and this piece of land was one of his places. The Ubandoma is appointed by the Lamido”.

The evidence of DW2 a Law officer in Girei Local Government is so cogent and direct to the piece of land in dispute and he connected the Appellant to the land when he said an Applicant for issue of a certificate, will bring his letter from the District Head of Girei confirming the land belongs to the Applicant by signing and stamping, and this the Appellant obviously did. The Appellant from record seem to derive his title from the Ubandoma who is appointed by the Lamido Adamawa to look after the conquered land of which the land in dispute is one.
The trial Judge with due respect to him appeared to have been swayed by what he regarded as evidence of long possession by the Respondent when he held at page 54 of the record as follows:

“However, from the facts herein, plaintiff has shown herein that Exhibit 1 was given to him by the ward head of Vinikilang and that since then he has been in possession and occupation of the said land for a period ranging from the year 1976 until the year 1998 when the Defendant through the instrumentality of the Ubandoma started interfering with the land. From the evidence of the witnesses, I cannot wish away the long possession of the land which the plaintiff exercises over this land before the district head gave same to the Defendant”.

There is no doubt that possession merely gives presumption of ownership and does no more than that. It is however a respectable presumption. In resolving issue 1, I had pointed out that the Respondent failed to plead and prove the root of title of the village head from whom he derived his title from. The Respondent having failed to plead nor prove the root of title of the village head from whom he derived his title and only seem to hang on to being in possession to the land without more does not satisfy the provisions of section 146 of the Evidence Act. At best, his claim to possession in a claim of declaration of title merely raises a presumption of ownership which constitutes a mere defence in the disputed land without proofs of good traditional and good title including Acts of ownership.
See Section 146 of the Evidence Act, and also Romaine v. Romaine (1992) 5 SCNJ, 25 at page 30.

The Respondent had produced a certificate of occupancy in respect of the disputed land which the court in its wisdom has rejected. Again it has been held in a plethora of cases that production of a deed of conveyance or documents of title does not automatically entitle a party to a claim in declaration indeed it is settled law that a PLT who claims a declaration of title to land has the burden of setting out clearly by who and how the land was founded and the names of persons who had exercised Acts of ownership on the land before it devolved upon him.
See Olukotintin v. Sarumi (2002) 13 NWLR Pt. 784, page 307, Majekodunmi v. Abina (2002) 3 NWLR page 55 at 720, Wzukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227, Udeze v. Chidebe (1990) 1 NWLR (pt. 125) 141.

In Romaine v. Romaine supra, the Supreme Court inter-alia stated when reliance can be placed on an instrument of title to land and when the courts can accept or admit such documents which must pass or scale the following tests namely:-
1. Whether the document is genuine and valid;
2. Whether it has been duly executed, stamped and registered;
3. Whether the grantor had the authority and capacity to make the grant;
4. Whether in fact the grantor had in fact what he purported to grant; and
5. Whether it has the effect claimed by the holder of the instrument.
It seems the document sought to be tendered by the Respondent which was rejected by the trial court did not in way meet these stipulations or requirements as stated in the above five tests by the Apex Court, hence the rejection of same by the lower court.
The Respondent’s Counsel, Mr. Sawa has called on this court to admit the rejected document by the invocation of the powers of this court so to do, this court would not be in a position to just admit the document without satisfying the above five tests in Romaine v. Romaine (supra) without reopening and calling witness in respect thereof, which would in effect amount to rehearing the matter afresh.
Consequently, if the respondent failed to prove his root of title, his claim for declaration of title, must on that score fail and the learned trial judge ought not to have considered the issue of the respondent’s alleged long possession.

In Diocese of Aba v. Nkume (2002) 1 SCNJ 12 ratio 3 Kutigi JSC (as he then was held thus).
“It is settled law that where a party’s root of title is pleaded as for example, a grant, a sole or conquest etc that root of title has to be established and any consequential acts following therefrom cannot properly qualify as acts of ownership”.
As in Yekini Adedokun Oyadare v. Chief Oljire Keji (2005) 123 LRCN 17 ratio 10 at page 20 specifically at 25, the apex court held thus”
“It is settled by the chain of authorities that where the pleaded title to land has not been proved as in this case, it will be unnecessary to consider acts of ownership and possession which acts are no longer acts of possession but acts of trespass”.
The point, I have been trying to make is that a Plaintiff’s root of title ought to be proved before acts of ownership could be considered by the trial court. See Obioha v. Duru (1994) 8 NWLR Pt 365 P. 631 where the Supreme Court per Onu JSC (as he then was) at page 645 said:
“One cannot easily talk of ownership without first establishing that ownership where a party’s root of title is pleaded. That root of title has to be established first and any consequential act following there upon can then be properly qualified as acts of ownership”.
See also Ndukube v. Izundu (2007), NWLR pt.1016 p. 432 at 448. Ngene v. Igbo (2000) 4 NWLR Pt. 651 p. 131 at 146.
On the strength of the above authority, the learned Judge had no business, with due respect, considering the issue of alleged acts of ownership or long possession by the respondent.

It is also settled law that where a plaintiff claims declaration of title, as distinct from claim in trespass, he cannot, rely on acts of long possession to obtain a declaration of title where the Defendant had proved a good title. Acts of long possession cannot be used by a Plaintiff to established declaration title. It is available to a defendant as a weapon of defence. Long possession can only be used as a shield and not a sword. See Idundun v. Ikumagba (1976) vol. 1 NMLR 200 where it was held at page 211 thus:
“Fourthly, acts of long possession and enjoyment of the land may also be premature evidence of ownership of the particular piece or quantity of land with reference to which acts are done. (See S.45 of the Evidence Act Cap 62). Such acts of long possession in a claim of declaration of title (as distinct from a claim for trespass) are purely a weapon more of defence than of offence, moreover under S.145 of the Evidence Act, may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title”.
It is the law that while a Defendant may use long possession as a defence to a claim for declaration of title, a Plaintiff cannot use long possession to form declaration of title. See Anazodo Nwosu v. Chukwu Manjo Udeaja (1990) 1 SCNJ 1 252. Therefore, the issue of long possession which the learned trial Judge relied on was irrelevant in the circumstances of this appeal.
Further down, from the claim of the respondent and the evidence led by him and the submission of his counsel, it was obvious that the respondent based his claim for declaration of title to exhibit 2, the certificate of occupancy, allegedly issued to him by Song Local Government.
For avoidance of doubt, the respondent in paragraph 18(1) of his statement of claim asked for a declaration of title to all that piece of land lying and situate at Vinikilang measuring about 148 metres x 13 metres covered by certificate of occupancy No. SLG/000048 of 18th September, 1981″.
The respondent tendered the certificate a Exhibit 2 and while testifying as PW2 on page 20 of the record under cross-examination he said:

“I want the court to declare title to me based on the certificate Exhibit 2”

In his own address, counsel to the respondent at 41 of the record submitted as follows:

“Exhibit 2 tendered by the plaintiff is a customary certificate of occupancy issued by song Local Government dated 18/9/81. Exhibit 4A tendered by the Defendant is also a Customary Certificate of Occupancy issued by the Girei Local Government dated 14/5/99. There is no dispute between the parties as to the identity of the land, it is without doubt that these Exhibits are what they relied on as giving their title”.

In his judgment at page 54, it is abundantly clear, that what the learned trial Judge considered as relevant to the issue of title between the respondent and the Appellant is the allocation of the land by the local Government. The only reason the learned trial Judge gave for rejecting the case put forward by the Appellant is the view he held that it is either the state or local government that has the right to allocate land.
The question which arises is if the Respondent based his declaration of title on Exhibit 2 and if the respondent counsel emphatically made it clear that it was Exhibit 2 that the Respondent was relying on for title and if the learned trial Judge was of the view that by virtue of the Land Use Act, it is the local government that could have conferred title to any of the parties before him, where is the evidence on which the learned trial Judge relied on, in declaring title in favour of the respondent after specifically rejecting Exhibit 2 tendered by the respondent? The answer in my view is none.
I must state at this point that acceptance or rejection of a document is within the discretion of the court and a document when rejected can no longer form part of (exhibit’s evidence) upon which the court can base its decision. See Harrison Odiawa v. FRN (200) LPER v. Muhael Adedapo Omisade and ORS (1994) NMLR 67, (1964), ALL NLR 47, Elijah Okoh v. The State (197) 1 NMLR 140, Siesmgraph Service (Nigeria) Ltd v. Ogbdemi (1979) 1 NMLR 290, John Wilberforce Bamiro v. SCOA (1941) 7 WACA 150.

From the foregoing and as formulated by the Respondent in his issue for determination, it is the view of this court that from the totality of the evidence before the trial court, the honourable trial Judge was wrong to have found for the Respondent, for the scenario in this appeal is that the two parties, that is the Appellant and Respondent are both brandishing Certificates of Occupancy in support of claim to the same piece of land. Whilst one certificate was absolutely rejected by the court the other certificate was admitted. Shun of all embellishments the party whose certificate of occupancy was admitted in respect of the disputed property should surely be declared as the owner of the property. Appellant Customary Right of Occupancy granted by Geiri Local Government under the Land Use Act, 1978 in favour of the Appellant was admitted as Exhibit 4A. Where a Local Government grants a Customary Right of Occupancy over a parcel of land by virtue of Land Use Act under Section 6(1) (a) and (b) of the Act, such Local Government has to be satisfied that such a person is one lawfully using or occupying that particular parcel of land in accordance with Customary Law.
Further by virtue of section 52 of the Land Use Act, the presumption is that the area covered by the Certificate of Occupancy is definite, specific and ascertainable.
In this appeal, there is no doubt the land in dispute is clears, definite, specific and ascertained by both parties as the same land located in Gieri Local Government, and whereas that same Local Government has issued a customary Right of occupancy to the Appellant whose witness DW2 a Law officer with the Local Government had testified before the trial court to that effect. By virtue of section 52 of the Land use Act, it is presumed that the area of land covered by the certificate of occupancy must be definite and ascertainable and be conclusive of the area of land covered by the certificate which is being relied upon, if same is valid as testified by DW2. See Dabup v. Kolo (1993) 12 SC NJ.

However, customary certificate of occupancy is only prima facie Evidence of title to the land, it covers and could be subject to rebuttability. See Madu Vs. Madu (2008) 2-3 SC 109 at 131-140. See further Dzungwe v. Gbishe & Anor (1985) 2 NWLR (pt. 8) 528.
Also in Adesoye V. Olowolagba (1996) 172 SC, NJ 95 where it was decided inter-alia that the presumed possession of Plaintiff’s Statutory Right of Occupancy over a piece of land around Allen Avenue in Lagos was successfully rebutted by the Defendant who had no Certificate of Occupancy, but whose title was firmly rooted in traditional history of the land.
There is no doubt that the Appellant’s version of this whole episode is firmly rooted in the traditional history and he was able significantly to trace his association with the land to the original owners of the land who he claimed gave him his title to the land, and there is no evidence of rebuttal of that fact before the trial court.
In this circumstances, I find it difficult to align myself with the Respondent in his assertion to the land on mere possession as laid down in the Judgment of the trial Judge.
Thus, based on the evidence before the trial Judge and having rejected, the documentary evidence in which the Respondent relied on, there was no evidence on which the trial Judge could have found for the Respondent.
I observed that in paragraph 1.12 of the Appellant’s Reply brief of argument, he urged this Court as follows:

“On the whole we urge this honourable court to discountenance the Appellant’s submission in his brief of argument and allow the Appellant’s Appeal”

This court applying the slip Rule and invoking the provisions of Section 16 of Court of Appeals Rules, 2011 would in the interest of justice rephrase same as:-

“On the whole we urge this honourable court to discountenance the Respondent’s submission in his brief of argument and allow the Appellant’s Appeal”

I therefore, resolve this issue in favour of the Appellant, as the appeal is meritorious and accordingly the appeal is hereby allowed.
On the whole, this appeal succeeds, the Judgment of the trial court, delivered on the 5th day of February, 2009 is hereby set aside.
In the exercise of my equitable discretion, there would be no order as to costs as both parties believed in their case and fought vehemently to put same across to this court.

JUMMAI HANNATU SANKEY J.C.A.: I read in draft the lead Judgment of my learned bother, Denton West, J.C.A., and I entirely agree with his reasoning and conclusion that there is merit in the Appeal, which should therefore be allowed.
By way of emphasis, I wish to re-state the principles of law in cases of declaration of land relevant to the facts of the instant case. The Respondent, as Plaintiff, claimed the land was allocated/granted to him by the Village Head of Vinikilang, Mallam Saba, sometime in 1976, after which he applied and was granted a certificate of occupancy by the Song Local Government Council. He was however unable to prove how the Village Head himself acquired the land; in other words the root of title or the foundation of the land. The Appellant’s case on the other hand is that the said Village Head had no authority to so allocate land to the Respondent, as the land in question was part of the land belonging to the Lamido of Adamawa by conquest, and same was duly allocated to him by the Ubandoma (District Head) of Girei, after which he also subsequently acquired title documents from the Girei Local Government Council. Whereas the certificate of occupancy of the Respondent was rejected by the learned trial Judge, but marked Exhibit 2; the certificate of occupancy of the Appellant was admitted in evidence and marked Exhibit 4A. The learned trial Judge however oddly, did a summersault, and relied on the Exhibit 2 he had rejected, as well as long possession, to declare title in favour of the Respondent.

Where a plaintiff’s existence on a land acquired by him either through grant, settlement, sale or conquest as the case may be is challenged, he has an option of five ways under the law to prove such title as follows:
(a) By traditional evidence;
(b) By production of documents of title duly authenticated or executed;
(c) By acts of ownership over a sufficient length of time, numerous and positive enough as to warrant the inference of a true ownership;
(d) By acts of long possession and enjoyment;
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
See Fasoro v Beyioko (1988) NWLR (pt. 76) 263; Amajideogu v Onanaku (1988) 2 NWLR (pt. 78) 614.
In proving his title to land, it will suffice for a plaintiff to prove only one of the above five ways of proving title to land by cogent, satisfactory and conclusive evidence.
Both parties relied on evidence of grants, as well as documents of title, in establishing the ownership of the land in dispute. Such a plaintiff’s evidence, where it is found to be cogent, not conflicting with that of the Defendant, and where accepted by the lower Court, can support a claim for a declaration of title. Thus, the onus lay on the Respondent, (as Plaintiff), to show how his title was derived, and the evidence given needed to be consistent, coherent and convincing. See Onibudo V. Akilu (1982) SC 60.

By way of emphasis, a plaintiff, relying on the evidence of a grant, must plead the root of title of the person who granted him the land by showing how he came to own and possess the land he eventually granted to him. The entire case was fought on who was the original owner, the customary certificates of ownership from two different Local Government Councils acquired by each of the parties subsequent upon the grants, and long possession by the Respondent. The certificate of occupancy of the Respondent was, however, rejected by the learned trial Judge. Yet curiously, he relied on it in his evaluation of the evidence before him and awarding Judgment to the Respondent.
Where in a claim for declaration of title, the evidence is unsatisfactory, the Judgment should be in favour of the defendant on the ground that it is the plaintiff who seeks the relief but who has failed to prove that he is entitled to what he claims. If a defendant is able to adduce evidence oral or documentary which has the effect of discrediting the plaintiff’s case, such a declaration, sought by a plaintiff, would be refused, See Nwokido v Okanu (2010) 1 SCNJ 167 @ 199; Ekun V Baruwa (1996) 2 ANLR 211.
In the instant case, the Respondent failed to prove that the said Village Head of Vinikilang had title to pass on to him through the grant of the land in dispute in 1976. The law is that, you cannot put something on nothing and expect it to stand. It will collapse. So also, if the Village Head of Vinikilang had no title to pass, then he could not have passed any title to the land in dispute to the Respondent. It is trite that in an action for declaration of title to land, the onus is on the plaintiff to establish his title on the strength of his own case, and not to rely on the weakness of the defendant’s case. See Dim V Enemuo (2009) 4 SCNJ 199; Onwubuariri V Igboasoiyi (2011) 2 SCNJ 72. It is for the above reasons, and the more detailed reasons contained in the lead Judgment of Denton West, J.C.A., that I too find merit in the Appeal. I abide by the consequential orders contained therein.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege of reading in draft, the judgment of my learned brother Hon. Justice S. Denton – West JCA, just delivered. I agree with his reasoning and conclusion that from the preponderance of the evidence adduced by the Parties and their witnesses including documentary exhibits, the Appellant established superior title to the land in dispute having traced his root of title to the original owners as laid down in a plethora of cases. See the celebrated cases of Idundun v. Okumagba (1976) 10 NSCC 445 at 455; Ogboni v. Ojah (1996) 6 SCNJ 140; Onwugbufor v. Okoye (1996) 1 SCNJ 1 at 20-21; Dioha v. Ohite (2005) ALL FWLR (Pt.291) 712 at 721 Paras. A-C; Ndukube v. Izundu (2007) 4 NWLR (Pt.1016) 432 at 448 and Ngene v. Igbo (2000) 4 NWLR (Pt.651) 131 at 146, ably cited by my Lord in the lead Judgment.
It is for this reason and the fuller reasons advanced by my learned brother in the lead Judgment that I also shall allow the Appeal for being meritorious and accordingly set aside the Judgment of the learned trial Judge delivered on the 5th day of February, 2009. I abide by the consequential orders as contained in the lead judgment, accordingly.

Appearances

Yakubu AhmaduFor Appellant

AND

M. B. SawaFor Respondent