MR. MATHEW O. ONOBA v. ABUJA BUILDING PRODUCTS LIMITED & ORS
(2014) LCN/6977(CA)
RATIO
LAND LAW: WHERE A PARTY ADMITS THE TITLE TO CERTAIN PIECE OF LAND TO HAVE BEEN ORIGINALLY VESTED IN A RIVAL CLAIMANT, THEN THE ONUS IS ON THE SECOND CLAIMANT TO SHOW HOW THE ORIGINAL PARTY/CLAIMANT WAS DIVESTED OF SUCH TITLE.
“…It is a settled principle, that where a trial is conducted on the basis of pleadings, a judgment of the trial Court shall be based on issues raised or joined in such pleadings. Legal evidence given, which is not referable to the pleadings should not be admitted because it goes to no issue, and where admitted inadvertently, should be ignored and expunged from the record for the purpose of making findings of fact. Along with this settled principle is that which affects a rival party who has admitted the ownership by the other party of a property claimed; effect should be given to such admission not only in regard to the admitted fact but also its legal consequences; as in this case, the burden of proof shifts from one party to the other.”
In Madu vs. Madu (2008) 2 SCNJ 245 Aderemi, JSC held at page 262 that: “Once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the Certificate of Occupancy is set aside. See Ganikon vs. Ugochukwu Chem Ind. Ltd. (1993) 6 NWLR (Pt. 297) 55. Documents of title are clear evidence of transaction between the parties thereto. See Atunrase & Ors. vs. Philips & Ors. (1996) 1 NWLR (Pt. 427) 637. From the pleadings of the plaintiff/appellant, it is beyond argument that she predicated her case on documents, the most important of which is the Certificate of Occupancy issued by the Federal Capital Territory Development Authority as a result of her documentary application forwarded to the Authority. This Court in its decisions in Osazuwa vs. Ojo (1999) 13 NWLR (Pt. 634) 286; Shogo vs. Adebayo (2000) 14 NWLR (Pt. 686) 121 and Ezeana vs. Atta (2004) 4 NJSC 1, held that a Certificate of Occupancy properly issued as in the instant case where there is no dispute that the document was properly issued by a competent authority raised the presumption that the holder is the owner in exclusive possession of the land. The Certificate 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raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. It should however be noted that the presumption is rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy in which case the Certificate of Occupancy will stand revoked by the Court.”
In Rahimi Sanni vs. Oki & Oki (1971) 1 All NLR 116, the Supreme Court held at page 120 citing Thomas vs. Preston Holder (1946) 12 WACA 78 “where it was laid down that in a claim for title, as in the present case, when one of the parties had established a root of title emanating from agreed original owner, the burden cast upon the other party is substantial and it is difficult if possible at all to find any instances in which that other party can ever obtain a declaration of title.” Per JOSEPH TINE TUR, J.C.A.
WHETHER POWER OF ATTORNEY NEEDS THROUGH A REGISTERED INSTRUMENT MUST BE PROVED
A Power of Attorney being “a document” for it to come within the provisions of Section 2 of the Land Registration Act, Cap.515 (supra), must “affect land” in the manner described in Section 14(1) and (2) of the Land Registration Act, Cap.515 (supra) which reads as follows: “(1) Every State grant executed after the commencement of this Act, and every instrument affecting land the subject matter of a State grant or whereby land is granted by a Nigerian to a non-Nigerian executed after the commencement of this Act shall, so far as it affects a land, be void unless the same is registered within six months from its date (or, in the case of an instrument whereby land is granted by a Nigerian to a non-Nigerian, from the date on which it receives the Minister’s consent) if executed in Nigeria, or twelve months from its date (or, in the case of an instrument whereby land is granted by a Nigerian to a non-Nigerian, from the date on which it receives the Minister’s consent) if executed elsewhere). (2). The registrar may extend the periods whenever he is satisfied that registration has been delayed without default or neglect on the part of the person acquiring the right or interest in the lands in question.”
There is nothing to show that Abuja Building Products Ltd. – the donor, granted a power of Attorney to Chukelad, a non-Nigerian company to require compliance with the provisions of Section 14(1) and (2) of the Land Registration Act (supra). Furthermore, the 1st respondent did not “grant” land to Chukelad Ltd. To “grant land” in this circumstance means to create a right, title or interest in favour of another person which term may include leases, easements, charges or in short, formal transfer of real property to another by way of a Power of Attorney. Therefore, the provisions of Section 14(1) and (2) of Land Registration Act (supra) has no application to the facts of this case.
Furthermore, Section 14(2) of the Act (supra) comes into operation “…on the part of the person acquiring the right or interest in the lands in question.” The power conferred on an attorney to sue may be of a general nature. See Gray vs. Pearson (1870) LR 5 CP 568. It does not matter that the Power is “irrevocable”. For all these reasons Section 15 of the Land Registration Act (supra) could not have been invoked to debar the Power of Attorney from being pleaded or admitted in the lower Court as an exhibit, nor as authority to Chukelad Limited to sue the appellant, the 2nd and 3rd respondents. Per JOSEPH TINE TUR, J.C.A.
