DR. ABDU HO v. MUSTAPHA ABUBAKAR & ORS (2016)

DR. ABDU HO v. MUSTAPHA ABUBAKAR & ORS

(2016)LCN/8589(CA)

In The Court of Appeal of Nigeria

On Friday, the 13th day of May, 2016

CA/K/25/2008

RATIO

PROCEDURE: REPLY BRIEF; ESSENCE OF REPLY BRIEF

A Reply Brief is not for a second bite at the cherry. Indeed, I see no new issue in the argument of the 1st and 2nd Respondents that should necessitate a Reply from the Appellant’s learned senior Counsel. A Reply brief is not for re-argument, rejoinder or adumbration of issues but for addressing new issues raised in the Respondent’s brief, if any. See NITEL PLC V. OCHOLI (2001) FWLR (Pt. 74) 254 AT 267. I have not seen merit to consider the Reply of the Appellant. PER UWANI MUSA ABBA AJI, J.C.A.

LAND LAW: TITLE TO LAND; EFFECT OF A GRANT OF A STATUTORY RIGHT OF OCCUPANCY

This Court had occasion to reason on this thus in OLALEYE V. TRUSTEES OF ECWA (2010) LPELR-4743 (CA):

“Once a person is granted a Statutory Right of Occupancy in and 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… However Section 5 (2) of the Land Use Act does not preclude the Court from setting aside the grant of the statutory right of occupancy in appropriate circumstances such as for instance, when it has been issued in error or has been obtained by fraud.”

See the cases of GANIKON V. UGOCHUKWU CHEM. IND. LTD. (1993) 6 NWLR (PT.297) 55, TENIOLA & ORS V. OLOHUNKUN (1999) 5 NWLR (PT.602) 280, SAUDE V. ABDULLAHI (1989) 1 NWLR (PT.116) 387. Furthermore, In OTUKPO V. JOHN (2012) 7 NWLR (PT. 1299) 357 AT 377, the Supreme Court held that:

“A Certificate of Occupancy is a prima facie evidence of title or possession. It is not a conclusive proof of title to the land it relates to. The mere production of it by a Party does not (ipso facto) by itself, entitle the party to a declaration of title. Consequently, if it is successfully challenged, it can be nullified. Where there is evidence to show that it was wrongly issued or obtained, the Court can nullify it.”

See also CHURCH V. OLOWOSENI (1990) 6 NWLR (PT.158) 514, ADOLE V. GWAR (2008) 11 NWLR (PT.1099) 562 AT 503-618, LABASEBI V. LAGOS METAL IND. LTD. (1973) 1 S.C. 1. Similarly, Per Edozie, J.S.C. in ILONA V, IDANWO (2003) 11 NWLR (PT.830) 53 held:

“Where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid. The appellant’s right of occupancy subsists up to now as it has not been revoked and the wrongful grant to the 1st respondent has no effect whatever on its authenticity.”

See also KARI V. GANARAM 11 (1997) 2 NWLR (PT. 488) 380 AT 401. PER UWANI MUSA ABBA AJI, J.C.A.

LAND LAW: TITLE TO LAND; WAYS OF PROVING TITLE TO LAND

It is well settled in our legal system that proof of title must be established through one of these five ways as follows:- (1) By traditional history or evidence or; (2) By documents of title; (3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership or (4) By acts of long enjoyment and possession of the land and; (5) By proof of possession of adjacent land in circumstances which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute. The burden placed on the plaintiff is to prove at least one of the five ways and not conjunctively. See Per OGUNBIYI, J.S.C. in AJIBULU V. AJAYI (2013) LPELR-21860 (SC).

The same principle was also applied in the cases of IDUNDUN VS. OKUMAGBA (1976) 9-10 SC 223, MOGAJI V. CADBURY LTD. (1985) 2 NWLR (PT.7) 373, ALLI V. ALESINLOYE (2000) 6 NWLR (Pt.40) 117, OLOHUNDE V. ADEYOJU (2000) 10 NWLR (PT.676) 562, ADESANYA v. ADERONMU (2000) 9 NWLR (PT.672) 370.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

DR. ABDU HO Appellant(s)

AND

1. MUSTAPHA ABUBAKAR
2. ALHAJI A.S. DATTIJO
3. GOVERNOR OF KADUNA STATE
4. PERMANENT SECRETARY, BUREAU FOR LANDS AND SURVEY
5. HON. ATTORNEY GENERAL OF KADUNA STATE Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court holden at Kaduna in Suit No.KDH/KAD/668/1999, delivered on 7/11/2006 by Hon. Justice T. Zailani J, now Chief Judge of Kaduna State, wherein the claims of the 1st and 2nd Respondents were granted.

The 1st and 2nd Respondents’ Claims at the lower Court against the Appellant vide a Statement of Claim dated 12/11/1999 and filed on 18/11/99 contained at pages 39-44 of the records were as follows:
1. A DECLARATION that the 1st Plaintiff having being duly and validly allocated the piece of land situate and lying at Plot No. AR 8 Attahiru Road, Malali Kaduna is entitled to right of Occupancy over same as evidenced by the Statutory Right of Occupancy No. KD. 5266 executed by the 1st Defendant on the 22/3/98,
2. A DECLARATION that the 1st defendant or its agents/agencies can only validly revoke the 1st Plaintiff’s right of Occupancy and the title in the said property situate at Plot No. AR.8 Attahiru Road, Malali, Kaduna strictly in accordance with the relevant laws and particularly the Provision of the

Land Use Act (CAP. 202) Laws of the Federation of Nigeria 1990.
3. A DECLARATION that the purported revocation of the 1st Plaintiff’s said Right of Occupancy No. KD. 5266 by the 1st Defendant vide a purported revocation order dated 24/5/99 is ultra vires, unconstitutional and therefore null and void.
4. AN ORDER setting aside the said revocation order dated 24/5/99.
5. A DECLARATION that the non-service of the purported revocation order on the 1st plaintiff renders same null and void.
6. A DECLARATION that the purported re-allocation of the said property situate at Plot No. AR.8 Attahiru Road Malali, Kaduna by the 2nd and Defendants to the 4th Defendant is ultra vires null and void.
7. AN ORDER setting aside the re-allocation of the said property to the 4th Defendant.
8. AN ORDER directing the 1st and 2nd Defendants to effect rectification of files No. KDL. 49756 and NCL.24701 in respect of the said property with a view to streamlining same with the above stated declarations.
9. AN ORDER of injunction in perpetually restraining the Defendants and particularly the 1st, 2nd and 3rd Defendants from further taking steps to perfect the

re-allocation of the said property to the 4th Defendant.
10. AN ORDER of injunction in perpetually restraining 4th Defendant from carrying out any development in the said property.
11. General and special damages against the 4th Defendant in the sum of N500,000 for the unlawful demolition of the Plaintiff’s wall fence on the said property.

After been served, the Appellant counter-claimed vide an amended Statement of Defence dated 7/9/2004 and filed on 22/9/2004 contained at pages 55-60, as follows:
1. A declaration that the 4th defendant has been at all material times to action deemed holder of a statutory right of occupancy over the piece and parcel of land situate at and described as Plot No. AR8 Attahiru Road Malali, Kaduna which has crystallized evidenced by Certificate of occupancy No.029007.
2. A declaration that the plaintiff right of occupancy over the disputed land subsequently correctly revoked, is null and void on the ground that the 4th defendant deemed statutory right of occupancy over the same land was never revoked and same is still valid and subsisting.
?
The 1st Respondent pursuant to his application for allocation of land

in Kaduna State sometime in the year 1997 was duly allocated a parcel of land situate at No. AR.8 Attahiru Road on TPO 418D, Malali Kaduna. The offer letter for the grant of the disputed property to the 1st Respondent was admitted as Exhibit P1 and the Statutory Certificate of Occupancy issued in the name of the 1st Respondent evidencing his title to the disputed property was admitted as Exhibit P2. Sequel to the allocation of the disputed property to the 1st Respondent, he authorized the 2nd Respondent, his uncle, to assist in the erection of a wall fence on the disputed property which was accordingly done by the 2nd Respondent. The 1st Respondent later discovered that the wall fence erected on the disputed property was substantially destroyed and upon enquiry, it turned out that the Appellant who resides in the adjacent property to the disputed property was responsible for the demolition of the wall fence erected, consequent upon which a criminal complaint was lodged against the Appellant at the Malali Division Police Station, Kaduna, for mischief and trespass. The Divisional Police Station, Malali, Kaduna, as part of their investigation after the invitation

extended to the Appellant, demanded clarification as to the status of the disputed property from the 4th Respondent, who by a letter admitted as Exhibit D2 confirmed the title in the disputed property in favour of the 1st Respondent. The Appellant equally by a letter admitted as Exhibit P6 conceded title in the disputed property to the 1st Respondent. Upon the plea of the Appellant, the 1st and 2nd Respondents informed the Divisional Police Officer in Malali, Kaduna, wherein the Appellant was reported, that they were no longer interested in pressing the charges of mischief and trespass against the Appellant and the matter was put to rest.
The 2nd Respondent at the instance of the 1st Respondent built another wall fence on the disputed property; only for the Appellant to demolish same again and when confronted, he informed the 1st and 2nd Respondents that the Certificate of Occupancy issued to the 1st Respondent in relation to the disputed property has been revoked by the 3rd Respondent and a new Certificate of Occupancy in relation to the disputed property has been issued in his name. The above information prompted the 1st Respondent to engage the services

of his solicitors, who discovered that the Certificate of Occupancy issued in favour of the 1st Respondent and admitted as Exhibit P2 has been revoked on the ground that same was issued in error.

The revocation order admitted as Exhibit D1 was not served on the 1st Respondent. It turned out that the Appellant had petitioned the 3rd Respondent and claimed that the property in dispute was acquired by him from DW3, Abdullahi Musa. The 1st Respondent was informed by the Solicitors he engaged to conduct search that his title has been revoked even though he was not served with any revocation notice. Thus, he instituted the action at the trial Court and sought for relief that were substantially granted him.

Dissatisfied with the judgment against him, the Appellant appealed vide an amended Notice of Appeal dated 7/1/2011 and deemed filed on 17/9/2015, with 5 Grounds of appeal reproduced without their particulars:
GROUNDS OF APPEAL:
GROUND ONE:
The learned trial Judge Hon, Zailani J, erred in law when he held in his judgment that the 1st Plaintiff’s property was not properly revoked under the provisions of Section 28 of the Land Use Act in that

no notice of revocation was ever served on the Plaintiff and that the purported revocation was not done for overriding public purpose and by so finding showed a failure to advert to evidence on the record which justified the application of Section 5-(2) of the Land Use Act
GROUND TWO:
The learned trial Judge Hon. Zailani J, further erred in law when he held in his judgment that the Plaintiff had proved all the declarations he sought from the Court when from all parameters available he had failed to prove any.
GROUND THREE:
The learned trial Judge erred in law when he failed to consider the merits of the Appellant’s counter claim when there was ample material for him to have done so and instead he erroneously dismissed same.
GROUND FOUR:
The learned trial Judge erred in law when he failed to uphold Appellant’s counsel’s submission that the withdrawal of the plaintiff’s Certificate of Occupancy Exhibit P1 or its supersession or extinguishment by the 4th defendant?s C-of-O is valid in law by virtue of Section 5-(2) of the Land Use Act and there was no requirement for a formal revocation in the terms of Section 28 of the Land Use

Act.

In accordance with the Rules of this Court, the Appellant filed his amended Brief of argument dated 11/2/2016 but deemed filed on 2/3/2016, settled by J.B. Daudu, SAN, wherein he formulated 2 issues for the determination of the appeal to wit:-
(a) Whether the learned trial Judge Zailani J, did not err in law when he held that the Plaintiff’s claim for declaration of title to the disputed land and other allied reliefs were successful in the face of the relevant provisions of the Land Use Act i.e. Section 5-(2) vis a vis Section 28 when from the facts and circumstances of the whole case, the 4th defendant/appellant’s case ought to have succeeded and the Plaintiff’s case unsuccessful? (ISSUE NO 1) (Grounds 1, 2 and 4 of the Notice of Appeal).
(b) Whether having regard to the ample materials presented by the 4th defendant and the justice of the case, it could still be said that the learned trial judge was correct in dismissing his counter claim? (ISSUE NO 2) (Ground 3 of the Notice of Appeal).

The 1st and 2nd Respondents on the other hand, filed their Brief of argument dated 3/2/2016 and filed on 3/3/2016, settled by O. I. Habeeb, Esq.,

wherein he formulated 2 issues for the determination of this appeal thus:
1. Whether the trial Court was justified in holding that “error in grant” of Right of Occupancy is not a ground for a valid revocation of title within the purview of Section 28 of the Land Use Act?
2. Whether the trial Court was justified in granting the Declaratory Reliefs sought by the 1st and 2nd Respondents and dismissing the counter claim of the Appellant having regard to the evidence adduced?

The Appellant consequently filed a Reply Brief dated 7/3/2016 and filed on 10/3/2016. No Brief was filed by the 3rd to 5th Respondents.

At the hearing of the appeal on 4/4/2016, the Counsel to the Appellant adopted his Brief of argument and prayed this Court to allow the appeal and set aside the judgment of the trial Court while the Counsel to the 1st and 2nd Respondents adopted his Brief and urged the Court to dismiss the appeal.
I shall consider this appeal on the 2 issues formulated by the learned Counsel to the 1st and 2nd Respondents.

ISSUE 1:
Whether the trial Court was justified in holding that “error in grant” of Right of Occupancy is not a ground for a

valid revocation of title within the purview of Section 28 of the Land Use Act?

It is the submission of the learned senior Counsel that the trial Court relied exclusively on Exhibit P2 (Certificate of Occupancy) to ground all the 10 reliefs sought by the 1st Respondent. That the trial Court rather placed unnecessary emphasis on the issue of unlawful revocation of Exhibit P2 whereas the Appellant hinged his case on the supersession of Exhibit P2 by Exhibit D5 as required by Section 5(2) of the Land Use Act. Thus, the 1st Respondent?s right to the disputed property had been extinguished by the express power of the Governor to issue Exhibit D5 in the face of error by the same State Governor in issuing Exhibit P2. It is therefore perverse to hold that the nature of error was not explained. On what amounts to a perverse finding and its consequence, he relied on IWUOHA V. NIPOST LTD (2003) 8 NWLR (PT.822) 308 AT 343-344. He maintained that the grantor of Exhibit D5 and P2 recognized that it was the Appellant that possessed a deemed grant of statutory right of occupancy; which is traditional in nature and the Land Use Act was not enacted to secure

existing customary holdings and titles. He relied on ADOLE V. GWAR (2008) 22 NWLR (PT 1099) 562 AT 588 PARA D-E, OGUNLEYE V. ONI (1990) 2 FWLR (PT.135) 745. He settled that there is overwhelming evidence that the Appellant had been in long possession and planted economic trees on the disputed land, strengthened by the Land Use & Allocation Committee (Exhibit D7). Thus, when it was discovered that the grant of Exhibit P2 was in error without revoking a deemed grant, the matter should have ended. He submitted also that there was a successful conversion of Exhibit D6 (Local Government C of O) to Exhibit D5 (State Government C of O). It is therefore the submission of the learned senior Counsel that the act of issuing Exhibit P2 illegally and unlawfully over the deemed grant now covered and evidenced by Exhibit D5 has been condemned. He cited in support ADOLE V. GWAR (supra) 587. He has submitted that the efficacy of Section 5(2) of the Land Use Act in correcting errors or mistakes in allocation of land has been variously decided by our Courts. He relied on DABUP V. KOLO (1993) 3 NWLR (Pt.317) PG 254 AT 277-279, GANKON V. UGOCHUKWU CHEMICAL INDUSTRTES LTD

(1993) 6 NWLR (Pt.297) PG 55 AT 73-74. It is contended therefore that the fresh purported grant does not exist in the eyes of the law. He relied on ILONA V. IDAKWO (2003) 11 NWLR (PT.830) 53 AT 84. He also submitted that since the economic trees on the land did not belong to the 1st Respondent, there was no need for payment of compensation to him. He cited ADOLE V. GWAR (supra). He therefore urged this issue to be resolved in his favour.

Contrariwise, the learned Counsel to the 1st and 2nd Respondents has submitted that the incident that triggered this issue is the revocation notice by the 3rd Respondent admitted as Exhibit D1, meant to extinguish the title of the 1st Respondent and vest same on the Appellant. He submitted that a revocation notice must be interpreted strictly. He relied on C.S.S BOOKSHOPS LTD V. T.R.M.C.R.S (2006) 11 NWLR (PT.992) 530 AT 577 E-G. He argued that the reason for the revocation is that same was granted in error and reliance on Section 28 of the Land Use Act cannot avail since it is not one of the grounds for revoking title and a Court of law has power to declare it null and void, which the trial Court did in this appeal. He

cited C.S.S BOOKSHOPS LTD V. T.R.M.C.R.S (supra) 565 A-E. He settled that the trial Court appreciated and delved into the provision of Section 28(1) and (2) of the Land Use Act to come to the conclusion that error in grant is not one of the grounds for revocation. He relied on OTO V. ADOJO (2003) 7 NWLR (PT.820) 636 AT 668 D-E, DABUP V. KOLO (1993) 9 NWLR (PT.317) 254 AT 278 C-D, SAUDE V. ABDULLAHI (1989) 4 NWLR (PT.116) 387 AT 415 H. It is contended that by the contents of Exhibit D1 (the revocation notice), the 3rd Respondent did not carry out the revocation exercise pursuant to Section 5(2) of the Land Use Act. He stated that the provision of Section 5(2) of the Land Use Act is not meant to extinguish all the existing rights of the grantee to a former grant. He quoted DANTSOHO V. MOHAMMED (2003) 6 NWLR (PT. 817) 457 AT 494 B-H, 495 A-E. It is submitted that another issue germane is the fact that the purported revocation notice was not served on the 1st Respondent, which makes it ineffectual and incapable of invalidating the title of the 1st Respondent. He cited in support ODOGWU V. ILOMBU (2007) 8 NWLR (PT.1037) 488 AT 515 H, 516 A-B, OBIKOYA AND SONS LTD V.

GOVERNOR OF LAGOS STATE & 1 OR (1987) 1 NWLR (PT. 50) 385 AT 404 C-F, LATEJU V. FABAYO (2012) 9 NWLR (PT.1304) 159 AT 179 C-D. He urged this Court to resolve this issue in his favour.

A Reply Brief is not for a second bite at the cherry. Indeed, I see no new issue in the argument of the 1st and 2nd Respondents that should necessitate a Reply from the Appellant’s learned senior Counsel. A Reply brief is not for re-argument, rejoinder or adumbration of issues but for addressing new issues raised in the Respondent?s brief, if any. See NITEL PLC V. OCHOLI (2001) FWLR (Pt. 74) 254 AT 267. I have not seen merit to consider the Reply of the Appellant.

In the judgment of the trial Court contained at pages 122-127, he principally held that because the reason for the revocation of the title of the 1st Respondent was in error and contrary to Section 28 (1) (2) of the Land Use Act and that the said notice of revocation was not personally served on the 1st Respondent, same must be set aside and declared null and void. I cannot but agree with this position of the law which remains unbendable.
?It is noted that the revocation made of the 1st

Respondents title vide Exhibit D1 is not in dispute. What is in contention is the validity of the revocation. The learned Counsel to the 1st and 2nd Respondents has submitted that aside the fact that the revocation was contrary to the provision of Section 28 (1) (2) of the Land Use Act, the reason stated on Exhibit D1 is that “It has been established that the grant made to Mustapha Abubakar over the said plot was done in error”. Moreover, that the revocation notice was not personally served on the 1st Respondent.
Thus, making the trial Court to declare it null and void.
Section 28 (1) (2) of the Land Use Act provides for the authority of the Governor to revoke a right of occupancy for any of the following reasons: (a) For overriding public interest. (b) For public purposes. (c) For breach of the provisions imposed by Section 10 of the Land Use Act. (d) For breach of any terms envisaged by Section 8 of the Act. (e) For failure to comply with the requirements specified in Section 9(3) of the Act. See Per ONU, JSC in ADOLE V. GWAR (2008) 11 NWLR (PT.1099) 562. While Section 28 (7) provides that the title of the holder of a right of occupancy shall be

extinguished on receipt by him of a notice given under Subsection (6) of this Section or on such later date as may be stated in the notice. It goes without gainsay that the revocation of the title of the 1st Respondent by the 3rd Respondent cannot stand in the eyes of the law.
What this portends therefore is that the statutory certificate of occupancy No. KD.5265 granted to the 1st Respondent, Mustapha Abubakar, over Plot No. AR. 8 Attahiru Road, Malali, Kaduna, subsists and is valid until proved Otherwise. Of course, “error in grant” of Right of Occupancy is not a ground for a valid revocation of title within the purview of Section 28 of the Land Use Act.

Nevertheless, this is not the end of the matter in the instant appeal. We are but in the cross-road here and there is a chasm to jump over. In the instant appeal, the 1st Respondent claims ownership and title to Plot No. AR. 8 Attahiru Road, Malali, Kaduna, vide Exhibit P2, certificate of occupancy No. KD.5266, while the Appellant equally claims title to same Plot No. AR. 8 Attahiru Road, Malali, Kaduna, vide Exhibit D5, certificate of occupancy No.KD.9480. By the provisions of Section 9 of the Land

Use Act, a Certificate of Statutory right of Occupancy can be issued to anyone who has been granted such right by a Governor of a State. However, such statutory right of occupancy is only a prima facie evidence of title in the land. See OTUKPO V. JOHN (2012) 7 NWLR (PT. 1299) 357 AT 377, CHURCH V. OLOWOSENI (1990) 6 NWLR (PT.158) 514, ADOLE V. GWAR (2008) 11 NWLR (PT.1099) 562 AT 503-618, LABASEBI V. LAGOS METAL IND. LTD. (1973) 1 S.C. 1, DZUNGWE V. GBISHER (1985) 2 NWLR (PT.9) 528, OGUNLEYE V. ONI (1990) 2 NWLR (PT.135) 743:, OLOHUNDE V. ADEYOJU (2000) 10 NWLR (PT. 676) 562, SAUDE V. ABDULLAHI (1989) 1 NWLR (PT.116) 387, AGBOOLA V. UBA PLC. (2011) 11 NWLR (PT.1258) 375 AT 408.
Be it noted that it has long been settled by this Court that one right of occupancy cannot just on its face extinguish another. See ADOLE V. GWAR (2008) 11 NWLR (PT.1099) 562. The case as it appears to me is that based on the grant of the certificate of occupancy No. KD.5266 to the 1st Respondent, the 3rd Respondent discovered that there was already an existing right and title over the same Plot No. AR. 8 Attahiru Road, Malali, Kaduna, which right and title was vested in the

Appellant and evidenced by Exhibit D5, certificate of occupancy No.KD.9480, and was never revoked. To buttress this point, DW1 in his evidence testified at page 77 that:
“The error was discovered after the grant to the 1st Plaintiff and issuance of Certificate of Occupancy”.

Again, evident and apparent is the content and reason stated therein in Exhibit D1, the Notice of Revocation of the grant to the 1st Respondent. Exhibit D1 records that “It has been established that the grant made to Mustapha Abubukar over the said plot was done in error”

Can it then be safely concluded that the illegal revocation of the 1st Respondent?s grant and non-personal service on him of the notice thereof be capable of divesting the Appellant of his grant and title? Can it be conscientious that because revocation was not in compliance with Section 28 of the Land Use Act, a latter grant over another person’s title and grant must stand? Can a grant of certificate of occupancy extinguish and divest the right and ownership of a person claiming superior title to land?
?
Having discovered that there was another grant, title and ownership over Plot No. AR. 8

Attahiru Road, Malali, Kaduna, the 3rd Respondent revoked the title of the 1st Respondent to enable the Appellant enjoy incontestable and undisputed title over his parcel of land. Although the revocation was contrary to Section 25 (1) of the Land Use Act and was not personally served on the 1st Respondent, it cannot be declared invalid without a remedy. In other words, as it stands now, does the trial Court expect both the Appellant and the 1st Respondent to remain competing title holders and owners over the same Plot No. AR.8 Attahiru Road, Malali, Kaduna? There is no such dual ownership of land in a case like this. I would have expected a rectification of the error committed by the 3rd Respondent rather that a revocation it carried out that turned out to be contrary to the provision of Section 28 of the Land Use Act. What the trial Court ought to have done respectfully was to set aside a grant that was made in error by the 3rd Respondent in favour of the Appellant rather than to hold as it did. The trial Court has more or less created a problem than a remedy or solution. Where there is a right, there is a remedy. The Appellant’s title over the same plot of

land has not been revoked, yet the trial Court went ahead to certify the title of the 1st Respondent over the same piece of land. Courts must be seen to bring solutions; that is why litigants flock to them. The Court severally has remedied situations like this one. This Court had occasion to reason on this thus in OLALEYE V. TRUSTEES OF ECWA (2010) LPELR-4743 (CA):
“Once a person is granted a Statutory Right of Occupancy in and 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… However Section 5 (2) of the Land Use Act does not preclude the Court from setting aside the grant of the statutory right of occupancy in appropriate circumstances such as for instance, when it has been issued in error or has been obtained by fraud.”
See the cases of GANIKON V. UGOCHUKWU CHEM. IND. LTD. (1993) 6 NWLR (PT.297) 55, TENIOLA & ORS V. OLOHUNKUN (1999) 5 NWLR (PT.602) 280, SAUDE V. ABDULLAHI (1989) 1 NWLR (PT.116) 387. Furthermore, In OTUKPO V. JOHN (2012) 7 NWLR (PT. 1299) 357 AT 377, the Supreme Court held that:
?A Certificate of Occupancy is a

prima facie evidence of title or possession. It is not a conclusive proof of title to the land it relates to. The mere production of it by a Party does not (ipso facto) by itself, entitle the party to a declaration of title. Consequently, if it is successfully challenged, it can be nullified. Where there is evidence to show that it was wrongly issued or obtained, the Court can nullify it.?
See also CHURCH V. OLOWOSENI (1990) 6 NWLR (PT.158) 514, ADOLE V. GWAR (2008) 11 NWLR (PT.1099) 562 AT 503-618, LABASEBI V. LAGOS METAL IND. LTD. (1973) 1 S.C. 1. Similarly, Per Edozie, J.S.C. in ILONA V, IDANWO (2003) 11 NWLR (PT.830) 53 held:
“Where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid. The appellant’s right of occupancy subsists up to now as it has not been revoked and the wrongful grant to the 1st respondent has no effect whatever on its authenticity.”
See also KARI V. GANARAM 11 (1997) 2 NWLR (PT. 488) 380 AT 401.

The 3rd Respondent, the grantor of the right of occupancy, having discovered

the error ought to have settled the 1st Respondent. The 1st Respondent I think has an axe to grind with the 3rd to 5th Respondents and not with the Appellant since both the Appellant and the 1st Respondent cannot at the same time claim title to Plot No. AR. 8 Attahiru Road, Malali, Kaduna. If I may advise, the 1st respondent should press for re-allocation and rectification and nothing more against the 3rd Respondent. In the absence of the revocation of the Appellant?s title and grant, the latter grant of certificate of occupancy to the 1st Respondent over the same parcel of land cannot extinguish the Appellant’s title, irrespective of its revocation contrary to Section 28 (1) (2) and (7) of the Land Use Act. This issue must be resolved in favour of the Appellant.

ISSUE 2:
Whether the trial Court was justified in granting the Declaratory Reliefs sought by the 1st and 2nd Respondents and dismissing the counter claim of the Appellant having regard to the evidence adduced?
?
It is submitted by the learned senior Counsel that the first 5 reliefs of the 1st Respondent revolve around the issue of the revocation of Exhibit P2 and its lack of merit. On

relief 6, it is clear that there was no re-allocation of the disputed land from the Appellant to the 1st Respondent as the evidence of DW1-DW3, Exhibits D5, D6 & D7 show that the property has been in the possession of the Appellant since 1981. Thus, that by the overall declarations of the 1st Respondent with the powers conferred on the Governor by virtue of Sections 5, 34, 36 and the evidence tendered, it is apparent that on the balance of probability, the 1st Respondent has not proved his entitlement to any of the reliefs sought. That the 1st Respondent only showed that he applied for and was granted the land in dispute without establishing any access and or possession of the land while the evidence of DW2 showed that he has been in possession of the land for 15 years before the commencement of this action in 1999 and exercised acts of ownership since 1982 when the documents were handed over to him for purchase by DW3 and made frantic efforts to normalize his allocation with the State Government as in Exhibit D7. He relied on OLAGUNJU V. ADESOYA (2009) 9 NWLR (PT.1146) PG 225 AT 229-262. He argued that a Plaintiff must at all times prove his entitlement to

land. Thus, the issue of Exhibit P6 as an admission extracted by the Police in the course of criminal investigation is not one of the ways of proving title to land. In support, he cited LAWSON & 1 OR V. CHIEF AYODELE & 2 ORS (1997) 6 SCNJ PG 1 AT 12. On revocation of the title of the 1st Respondent evidenced by Exhibit D1, the legal position is that where a Governor makes a mistake of a grant, he needs not resort to Section 28 of the Land Use Act but to rectify same. He relied onSAUDE V. ABDULLAHI (supra). The Appellant having been a deemed holder of a statutory right of occupancy under Section 36(2) of the Land Use Act, the relevant approval in Section 21 is from the Local Government by Section 21(2). By being a deemed holder, he applied for conversion which was approved at the 34th meeting of the Land Use Allocation Committee in Exhibit D7. He submitted that all these were uncontroverted. He thus cited ONONUJU V. A.G. ANAMBRA STATE (2009) 10 NWLR (PT. 1148) 182 AT 206 PARAS E-F. He contended that the fact that the 1st Respondent was issued a certificate of occupancy in respect of same land without more does not suffice since the Appellant through

oral and documentary evidence has shown that there was prior interest vested in him before the issuance of Exhibits P1 & P2 to the 1st Respondent. Thus, it is safe to hold in favour of a party claiming a declaration of title to land who succeeds in establishing such acts of ownership over a sufficient length of time that is numerous and positive. He urged this issue to be resolved in his favour, allow the appeal and set aside the judgment of the trial Court.
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On this issue, the Respondent has on the other hand submitted that contrary to the argument of the Appellant the entitlement of the 1st Respondent to the disputed property is not restricted exclusively to the issuance of statutory certificate of occupancy as in Exhibit P2. That there is evidence led by PW1 of acts of ownership by erecting wall fence twice which was demolished twice by the Appellant. Also, that he paid compensation at the instance of the 4th Respondent as manifested in Exhibit P4. Furthermore, that he was not served with the revocation notice. Thus, they have established by concrete evidence their entitlement to the reliefs in their statement of claim. He contended that it is the

law that the plaintiff must succeed on the strength of his case and not on the weakness of the defendants case. He cited ONISAODU V. ELEWUJU (2006) 13 NWLR (PT.998) 517 AT 529 B-D, ASHIRU V. OLUKOYA (2006) 11 NWLR (PT. 990) 1 AT 30 A-B, He submitted that there is evidence by the Appellant as DW2 that there was no written agreement or memorandum evidencing the transaction of the disputed property. Thus, the Statutes of Frauds, 1677, is applicable to this case. He relied on IBEKWE V. NWOSU (2011) 9 NWLR (PT.1251) 1 AT 17 C-F. He therefore submitted that it is in the light of the above that the trial Court dismissed the counter-claim of the Appellant. Again, that the argument of the Appellant on Exhibit D7 is of no moment since it is not on the same property with the one in dispute. He urged this Court to resolve this issue in their favour and dismiss the appeal.

In action for declaration of title to land, it is the law that the plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s case. See ASHIRU V. OLUKOYA (2006) 11 NWLR (PT.990) 1 AT 30 A-B, ONISAODU V. ELEWUJU (2006) 13 NWLR (PT.998) 517 AT 529 B-D. Since there is

a counter-claim, both the Appellant and the 1st Respondent must succeed on the strength of their individual cases for title to be given to them.

370.

In the instant appeal, it is notable that both parties lay competing claims to Plot No. AR. 8 Attahiru Road, Malali, Kaduna, evidenced by Exhibit P2, certificate of occupancy No. KD.5266 of the 1st Respondent, and by Exhibit D5, certificate of occupancy No.KD.9480, held by the Appellant. In this case, who then has a better title?

By the pleadings and evidence before this Court, it is evident that the 1st Respondent traced his title and ownership to Plot No. AR. 8 Attahiru Road, Malali, Kaduna, vide Statutory Certificate of Occupancy No. KD 5266 dated 22/3/98, without more as can be gleaned from paragraphs 7-9 of the statement of claim at pages 39-40 of the records. The Appellant on the other hand, by his pleadings at page 60 traces his title and ownership to a Statutory right of occupancy over Plot No. AR. 8 Attahiru Road, Malali, Kaduna, vide certificate of occupancy No.029007 dated 29/11/1981 which crystallized into certificate of occupancy No.KD.9480 as contained at paragraph 1 of page 60 of the records and same admitted in evidence as Exhibits D6 and D5 respectively. In further proof to his title, he pleaded and led evidence that the Holder

of C of O No.029007, one Alhaji Abdullahi Musa, who was a deemed holder, transferred same to him by sale and immediately erected fence and planted economic trees on same and has since been in possession since 1981. See his evidence particularly at page 80 of the records and the pleadings at pages 56-57 paragraph 12-15. He pleaded also that it was until in 1997 when the 1st Respondent trespassed on same which eventually led to the suit at the trial Court.

The Appellant in further proving his title to the land in dispute, gave evidence that he bought same from Alhaji Abdullahi Musa. Nevertheless, it is contended by the 1st Respondent that there was no evidence of such transfer, making it null and void pursuant to the Statutes of Fraud. By way of emphasis, a plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s case. See ASHIRU V. OLUKOYA (2006) 11 NWLR (PT. 990) 1 AT 30 A-B, ONISAODU V. ELEWUJU (2006) 13 NWLR (PT.998) 517 AT 529 B-D. Although this was conceded by the Appellant in his evidence at page 82 of the records that “there was no written agreement between Abdullahi Musa and I”, I cannot see how the title to the

land can still devolve to the 1st Respondent. The Statute of Fraud is meant to obviate frauds respecting sale of land as an important property, thus the need for evidence in case of suits like this.
The Appellant has however gone further to seal the lips of the 1st Respondent and nailed the matter by calling on DW3, Alhaji Abdullahi Musa, who at page 84 testified thus:
?My name is Abdullahi Musa? I know the 4th Defendant. An agent brought him to me for the purchase of a land. I sold the land to him. The land is along Mambila Close, by the stream. It was farmland I bought from Malam Ango Malali”.

Under cross-examination on same Page, he affirmed that “I gave the 4th defendant the original of D6 when I sold the land to him…” Can there be any full proof evidence of transfer of title than this? It is pertinent to note therefore, that the Appellant did not only prove his title but even beyond that of Alhaji Abdullahi Musa to that of Malam Ango Malali, when the land in dispute was a bush as shown in the evidence at page 84 of the records.
The Supreme Court, Per IGUH, JSC, expounded on this in NGENE V. IGBO (2000) 4 NWLR (PT.651) 131,

when he stated:
?It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how this Person or family derived his or its title to such land. Accordingly, the plaintiff, to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the Person from whom he claims, for, as the maxim goes, nemo dat quod non habet meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such and particularly whereas in the present case, the defendant did not concede the ownership of the land by the plaintiff’s grantor but expressly denied the same?.
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In this appeal, the 1st Respondent as observed above did not trace any title beyond the grant of Exhibit P2 while the Appellant has proved his title to Alhaji Abdullahi Musa, a deemed holder of statutory right who sold same to him, and neither was his title or grant revoked or extinguished. This evidence was never challenged at all and

is deemed uncontroverted and admissible.

In ADENIRAN V. ASHABI (2004) 2 NWLR (PT.857) 375, it was held where two competing parties trace their titles to a common grantor or an original owner, the later in time gives way to the earlier one and he cannot therefore maintain an action against the one who first obtained title or interest in the property. This is because the grantor or original owner who divested himself of his title over the land in dispute to the first grantee would have nothing left to convey to the subsequent grantee. In the same vein, it was posited as apposite to this appeal in KARI V. GANARAM (1997) 2 NWLR (PT. 488) 380, that where there are competing interests by two or more parties claiming title to the same land from a common grantor, the position, both at law and in equity, is that such competing interests will prima facie rank in order of their creation based on the maxim qui prior est tempore potiorest jure, which simply means, he who is earlier in time is stronger in law.
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I must reiterate that the certificate of occupancy No.KD.9480, Exhibit D5 was issued by the 3rd Respondent, in the absence of any existing right of occupancy.

However, Exhibit P2, Certificate of Occupancy No. KD 5266 dated 22/3/98, issued to the 1st Respondent was issued when there was an existing and subsisting right over Plot No. AR. 8 Attahiru Road, Malali, Kaduna, earlier granted to Alhaji Abdullahi Musa, who transferred same to the Appellant without being revoked, hence cannot divest the right of the Appellant over the land in dispute. In OSAZUWA V. OJO (1999) 13 NWLR (PT.634) 286, it was held that a certificate of occupancy properly issued where there is no dispute that the document was properly issued by a competent authority raises 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. See also SHOGO v. ADEBAYO (2000) 14 NWLR (PT.686) 121, EZEANA V. ATTA

(2004) 4 NJSC 1.

The 1st Respondent ought to succeed on the strength of this case and not on the frailty of the Appellant?s case or admission at the Police station. See LAWSON & 1 OR V. CHIEF AYODELE & 2 ORS (1997) 6 SCNJ PG 1 AT 12. On the admission of the Appellant on Exhibit P6 over the superior title of the 1st Respondent over his own, I agree with the submission of the learned Silk that it is not one of the ways of proving title to land and neither will I accept it as one. On this, the Appellant during the trial confessed in the last paragraph at page 80 that “Under duress, I accepted superiority of the Plaintiff’s Claims over mine. I was treated as a criminal at the Police Station.” I must wonder when the Police has been saddled with the onus and duty of adjudicating on land matters!
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It goes with dispute and by the preponderance of evidence that the Appellant by his defence and counter-claim has proved a better and superior title over the claims and evidence of the 1st and 2nd Respondents. This issue is resolved against the 1st and 2nd Respondents. The two issues are resolved in favour of the Appellant. Consequently, the appeal

succeeds and the judgment of the trial Court in Suit No.KDH/KAD/668/1999, delivered on 7/11/2006 by Hon. Justice T. Zailani J, now Chief Judge of Kaduna State, is set aside. I make no order as to costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I read before now the judgment of my learned brother, UWANI MUSA ABBA AJI, J.C.A. I am in full agreement with the reasoning and conclusions that the appeal has merit, and succeeds. I have nothing useful to add to the erudite judgment wherein all the issues raised in the appeal have been comprehensively resolved. Accordingly, I allow the appeal, and set aside the judgment of the lower Court delivered on the 7th of November, 2006, in suit No. KDH/KD/668/1999. I abide by the order made on costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (DISSENTING): I have had the privilege of reading before now the draft of the lead judgment delivered by my learned brother, Uwani Musa Abba Aji, JCA. I must say, with all deference, that I am unable to agree with the reasoning and conclusions reached in the lead judgment. I am compelled to write dissenting views.

The

action in the lower Court was commenced by the first and second Respondents, as plaintiffs, against the third to the fifth Respondents and the Appellant, as the first to the fourth defendants respectively. The claims of the first and second Respondents, as plaintiffs, and claims on the counterclaim of Appellant, as the fourth defendant, have been ably set out in the lead judgment and need no repetition. The facts of this case as made out on the pleadings and in the evidence of the parties are pretty straightforward and they were also eloquently marshaled in the lead judgment. I will, however, repeat them here for emphasis.

This case is in respect of a land dispute and it was in respect of a parcel of land situate known as No AR.8, Attahiru Road on TPO 418D, Malali, Kaduna. The first Respondent was offered and allocated the parcel of land by the Kaduna State Government in 1997 and he was subsequently issued with a Certificate of Statutory Right of Occupancy over the parcel of land; the letter of grant and allocation and the certificate of occupancy were Exhibits P1 and P2. Sequel to the allocation of the land, the first Respondent authorized the second

Respondent to erect a wall fence round the parcel of land and the wall fence was duly erected. The Appellant, who resided on an adjacent property, demolished part of the wall fence and consequent on which a criminal complaint of mischief and trespass was lodged against him by the first and second Respondents at the Malali Divisional Police Station, Kaduna. As part of the investigation, the Police wrote to the Kaduna State Bureau for Lands and Survey, the fourth Respondent, for confirmation as to the ownership of the land in dispute and the fourth Respondent wrote a letter affirming the ownership of the land by the first Respondent and this letter was Exhibit D2 at the trial. The Appellant too wrote a letter wherein he conceded the superiority of the title of the first Respondent to the land in dispute and consequent on which the first and second Respondents withdrew the criminal complaint and the matter was laid to rest; the letter written by the Appellant was Exhibit P6.
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Thereafter, the second Respondent rebuilt the portion of the wall fence of the land in dispute demolished by the Appellant. The Appellant again demolished the wall fence and when

confronted this time, the Appellant informed the first and second Respondents that the Certificate of Occupancy of the first Respondent over the land in dispute, Exhibit P2, had been revoked by the third Respondent and that a new Certificate of Occupancy over the land was issued by the third Respondent in his favour; the Certificate of Occupancy issued in favour of the Appellant was tendered as Exhibit D5 at the trial. The first and second Respondents, prompted by the information, made enquiries at the office of the fourth Respondent and discovered that based on a petition written by the Appellant to the third Respondent alleging that he had purchased the land in dispute from one Abdullahi Musa prior to the grant and allocation of same to the first Respondent, the third Respondent directed that the Certificate of Occupancy of the first Respondent be revoked as having been issued in error, and that a new Certificate of Occupancy be issued in favour of the Appellant. The revocation order, tendered as Exhibit D1, was not served on either the first or second Respondent. Based on these discoveries, the first and second Respondents commenced the matter in the lower

Court.
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The third to the fifth Respondents and the Appellant, as the first to the fourth defendants respectively, did not contest any of the above stated facts. The further case of the first and second Respondents before the lower Court was that the certificate of occupancy, Exhibit P2, was validly issued after due observance and compliance with all necessary requirements and that it can only be properly revoked in accordance with and for grounds stated in the relevant Statute and error in grant was not one of them. It was their case that the property to which the Appellant laid claim of prior ownership, and on the basis of which claim the third and fourth Respondents were misled to revoke their certificate of occupancy, was different in all respect from the property in dispute and that the land in dispute was in Urban Area and could not have been covered by a Local Government Certificate of Occupancy as alleged by the Appellant and that the Appellant did not have any interest in the property in dispute that could have been normalized or regularized by the third and fourth Respondents. It was their case that the property for which the Appellant claimed

that he had made a prior application to the Land Use Committee was different from the property in dispute and that the Appellant was never in possession of the property in dispute and did not exercise any right of possession thereon.

?The further case of the Appellant was that he purchased the land in dispute from one Abdullahi Musa, a holder of a Customary Right of Occupancy over the land, in 1981 and that he went into immediate possession of the land and planted economic trees thereon and that in 1987 the Land Use Allocation Committee normalized his possession and title over the land. It was his case that sometime in 1997, he noticed the presence of the first and second Respondents on the land and he caused a petition dated the 25th of May, 1998 to be written to the then Military Administrator and that the petition was treated and in the course of which the authorities appreciated the colossal injustice meted to him by the unlawful reallocation of his land and they took steps within their powers under the Land Use Act to regularize the injustice. It was his case that the steps taken included the revocation of the right of occupancy earlier granted to the

first Respondent and the perfection of his own title by issuing to him a Statutory Right of Occupancy which he accepted on the 24th of May, 1999 and that the power of the third Respondent to revoke erroneously made grant was extant and indeed a surplusage.
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The first and second Respondents adopted all the facts averred in their pleadings as their defence to the counterclaim of the Appellant. At the conclusion of trial in the matter and after the rendering of final addresses by the parties, the lower Court found that the revocation of the certificate of occupancy of the first and second Respondents and the issuance of certificate of occupancy over the land in favour of the Appellant by the third and fourth Respondents were wrongful and it entered judgment granting the claims of the first and second Respondents to the ownership of the property as well as other ancillary reliefs and it dismissed the counterclaim of the Appellant. This appeal is against this judgment of the lower Court. The issues for determination in this appeal as formulated by the Counsel to the parties have been articulated in the lead judgment as well as the arguments canvassed thereon by

the Counsel to the parties and they need no restatement here.
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The land in dispute in this matter is the plot of land lying, being, and known as Plot No AR.8 Attahiru Road on TPO 418D, Malali, Kaduna. The claim of the first and second Respondents before the lower Court was that the first Respondent was the holder of a validly issued and properly authenticated certificate of occupancy No KD5226 duly executed by the third Respondent in his favour and that the revocation of the certificate of occupancy by the third and fourth Respondent and the subsequent issuance of a certificate of occupancy over the same plot of land in favour of the Appellant were wrongful and consequent on which they sought for several orders of Court. The claim of the Appellant on the counterclaim was for a declaration that he was at all material times a deemed holder of a statutory of occupancy over the land in dispute and that the revocation of the certificate of occupancy of the first Respondent over the parcel of land and the subsequent issuance of a certificate of occupancy No 029007 in his favour was proper as his deemed right of occupancy over the land was not at anytime

revoked.

As stated earlier, it was not in dispute between the parties that the first Respondent was the holder of duly issued and authenticated certificate of occupancy No KD5226 given to him by the Kaduna State Government, the third and fourth Respondents, over the land in dispute and this was sequel to an offer grant and allocation of the land to him. The letter of offer of grant and allocation and the certificate of occupancy were Exhibits P1 and P2. It was not in contest that the first Respondent paid all the requisite fees for the allocation and grant of the land in dispute to him as evidenced by Exhibits P3, P4 and P5. In fact, the fourth Respondent confirmed in a letter dated the 27th of May, 1998 addressed to the Police, and which was tendered as Exhibit D2, that the first Respondent was the holder of a validly issued certificate of occupancy over the land in dispute. It is trite law that by the provisions of Sections 5 of the Land Use Act, once the Governor has granted a right of occupancy over a parcel of land, within the area of his authority, all existing rights to the use and occupation of the land which is the subject of the right of

occupancy shall be extinguished – Abioye Vs Yakubu (1990) 5 NWLR (Pt 190) 130, Titiloye Vs Olupo (1991) 7 NWLR (Pt 205) 219, Gankon Vs Ugochukwu Chemical Ind. Ltd (1993) 6 NWLR (Pt 297) 55, Ohenhen Vs Uhumuavbi (1995) 6 NWLR (Pt 401) 303, Lang Vs Mohammed (2001) 3 NWLR (Pt 700) 359, General Cotton Mills Ltd Vs Travellers Palace Hotel Ltd (2006) 10 NWLR (Pt 989) 502.
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 in respect thereof. Such a 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.
The presumption is however rebuttable because if it proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy then the Court can revoke it – Haruna vs Ojukwu (1991) 7 NWLR (Pt 202) 207, Ilona Vs Idakwo (2003) 11 NWLR (Pt 830) 53, Ezeanah Vs Attah (2004) 7 NWLR (Pt 873) 468, CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530, Madu Vs Madu (2008)

6 NWLR (Pt 1083) 296, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597.

Thus, the first task of the Appellant before the lower Court on his counterclaim was to show that he possessed a better title to the land in dispute before the issuance of the certificate of occupancy, Exhibit P2, by the third and fourth Respondents in favour of the first Respondent. The case of the Appellant was that he purchased the land in dispute from one Abdullahi Musa, a holder of a Customary Right of Occupancy over the land, in 1981 and that he went into immediate possession of the land and planted economic trees thereon and that in 1987 the Land Use Allocation Committee normalized his possession and title over the land. In response to these averments, the first and second Respondents maintained that the parcel of land which the Appellant claimed that he purchased and in respect of which he laid claim of prior ownership and in respect of which he said he approached the Land Use Committee for normalization was different from the land in dispute and that the Appellant had no prior interest in the land in dispute that could have been normalized or regularized by the third and

fourth Respondents.

Thus, in discharging the onus on him, the Appellant had the responsibility of proving that the land in dispute was the same as or part of the parcel of land which he said he purchased and in respect of which he approached the Land Use Committee. After all, it is trite law that where a party relies on document of title and/or a survey plan in proof of ownership of land, that the party must show that his document of title or plan corresponds with the land to which he lays claim. It may not be enough for a party simply to tender a document of title or a plan of land and rest content that the boundaries have been defined when there is nothing in the pleading and evidence against which to test the boundaries and even as well as the location and features of the said land – Epi Vs Aigbedion (1973) 1 NMLR 37 at 34, Odofin Vs Ayoola (1984) 11 SC 72, SaIami Vs Oke (1987) 4 NWLR (Pt 63) 1, Ekpechi Vs Owhonda (1998) 3 NWLR (Pt 543) 618, Okene Vs Orianwo (1998) 9 NWLR (Pt 566) 408, Onwuchekwa Vs Ezeogu (2002) 18 NWLR (Pt 799) 333, Ogbogu Vs Ugwuegbu (2003) 10 NWLR (Pt 827) 189 and Fashina Vs Ogunkayode (2005) 12 NWLR (Pt 938) 147 at 772. This is not

an issue of identity of land in dispute, but one of connecting a claim of ownership of land to the identified parcel of land in dispute. It is essential that in a land matter, the statement of claim and the evidence must speak the same language with respect to the area of land claimed and any discordance among them could be fatal – Salami Vs Oke (1987) 4 NWLR (Pt 63) 1, Ijade Vs Ogunyemi (1996) 9 NWLR (Pt 470) 17 and Alimi Vs Obawole (1998) 6 NWLR (Pt 555) 591, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt 1127) 194, Nwakofor Vs Agumadu (2009) 3 NWLR (Pt 1129) 638, Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362.

The Appellant and his vendor, Abdullahi Musa, testified as the second and third defence witnesses respectively. The testimony of the Appellant was that he knew the property in dispute and that it was his property and that he bought it from Abdullahi Musa who surrendered his certificate of occupancy No 029007 to him. The certificate of occupancy was subsequently tendered as Exhibit D6. In other words, the evidence of the Appellant was that the land he purchased was the parcel of land covered by Exhibit D6. The parcel of land covered by Exhibit D6 was

described as Plot MC30 and as measuring 93ft by 130ft by 126ft in Malali New Extension. Exhibit D6 had no survey plan of the parcel of land it conveyed and the Appellant did not state how the parcel of land he purchased as described in Exhibit D6 corresponded to the land in dispute which is known as Plot No AR.8 Attahiru Road on TPO 418D, Malali, Kaduna.
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In his testimony, the vendor of the Appellant testified that he knew the Appellant and that the Appellant was brought to him by an agent for the purchase of a land and that he sold the land to the Appellant and that the parcel of land he sold to the Appellant and which was covered by Exhibit D6 was along Mambila Close, by the stream and that it was a farmland which he bought from Malam Ango Malali. Under cross-examination, the witness stated that he forgot the number of the plot he sold to the Appellant and that he did not know the dimensions of the land. At no time in the course of his entire testimony did the witness state that it was the land in dispute that he sold to the Appellant. No evidence was given to show how the land which the witness said he sold to the Appellant and described as being along

Mambila Close, by the stream corresponded with the land in dispute.

The Appellant was recalled to give further evidence and he stated that immediately after he purchased the land from his vendor, he applied for conversion by the Local Government to State Certificate of Occupancy and that the application was approved at the 34th meeting of the Land Use Allocation Committee held on the 29th of September 1987 and signed by Mrs. F. T. Nyam and he tendered the minutes of meeting as Exhibit D7. The relevant part of the minutes read thus:
“In the report, the Sub-Committee stated that the plot under application by Dr. Abdu Ho (NCL/24701) had been developed to the roofing level.
It is also stated that to the North-North-Westerly direction of the said plot other plots had been developed almost to a finishing level but not yet occupied. Further investigation carried out revealed that there was an encroachment on 22 plots of TPO.418C by Kaduna Local Government. In place of the 22 plots mentioned the Local Government created 66 plots. The encroachment did not spare the Green Belt area of the land.
The Committee considered accepting one of the

recommendations of the Sub-Committee i.e. to normalize Dr. Abdu Ho’s allocation and the other 66 Local Government plots. This would mean amending the layout to conform with what was physically on ground.” (see page 3 of Exhibit D7) (underlining for emphasis)

It was not contest between the parties in this matter that the land in dispute is an undeveloped plot of land on which the Appellant stated that he planted economic trees, but the land in respect of which the Appellant sought the normalization of his allocation from the Land Use Committee, as can clearly be seen from the above excerpt, was a plot of land which had been developed to roofing level. Again, the plot of land for which the Appellant sought for normalization from the Committee formed of the encroachment on TPO 478C; the land in dispute is said to be on TPO 418D. It is obvious that the land in dispute is different from the land that the Appellant approached the Land Use Committee for.
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It was the case of the Appellant that it was in respect of the land which he purchased from Abdullahi Musa and covered by Exhibit D6 that he approached the Land Use Committee for normalization. It is obvious

from the evidence led by the Appellant in support of his claim of prior deemed right of occupancy over the land in dispute that the land which he said he purchased and over which he possessed the deemed right is very different from the land in dispute. It is correct that the Appellant led evidence that he was in possession of the land and that he planted economic trees thereon, but it is elementary law that no amount of use or the length of period of usage of land could confer ownership of land on such a user and it behoves such a party to prove his title in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of a land in dispute cannot precede title nor can it indicate same – Registered Trustees of the Apostolic Faith Mission Vs James (1987) 3 NWLR (Pt 61) 556, Nwaeseh Vs Nwaeseh (2000) 3 NWLR (Pt 649) 391, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332, Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1.

Acts of ownership and possession can only properly be considered where the root of title is pleaded and established by cogent and convincing evidence ? Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt 1196) 307, Odunukwe Vs

Ofomata (2010) 18 NWLR (Pt 1225) 404, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175, Ogunleye Vs Jaiyeoba (2011) 9 NWLR (Pt. 1525) 339.

Moreover, it is settled that a person without title in occupation of land or a trespasser cannot claim to be the occupier or holder of land for the purpose of being conferred with a deemed right of occupancy under Sections 34 and 36 of the Land Use Act – Dakat Vs Dashe (1997) 12 NWLR (Pt 531) 46 and Teniola Vs Olohunkun (1999) 5 NWLR (Pt 602) 280, Din Vs Attorney General, Federation (2004) 12 NWLR (Pt 888) 459, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597
There was thus no “error” in the issuance of the certificate of occupancy, Exhibit P2, over the land in dispute in favour of the first Respondent. And this fact was indeed known to the third, fourth and fifth Respondents, but they nevertheless chose to revoke the certificate of occupancy of the first Respondent. The witness called by the third, fourth and fifth Respondents, as the first to the third defendants, in the lower Court, to testify on their behalf as the first defence witness was a Mr. David A. G. Kha’ah, a Deputy Director Land Administration in charge of

Deeds in the Ministry of Land and Survey Kaduna. Under cross-examination by Counsel to the Appellant, who was the fourth defendant, the witness stated thus:
“I have been with the Lands for about 16 years. I am also a lawyer. I am familiar with some of the facts of this case. I know the Plaintiff is challenging the revocation of the Certificate of Occupancy. I am not sure that the land was held by the 4th Defendant before the Plaintiff. There are two files in respect of this land. One is in the name of the first Plaintiff. It got missing. Another in the name of the 4th Defendant that is with us. It is possible to bring the files. I am not sure it is the same plot.” (see page 79 of the records and underlining is for emphasis)

Thus, there was no certainty on the part of the third, fourth and fifth Respondents on the existence of the alleged deemed grant over the land in dispute in favour of the Appellant. The revocation of the certificate of occupancy of the first Respondent on the ground of an “error” in the making of the grant was thus baseless and wrongful and should not be allowed to stand.
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Going further and assuming that there was indeed an

“error” in the grant of the certificate of occupancy in favour of the first Respondent on the ground that the Appellant possessed a deemed grant over the land as at the time the certificate of occupancy was issued, the next question is whether the third Respondent possessed the power to revoke the certificate of occupancy in the manner it did?

It is correct that the rights that are automatically extinguished following the issuance of a certificate of occupancy in the exercise of the power of the Governor under Section 5 (2) of the Land Use Act are existing rights to the use and occupation of the land such as the rights of licences, mortgages, etc. but not vested right such as statutory rights of occupancy, actually or deemed granted, which are recognized by the Act itself. Where therefore there exists a prior grant, Section 5 (2) of the Land Use Act cannot be applied to defeat it, as the Section cannot in that case be swallowed wholesale. Section 5 (2) of the Land Use Act will only be able to defeat the existing vested right if such right is revoked under Section 28 of the Land Use Act for any of the reasons stated thereunder. Otherwise there will be

in existence at the same time two valid rights of occupancy granted to different persons in respect of the same parcel of land and in such a case, the later right of occupancy is liable to be invalidated – Adole Vs Gwar (2008) 11 NWLR (Pt 1099) 562, Shell Petroleum Development Co. Nigeria Ltd Vs Amadi (2010) 13 NWLR (Pt 1210) 82.

The right of an existing holder or occupier of a parcel of land is not automatically extinguished by the mere issuance of a certificate of occupancy to another person under color of a person in occupation. It does not extinguish the right of any other person having a customary right to the land – Registered Trustees of Apostolic Church Vs Olowoleni (1990) 6 NWLR (Pt 158) 514, Mbashinya Vs Liman (1996) 3 NWLR (Pt 434) 62, Mark Vs Shanono (2006) 4 NWLR (Pt 969) 133, Adole Vs Gwar (2008) 11 NWLR (Pt 1099) 562.

But the law is that a person who is granted a certificate of occupancy over a parcel of land is entitled to hold the land to the exclusion of any other person unless and until the certificate of occupancy is for good reasons revoked by the same authority that granted it or the grant is found to be void and set aside by a Court

of law – Gankon Vs Ugochukwu Chemical Industries Ltd (1993) 6 NWLR (Pt 297) 55, Madu Vs Madu (2008) 6 NWLR (Pt 1083) 296, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt. 1230) 1.

The “good reasons” for which a certificate of occupancy can be revoked by the issuing authority and the procedure for doing so are expressly stated in Section 28 of the Land Use Act and the fact of a certificate of occupancy over land having been issued while there was a subsisting deem grant over the same land is not one of the “good reasons” stipulated in those provisions – CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530, Brossette Manufacturing Nig. Ltd Vs Messrs Ola Ilemobola Ltd (2007) 14 NWLR (Pt 1053) 109.

It is settled law that where a Statute lays down a clear path, processes and procedures for doing an act, that path and procedure must be followed to the letter for the doing of that act to be proper – Aladejobi Vs Nigerian Bar Association (2013) 15 NWLR (Pt 1376) 66 and Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co Ltd (2014) 7 NWLR (Pt 1405) 165.

The tenor of case law authorities is that a party who

claims to possess a prior customary title to land in respect of which a statutory right of occupancy has been issued to a third party should have recourse to the Court of law to challenge the issuance of the certificate of occupancy and he must seek a clear order for setting aside the certificate of occupancy so issued – Saude Vs Abdullahi (1989) 4 NWLR (Pt 116) 387 at 416, Titiloye Vs Olupo (1991) 7 NWLR (Pt 205) 579 at 530, Dabup Vs Kolo (1993) 9 NWLR (Pt 317) 254 at 278 B-C, Teniola Vs Olohunkun (1999) 5 NWLR (Pt 602) 280 at 298, Ifeacho Vs Inland Medical Co (Nig) Ltd (2001) 1 NWLR (Pt 639) 105 and Dabo Vs Abdullahi (2005) 7 NWLR (Pt 923) 181, at 204-205. The provisions of Section 5 of the Land Use Act do not preclude the Court from setting aside the grant of a statutory right of occupancy in appropriate cases such as, for instance, when it had been issued in error or has been obtained by fraud – Dabup Vs Kolo supra, Teniola Vs Olohunkun supra, Dantsoho Vs Mohammed (2003) 6 NWLR (Pt 817) 457, Ibrahim Vs Mohammed (2003) 6 NWLR (Pt 817) 615, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1.

It is not in contest in the instant case that the third

Respondent did not follow the path, processes and procedure laid down in Section 28 of the Land Use Act in revoking the certificate of occupancy of the first Respondent, Exhibit P2. Counsel to the Appellant argued that the third Respondent possesses an inherent power under S 5(2) of the Land Use Act to unilaterally rectify and/or correct a mistake of fact committed in the course of granting a right of occupancy and he need not act under the provisions of Section 28 of the Land Use Act to do so and he cited the case of Dabup Vs Kolo supra. Now, while I concede that such inherent power to rectify and correct a mistake of fact in the grant of a right of occupancy can be inferred from the provisions of Section 5 (2) of the Land Use Act, it is my candid view that where the issue at stake involves the withdrawal or cancellation of a right of occupancy, the inherent power cannot be exercised unilaterally because it will involve the taking away of vested rights of a citizen in property. In such a circumstance, it must be exercised with the consent and concurrence of the parties concerned, and where one of the parties concerned does not concur or consent, the dispute

becomes matter for adjudication which only the Courts or bodies set up for that purpose are empowered to do. The inherent power cannot, and does not include, the power to revoke a certificate of occupancy and neither does it include the power to set aside the grant of a certificate of occupancy on the ground that it was issued in error where there is no concurrence from the parties concerned.

In the instance case, the third Respondent revoked the certificate of occupancy of the first Respondent and it further stated categorically, in the Revocation Order, Exhibit D1, that it was acting under the powers conferred on it by the express provisions of the Land Use Act to do so, and not under any assumed inherent power. The only express provisions in the Land Use Act which empowers the third Respondent to revoke a certificate of occupancy are contained in Section 28 of the Land Use Act. The Appellant cannot now seek to justify the revocation of the certificate of occupancy under an assumed inherent power of the third Respondent in the provisions of Section 5 (2) of the Land Use Act. The failure of the third Respondent to follow the path and procedure laid down

in Section 28 of the Land Use Act in revoking the certificate of occupancy of the first Respondent rendered the revocation null and void. Thus, again, I find that the revocation of the certificate of occupancy of the first Respondent by the third Respondent was wrongful and invalid and it is liable to be set aside.
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As stated earlier, the certificate of occupancy of the first Respondent, Exhibit P2, raised in his favour a presumption that is the owner in exclusive possession of the land in dispute. I have found that the presumption was not rebutted by the Appellant as he failed to show by credible and cogent evidence that he possessed a deemed right of occupancy in the property in dispute before the issuance of the certificate of occupancy to the first Respondent. I have also found that the revocation of the certificate of occupancy of the first Respondent by the third Respondent was wrongful, invalid, null and void. The certificate of occupancy subsequently issued to the Appellant over the land in dispute, Exhibit D5, cannot be legal and valid. I thus agree with the lower Court that the first and second Respondents made out a credible case entitling them

to their claims, save for the claim for damages for trespass on which no viable evidence was led. I am also of the view that the counterclaim of the Appellant was rightly dismissed by the lower Court.

It is for these reasons that I am unable to agree with the lead judgment. I find no merit in the appeal and I hereby dismiss it. I affirm the judgment of the High Court of Kaduna State in Suit No KDH/KAD/668/1999 delivered by Honorable Justice T. Zailani on the 7th of November, 2006. I award costs of this appeal in favour of the first and second Respondents in the sum of N50,000.00. These shall be my orders in this appeal.

Appearances

L.E. Oga, Esq. with him, F.T. Hassan, Esq. and A.H. Mu’amu, Esq.For Appellant

AND

O.I Habbeb, Esq. with him, Y. Ajibola, Esq. for 1st & 2nd Respondents.

No Appearance for 3rd-5th RspondentsFor Respondent