MR. ILIYA GIWA v. MICHAEL USMAN ANZAKU
(2019)LCN/12807(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/MK/290/2013
RATIO
LAND LAW: POSSESSION OF A CERTIFICATE OF OCCUPANCY
“However, it must be stated that merely being in possession of a certificate of occupancy is not conclusive evidence of title. SeeAtanda v Iliasu (2012) LPELR – 1966 2(SC) (or (2013) 6 NWLR (Pt. 1351) 529. In the case of Ogunleye v Oni (1990) LPELR 2342 (SC) Pp 43 – 44, Obaseki, JSC, considered Section 34 of the Land Use Act, 1978 and stated that, It should be clear from the provisions of that section that any person without title to a parcel of land in respect of which the certificate of occupancy was issued acquires no right or interest which he did not have before. Furthermore the certificate can not stop the Court from enquiring into the validity and existence of the title the person claims to possess before the issue of the certificate…” PER JOSEPH EYO EKANEM, J.C.A.
LAND LAW: DUTY OF A PARTY WHO CLAIMS TITLE
“The first duty of a party who claims for declaration of title to land and injunction is to properly identify the area to which his claim relates. The land must be identified with certainty. See Dada v Dosunmu (2006) 9 SCNJ 31. Where there is no issue joined in the pleadings by the parties as to the identity of the land, the identity of the disputed land is not a question in issue and does not require proof. This is even more so where, as in this instance, the parties know the land and the trial Court visited the locus in quo. See Nwokidu v Okanu (2010) 3 NWLR (Pt. 1181) 362, 392 and 393, Ilano v Idakwo supra. and Gbadamosi v Dairo (2007) 145 LRCCN 508, 519. It must also be remembered that the appellant filed a purported counter – claim. It is my view that the identity of the land in dispute was not an issue.” PER JOSEPH EYO EKANEM, J.C.A.
LAND LAW: TRESPASS TO LAND
“Trespass is a violation of a possessory right and does not generally involve title to land. see Omoni Vs. Biriyah (1976) 6 SC 49 at 54-55. See Odjevwedje Vs. Echanokpe (1987) 3 SCNJ 51 and Obioha Vs. Duru (1994) 8 NWLR (pt. 365) 631 at page 648. Where one of the claimants is shown not to be the owner, his acts on the land in dispute becomes those of a trespasser. See Ogbechie Vs. Onochie (1988) 2 SCNJ 170; Fasoro Vs. Beyioku (1988) 4 SCNJ 23 and Balogun Vs. Dada (1988) 2 SCNJ 104. Trespass is a wrong against possession not title. See Balogun Vs. Labiran (1988) 3 NWLR (pt. 80) 66 at 82. The competing title of a claimant is put into consideration if the defendant in possession also claims the land in dispute. ” PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
MR. ILIYA GIWA Appellant(s)
AND
MICHAEL USMAN ANZAKU Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Nasarawa State holden at Keffi (the trial Court) delivered on 14/12/2012 by Aboki, J. In the judgment, the trial Court found in favour of the respondent (as plaintiff) and granted some declaratory, injunctive and monetary reliefs against the appellant (as defendant).
The facts of the case leading to this appeal may be summarised as follows:
The respondent claimed to have bought the land in dispute from one Alhaji Musa Karofi in 1969 upon payment of Ten Shillings and one cock. He took possession, farmed and built a house thereon in 1972. The respondent pleaded that the Plateau State Government in 1982 decided to acquire the area for development. The whole area was surveyed and plotted out and it was decided that those already living in the plotted parcels be allocated such plots upon fulfilment of necessary conditions. Respondent?s case was that the portion he lived on since 1972 fell within an area of two plots measuring 400 ft by 400 ft and was known as plot 391. The same was allocated to him.
Out of the land, he gave a portion measuring 50 ft by 50 ft to one Sunday Chinas who built (a house) on it. In 1995, he sold a portion of the same land measuring 100 ft by 50 ft to the appellant for the sum of N2,500. The appellant contended that he was informed by the Ministry for Lands, Survey and Town Planning of the superior title of one Alhaji Tijani Babai on the land based on Right of Occupancy No. PL 2794 dated 7/2/1991. The Ministry demolished appellant’s building construction on the land. He (appellant) paid N40,000.00 to Alhaji Tijani Babai for the land. The appellant built (again) on the land. The appellant demanded for the refund of his money from the respondent. The respondent told him that he would do so any time he moved out of the plot. The respondent averred that the defendant entered a part of the plot he did not sell to him and destroyed 6 stands of palm trees and also packed away 4, 517 mud blocks belonging to him.
Consequent upon the foregoing, the respondent sued the appellant at the trial Court for the following reliefs:
a. A declaration that he is entitled to the ownership and or Right of Occupancy of a plot of land measuring 400 ft x 200 ft situate at G.R.A Keffi to the exclusion of the defendant.
b. A declaration that the entry of the plaintiff?s land by the defendant without the plaintiff?s consent or permission amounts to trespass.
c. N500,000.00 as general damages for trespass.
d. Perpetual injunction restraining the defendant, his agents or privies from further trespass into the said plot?.
The appellant filed a statement of Defence denying respondent?s claim and incorporated an apparent counter ? claim, claiming ownership of the land and general damages.
After hearing evidence from both sides and taking addresses, the trial Court granted the claims of the respondent and held that appellant had no counter – claim.
Aggrieved by the decision of the trial Court granting respondent’s claim, appellant has appealed to this Court by means of a notice of appeal which was filed on 13/3/2013. The same was amended by the order of this Court made on 14/2/2018.
At the hearing of the appeal on 23/1/2019, Oba Maduabuchi (SAN) for appellant adopted and relied on appellant?s amended brief of argument filed on 14/2/2018 in urging the Court to allow the appeal.
B.T. Gabriel, Esq. (holding the brief of Isaac Paul, Esq.) adopted and relied on respondent?s brief of argument filed on 19/9/2018 but deemed duly filed and served on 20/9/2018. He urged the Court to dismiss the appeal.
In the appellant’s amended brief of argument, the following issues are formulated for the determination of the appeal:
(1) Whether the Respondent as plaintiff proved his title to the land in dispute as to entitle him to Judgment.
(2) What is the effect of the Government acquiring all the interest in a piece of land and then granting a Right of Occupancy over same to another person.
(3) Whether the Respondent proved his entitlement to damages as awarded by the Court.
In the respondent’s brief of argument, respondent?s counsel adopts issues one and three of the appellant and formulates an issue 2 thus;
Did the Plateau State Government acquire the respondent’s parcel of land for which the disputed land forms part of Issue 2 formulated by respondent’s counsel does not arise from any ground of appeal in the notice of appeal. Having not filed a cross ? appeal or a respondent’s notice, respondent’s counsel is not entitled to formulate a ground of appeal outside the perimeter of the grounds of appeal raised by appellant. See Arum v Nwobodo (2013) 10 NWLR (Pt. 1362) 374, 395. I therefore discountenance respondent’s issue two.
The issues formulated by appellant?s counsel encapsulate the complaint in his grounds of appeal. I shall be guided by them in the determination of this appeal. I intend to treat issues 1 and 2 together since they are interrelated. Thereafter I will consider issue 3.
Issues 1 and 2
-Whether the respondent proved his title to the land in dispute as to entitle him to judgment.
-What is the effect of the Government acquiring all the interest in a piece of land and then granting a Right of Occupancy over same to another person.
Appellant’s counsel submitted that in a declaratory action, a plaintiff must succeed on the strength of his own case and not on the weakness of his opponent?s case. He set out the five ways of proving title to land in Nigeria. He referred to the averment in the respondent?s statement of claim that he acquired interest in the land from Alhaji Musa Karofi. He contended that the first deficiency in the plea is that he (respondent) did not trace the root of title of his vendor especially since his vendor?s title was not admitted. Referring to several cases including Ukaegbu V Nwololo (2009) 1 SCNJ 49, he submitted that the failure should be the end of respondent’s case.
Senior counsel referred to paragraphs 7 to 14 of the statement of claim, and argued that having pleaded that the Plateau State Government acquired all the land in the area, including the land in dispute, respondent?s interest thereon ended. It was his further argument that it behoved the respondent to prove (re-) allocation by the said government to him. Counsel observed that the respondent pleaded that his own plot of 400 feet by 400 feet fell within two plots now known as Plot 391 and that the same was allocated to him. He soliloquised as to how two plots could have only one number 391. He queried the absence of a layout plan to show that the land occupied by respondent is plot 391. He also queried the absence of instrument of allocation which he said would have closed the matter in respondent?s favour. He urged the Court to invoke Section 167 (d) of the Evidence Act, 2011 against the respondent.
Senior counsel again stated that respondent?s case was that the land was to be allocated to occupants upon fulfilment of necessary conditions. He noted that the respondent did not plead the conditions and how he met them. It was his submission that this was fatal to respondent?s case. He argued that the respondent only applied to be allocated land. He again drew attention to Exhibit A, evidence of payment of compensation to one Alhaji Musa Na ? Turaki (successor of Alhaji Musa Kanyi the customary owner of the land). He wondered then who owned land between Alhaji Musa Kanyi and Alhaji Musa Karofi. It was his submission that the scenario suggested two possibilities including that the respondent?s vendor had no land there to sell to the respondent.
It was further argued that since respondent pleaded that he gave a portion of 50 feet by 50 feet (to Sunday Chinas) and another portion of 100 feet by 50 feet (to appellant) out of the land, it would be impossible to have 400 feet or 200 feet as a size of the land which respondent claimed and was granted by the trial Court. Citing the case ofOtanma V Youdubagha (2006) 1 SCNJ 94, he raised queries as to how the land claimed by respondent could be identified and whether the portions of land sold by respondent are included in the land claimed by the respondent.
Senior counsel referred to Exhibit B certificate of occupancy issued to Tijani Babai and Exhibit C deed of conveyance between Tijani Babai and the appellant. He submitted that a certificate of occupancy is prima facie evidence of title in the grantee. He relied on several cases including Dabo V Abdullahi (2005) 2 SCNJ 76. He stressed the point that the respondent did not apply for the certificate of occupancy to be set aside and that the Court could not grant him that indulgence.
It was his further contention that the respondent ought to have joined Alhaji Tijani Babai and the Attorney – General as defendants, in whose absence issues pertaining to the ownership of the land and the issuance of the certificate of occupancy could not be effectually, effectively and completely decided.
In his response, counsel for the respondent argued that the trial Court was right in entering judgment in respondent’s favour as respondent’s evidence was not controverted by the appellant. He submitted that respondent’s plea and evidence as to purchase of the land and erecting of a house thereon were not denied in respondent’s pleading or evidence. He opined that the same was thus admitted, placing reliance on Osafile V Odi (1994) 2 NWLR (Pt. 325) 125. He further submitted that the root of respondent’s title having been admitted, he was under no obligation to prove how his grantor acquired the land.
Counsel submitted that there was no proof that the Plateau State Government acquired the land of the respondent. He emphasised that proof of acquisition of land is not by admission or oral evidence but by documentary evidence. He further submitted that respondent proved his title by acts of ownership, long possession and proof of ownership of adjacent land.
In respect of identity of the land, counsel stated that respondent claimed an area of 400 feet by 200 feet and that at the locus in quo the trial Court discovered that respondent?s claim was over an area of 200 feet by 200 feet and that appellant claimed the same portion of land. It was his submission that there was no issue joined as to the identity of the land.
Resolution
It is hackneyed postulation that in a claim for declaration of title to land, the onus is on the plaintiff who seeks the declaration to prove his entitlement to the claim. He must rely on the strength of his own case and not on the weakness of the defendant?s case except where such weakness supports or strengthens his case. See Kodilinye V Odu (1935) 2 WACA 336, Piaro V Tenalo (1976) 12 SC 31, Ngene V Igbo (2000) 4 NWLR (Pt. 651) 131 and Orianzi V Attorney ? General of Rivers State (2017) 6 NWLR (Pt. 1561) 224.
It is also well established that there are five ways of proving title to land in Nigeria, viz;
(i) By traditional history or evidence;
(ii) By production of document of title which must by duly authenticated;
(iii) By exercise of various acts of ownership, numerous and positive, extending over a length of time to warrant the inference that the person is the true owner of the land;
(iv) Acts of long possession and enjoyment of the land; and
(v) 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 Idundun v Okumagba (1976) 9 – 10, Ajibulu V Ajayi (2014) 2 NWLR (Pt. 1392) 483 and Orianzi v Attorney General supra.
The case of the respondent at the trial Court as pleaded in paragraph 3 of his statement of claim was that sometime in 1969, he acquired the land in dispute from one Alhaji Musa Karofi after paying Ten Shillings and one Cock. It was also his case that he took possession of the land, planted economic trees, farmed and built a house thereon in 1972.
The trial Judge at page 129 of the record in his judgment found those facts as established, stating that: it is not in doubt that the plaintiff since 1969 purchased the land in dispute from the customary owner MUSA KAROFI for a price of Ten Shillings and one male cork (sic) which for all intent and purposes is a potent trace of customary root of title.
It should be mentioned in passing that it is established that in a customary sale of land or in any other mode of sale, payment of purchase price plus possession given to the purchaser makes the purchaser to acquire an equitable interest in the property which ranks as high as a legal estate. SeeOhiaeri V Yussuf (2009) 6 NWLR (Pt. 1137) 207, 224 and Gbadamosi V Akinloye (2013) 15 NWLR (Pt. 1378) 455, 480.
Returning to the finding of the trial Court, it is noteworthy that the appellant did not raise any specific ground of appeal challenging the finding of the trial Court quoted above. The law is that a finding of Court not specifically appealed against remains binding and conclusive between the parties. SeeHeritage Bank Limited V Bentworth Finance (Nigeria) Limited (2018) 9 NWLR (Pt. 1625) 420, 436. What that means in relation to this matter is that it is binding and conclusive between the parties that the respondent purchased the land in dispute in 1969 from its customary owner.
The contention of appellant is that there is no plea as to how respondent’s vendor came to own the land. In paragraph 3 of the statement of claim, the respondent pleaded as follows:
The plaintiff avers that sometime in 1969, or there about he acquired a piece of land lying and situated along Gudi Road Keffi from one Alh. Musa Karofi after paying Ten Shillings and one male cork.
In his response in paragraph 2 of his statement of claim, the appellant averred:
2. The defendant is not in position to admit or deny paragraphs 3, 4, 5 and 6 of the statement of claim, except that he (defendant) bought a portion of land, measuring 100 x 50 from the plaintiff at N2, 500.00 as evidenced by a sale agreement dated 9/2/93.
Be it noted that the appellant did not even make the usual plea of general traverse that is common among pleaders. What I am trying to say is that the appellant did not challenge the title of respondent?s vendor and so the need to plead, and prove his vendor?s title did not arise. In Adole V Gwar (2008) 11 NWLR (Pt. 1099) 562, 592, Onu, JSC, stated that, this Court has held repeatedly that once a party pleads and traces his root of title to a particular source and the title is challenged, to succeed, he must also satisfy the Court as to the title of the source from whom he claims (underlining mine for emphasis)
In Aiyeola V Pedro (2014) 13 NWLR (Pt. 1424) 409, 447, Peter Odili, JSC, opined that,
‘Where a party has satisfied the Court as to his title to land in dispute, the Court need not inquire into the title of his predecessor – in – title. The party does not need to prove the title of his vendor except where it has become an issue’.
See also Osu V Nwadialo (2009) 12 NWLR (Pt. 1155) 286, 302.
I therefore agree with counsel for the respondent that there was no obligation on the respondent to prove the root of title of his vendor.
In paragraphs 7, 8 and 9 of the statement of claim, the respondent pleaded thus:
7. The plaintiff avers that sometimes (sic) in 1982, the then Plateau State Government decided to acquire the area for development as new extension of Keffi Government Reservation Area (GRA).
8. The plaintiff avers that the whole area was surveyed and plotted out, by the Bureau for Land and Survey and it was further decided that those already living in the plotted parcel of land be allocated such plots upon fulfilment of the necessary conditions.
9. The plaintiff avers that the portion he lived since 1972 fall within an area of two plots measuring 400 ft x 400 ft and now known as plot 391 which was allocated to him?.
The contention by respondent’s counsel that there is no proof of acquisition of the land is very curious. The respondent’s case as pleaded at the trial Court was that the Government acquired the land. The respondent even testified to that effect. He can not now seek to run away from it. This is even more so as the appellant admitted the same by non – denial. Parties are bound by their pleadings; they must be held to the case pleaded by them and will not be allowed to depart from the case in their pleadings and set up a different case in Court. This is so even at the appellate stage. See Yusuf V Adegoke (2007) 11 NWLR (Pt. 1045) 332 and Alao v Vice – Chancellor , University of Ilorin (2008) 1 NWLR (Pt. 1069) 421.
It is immaterial that an instrument of acquisition was not tendered. This is because:
(i) Being an admission against interest there was no need for any further proof;
(ii) Since the appellant had admitted the averment, the need to prove the same did not arise.
Appellant’s counsel raised several queries regarding the case of the respondent that the land that was acquired by the Plateau State Government was allocated to him. Some of the queries were:
(i) Why two plots of land should have only one number 391;
(ii) Why there was no layout plan to show that the land now occupied by respondent is plot 391;
(iii) Why there was no production of the instrument of the allocation to prove the allocation.
It is to be noted that all through the statement of defence, the appellant did not deny the averments of the respondent in paragraph 7, 8 and 9 of the statement of defence. The averments are therefore deemed to be admitted.
The need to lead any form of evidence to establish them did not therefore arise. The law is that an allegation of fact in a pleading which is not denied or traversed is taken to be admitted. See Economides v Thomopulus (1956) 1 FSC, Ogunleye v Oni(1990) LPELR ? 2342 (SC) 24 and Bayam v Agana (2010) 9 NWLR (Pt. 1199) 215. A fact that is admitted needs no further proof. See Section 123 of the Evidence Act, 2011 provides that,
‘No fact needs to be proved in any civil proceedings which the parties to the proceedings or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings.” See also RCC Limited v Rockonoh Property Company Limited (2005) 127 LRCN 1312, 1327.
The supplication of appellant’s counsel that Section 167 (d) of Evidence Act, 2011 be invoked against the respondent is therefore not well founded as there was no need to produce and tender any instrument of allocation as the fact of allocation of the land to the respondent had been admitted. There therefore arose no need to lead evidence in that regard.
I am not unaware of the position of the law that the Court does not make declaration of rights either on admission or default of pleading. See Wallersteiner v Moir (1974) 3 All ER 217 and Bello v Eweka (1981) 1 SC 101. It is my opinion that this position of the law does not apply to facts in the case which are admitted and which are not what is sought to be declared. In Ndayako v Dantoro (2004) LPELR 1968 (SC) the 1st – 5th respondents in paragraph 25 of their statement of claim pleaded that three kingmakers constituted a quorum for the purpose of selection of a traditional ruler. The 6th and 7th respondents admitted the averment. It was submitted that since (1st ? 5th) the respondents were seeking for declaratory reliefs, an admission could not sustain such a relief. Edozie, JSC, agreed that the Court does not grant declaration of rights in default of defence or indeed admission without hearing evidence and being satisfied by such evidence. His Lordship however opined at P. 22 of the electronic report that,
It is evident that by that relief, the respondents did not specifically seek a declaration that three king ? makes constitute a quorum for the purpose of the selection of the Emir of Bogu. Therefore the admission by the appellants above is full proof of the fact for it is well established that what is admitted needs no further proof
None of the admissions referred to in this judgment is a part of what was sought to be declared in the instant matter. They therefore constituted full proof of the facts.
In paragraph 8 of the statement of claim, it is pleaded that those already living in the plotted parcels of land were to be allocated such plots upon fulfilment of the necessary conditions. Appellant’s counsel, relying on Order 19 Rule 6 of the Civil Procedure of the High Court of Nasarawa State, submitted that since the respondent did not plead distinctly those conditions precedent to the re – allocation of the land to him, it was fatal to his case. Given the admitted and therefore established fact of the re- allocation of the land to the respondents, there is a presumption that whatever the conditions might have been, they had been satisfied; otherwise the land would not have been re – allocated to him. This is based on the presumption of regularity of judicial or official acts, which is codified in Section 168 (1) of the Evidence Act, 2011.
Senior counsel for appellant submitted that the respondent only applied to be allocated land. He based his submission on a document found at page 27 of the record of appeal. The document was not tendered and admitted in evidence as exhibit. It cannot therefore be countenanced by this Court. The law as stated in Kekong v State (2017) 18 NWLR (Pt. 1596) 108, 141 ? 142 by Eko, JSC, is that only documents tendered as exhibits are evidence before the Court, and that the Court cannot act on or utilize any document or fact that is not evidence before it in the determination of any disputed facts or matter before it.
The case of the appellant was built in a great part on Exhibit B, Certificate of Occupancy No. PL. 2794 dated 7/2/1991 issued to Tijani Babai and Exhibit C ? a deed of conveyance between Alhaji Tijani Babai and the appellant evidencing the payment of N40, 000:00 by appellant to Alhaji Tijani Babai over the land numbered as Plot 391.
Regarding exhibit B which was issued over the land in dispute ? plot 391 ? the trial Court stated at page 128 of the record of appeal as follows:
If the Defendant had conceded ownership of the land in dispute to the plaintiff up to 1993, it becomes questionable how in 1991 DW1 got a right of Occupancy on the same lane without showing any root of title.
In the case of Madu v Madu (2008) LPELR 1806 (SC) 35 Onu, JSC, stated that
‘A certificate of occupancy issued by a competent authority’ raises the presumption that the holder is the owner of the land in respect thereof. A certificate also, be it noted, raises the presumption that at the time it was issued, there is not in existence a customary owner whose title has not been revoked. The presumption is only rebuttable if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy.’ See also Ezeanah v Atta (2004) 2 SCNJ 200 and Dabo v Abdullahi (2005) LPELR 903 (SC).
However, it must be stated that merely being in possession of a certificate of occupancy is not conclusive evidence of title. SeeAtanda v Iliasu (2012) LPELR – 1966 2(SC) (or (2013) 6 NWLR (Pt. 1351) 529.
In the case of Ogunleye v Oni (1990) LPELR 2342 (SC) Pp 43 – 44, Obaseki, JSC, considered Section 34 of the Land Use Act, 1978 and stated that, It should be clear from the provisions of that section that any person without title to a parcel of land in respect of which the certificate of occupancy was issued acquires no right or interest which he did not have before. Furthermore the certificate can not stop the Court from enquiring into the validity and existence of the title the person claims to possess before the issue of the certificate
It should be re – stated that it is established or was held by the trial Court that:
(i) the respondent bought the land in 1969 from the Customary owner, Alhaji Musa Karofi;
(ii) he (the respondent) went into possession and built a house thereon in 1972;
(iii) the Plateau State Government acquired the land in 1982 and re ? allocated the same to the respondent;
(iv) he applied for a Certificate of Occupancy in 1982; and
(v) he also gave and sold portions of the land in 1992 and 1995 to Sunday Chinas and the appellants, respectively.
By the foregoing particularly number (i) ? (iii) respondent demonstrated that he had a deemed right of occupancy over the land in dispute since his interest pre ?dated the Land Use Act which came into force in 1978. The grant of Exhibit B (the certificate of occupancy) to DW1 ? Alhaji Tijani Babai in 1991 was done when there was respondent?s subsisting right which had not been revoked. In Ilano v Idakwo (2003) 11 NWLR (Pt. 830) 53, 83, it was held by the Supreme Court that,
‘Where there is a subsisting right of occupancy, it is good against my other right. The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid See also Gbadamosi v Akinloye supra. 479 15, Dantsoho v Mohammed (2003) 6 NWLR (Pt. 817) and Ogunleye v Oni supra.
Indeed Abiru, JCA, in Ma?azu v Unity Bank Plc (2014) 3 NWLR (Pt. 1395) 512, 545 described a statutory right of occupancy issued in the circumstances referred to above as
a worthless document.’
Exhibit B therefore is a worthless document and the trial Court was right to disregard it. It is immaterial that the respondent did not ask for the setting aside of exhibit B as one of his reliefs. In Omiyale v Macaulay (2009) 7 NWLR (Pt. 1141) 597, there was no relief for the setting aside of the statutory right of occupancy granted by the Lagos State Government to the appellant without revoking the interest of the respondent and appellant?s counsel contended that this Court erred in pronouncing the certificate of occupancy (Exhibit K) issued to the appellant by the Lagos State Government, as invalid. Oguntade, JSC, at P. 620 answered as follows:
‘If, on the state of the law, the said exhibit k has no evidential value, it was the duty of the Court below to say so. I do not therefore see that the Court below was wrong in doing what was clearly its duty.
In that case, the Lagos State Government that issued the Certificate of Occupancy was not a party in the case yet the Court of Appeal held the document to be invalid and the Supreme Court affirmed the decision. This answers the contention of appellant?s counsel that the Attorney – General of Plateau State ought to have been made a party to the suit before the trial Court could pronounce on the validity of Exhibit B. The document was tendered as an exhibit. The trial Court was right to express its view on the weight to be attached to it without the need to join the Attorney General or even DW1 to whom it was issued as a party. In the case of DW1 he had transferred the right of occupancy to the appellant and so the idea of joining him did not arise. This is moreso as he was a witness in the case.
Appellant’s counsel contended that the area of the land to which the declaration of title could be attached was not identifiable. Counsel for the respondent answered by stating that the identity of the land was not an issue and was well known to the parties.
The first duty of a party who claims for declaration of title to land and injunction is to properly identify the area to which his claim relates. The land must be identified with certainty. See Dada v Dosunmu (2006) 9 SCNJ 31. Where there is no issue joined in the pleadings by the parties as to the identity of the land, the identity of the disputed land is not a question in issue and does not require proof. This is even more so where, as in this instance, the parties know the land and the trial Court visited the locus in quo. See Nwokidu v Okanu (2010) 3 NWLR (Pt. 1181) 362, 392 and 393, Ilano v Idakwo supra. and Gbadamosi v Dairo (2007) 145 LRCCN 508, 519. It must also be remembered that the appellant filed a purported counter ? claim. It is my view that the identity of the land in dispute was not an issue.
Nevertheless, there is an aspect of the point that calls for close consideration. By his evidence, the portion of land the respondent has been living since 1972 and which was allocated to him fell within an area of two plots measuring 400ft by 200ft. (In his pleading, it is stated as being 400ft by 400ft). Out of that area, he sold a portion measuring 50ft by 50ft to Sunday Chinas in 1992. He also sold another portion measuring 100ft by 50ft to the appellant. By simple arithmetical calculation, the respondent in total excised a portion measuring 150ft by 100ft from his original holding.
26
The portion left for him therefore measures 250ft by 100ft. The trial Judge visited the locus in quo and recorded the dimension of the land to be 200ft by 200ft; but it must be stated that visit to locus in quo is not meant to substitute the eyes for the ear but rather to clear any doubt or ambiguity that may arise in the evidence or to resolve any conflict in the evidence as to physical features. See Atanda v Iliasu supra. What I am trying to say is that the area of land that the respondent would ordinarily be entitled to if his claim succeeds would be 250 feet by 100 feet. In a claim for declaration of title to land, the Court may grant declaration over a smaller area than that claimed if the evidence before the Court justifies it. See Aiyeola v Pedro (2014) 13 NWLR (Pt. 1424) 409, 439 and Yakubu v Jauroyel (2014) 11 NWLR (Pt. 1418) 205, 227.
Respondent pleaded and led evidence to the effect that while processing his application for Certificate of Occupancy one Musa Na Turaki, who inherited the estate of Alhaji Musa Kanyi, the customary owner, demanded for compensation as it was not paid by Government. He again paid N2000 to Musa Na Turaki.
Senior counsel for the appellant submitted that it suggests two possibilities viz; (i) that respondent?s vendor did not have land in the area (ii) he exceeded the land sold to him by his vendor. There was no response by respondent?s counsel, which amounts to conceding the point. Nevertheless, I shall still consider the point.
It is curious that the Ministry of Lands, Survey and Town Planning informed the appellant of the phantom superior title of Alhaji Tijani Babai by virtue of the rootless right of occupancy issued on 7/2/91; yet officials of the Bureau of Lands, Survey and Town Planning witnessed the payment of compensation by the respondent over the same land to an entirely different person. There seems to be more to the transaction than meets the eye on the part of the Ministry of Lands. I say no more.
It must be remembered that Civil matters are decided on a balance of probability. When the evidence in favour of the respondent is put on the imaginary scale as against the evidence that is not favourable to him including the payment of compensation, it is my view that the scale tilts in his favour.
I therefore resolve issues 1 and 2 against the appellant and in favour of the respondent.
Issue 3
Whether the respondent proved his entitlement to damages awarded by the Court.
Senior counsel for the appellant submitted that in view of his arguments under issues 1 and 2, it could not be proper to award damages against the appellant. This, he stated, is because in question of trespass, the law ascribes possession to whoever has better title between the two disputants. He called in aid Orlu v Gogo ? Abite (2010) 1 SCNJ 322. He added that once the claim for title fails, the claim for possession must of necessity fail.
For the respondent, it was argued that in the event that issues 1 and 2 are resolved in favour of the respondent and the appeal is dismissed, the award of damages would be the proper thing to have been done.
Resolution
The argument of Senior Counsel for the appellant against the award of damages by the trial Court is based on this Court resolving issues 1 and 2 in appellant?s favour and holding that the appellant has better title. The tort of trespass is based on exclusive possession and where there are conflicting claims of possession of land, the law ascribes possession to the party with better title. This is because the law does not recognize or know of concurrent possession. See Orlu v Gogo – Abite supra. and Carrena v Akinlase (2008) 14 NWLR (Pt. 1107) 262, 283. Having resolved issues 1 and 2 against the appellant, the foundation of the Senior counsel?s contention has fallen apart and it therefore comes to naught.
I resolve issue 3 against the appellant.
On the whole, I find that the appeal is devoid of merit. I accordingly dismiss the same and affirm the judgment of the trial Court but with the size of the land the subject of the declaratory and injunctive reliefs being 250 feet by 100 feet.
The parties shall bear their costs.
JOSEPH TINE TUR, J.C.A.: I have read an advance copy of the determination by my learned colleague Ekanem, JCA.
The respondent initiated this suit before the High Court of Justice of Nasarawa State by a writ of summons on 4th May, 2007. Page 3-6 of the printed record contains the statement of claim which was in the course of proceedings amended. The defendant filed a statement of defence which was subsequently amended. Paragraph 20 of the Amended Statement plead the remedies claimed at page 31 lines 10-19 the following remedies:
That the defendant is aggrieved and claims that:
i. He (defendant) is the beneficial owner of the piece or parcel of land which he now occupies and entitled to seek and acquire the relevant documents from the relevant authorities in his own name.
ii. He is entitled to general damages of N500,000= (Five Hundred Thousand Naira) only from the plaintiff who has subjected the defendant to unnecessary pains and stress over a long period of time knowing that he (plaintiff) has no cause of action against the defendant?.
Section 294(2) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered as follows:
294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
318(1) In this Constitution, unless it is otherwise expressly provided or the con otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation?.
The intention of the National Assembly is that any determination by a Court established under this Constitution is a ‘decision’ under Section 36(1) and 294(1) of the Constitution to wit:
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
But in the Court of Appeal or the Supreme Court, it is either an ‘opinion’ or a ‘decision’ under Section 294(2) and (3) of the Constitution. Section 294(2) of the Constitution confers on any Justice that participated in hearing the appeal to adopt in writing the determination of any of the other Justices. There is no provision in the Constitution, the Court of Appeal Act 2004 (as amended) nor the Rules of Practice and Procedure for holding conferences by Justices after hearing the parties or their legal representatives argue the appeal since whether a conference is held or not, the Constitution permits each Justice to render an independent ?decision? or an ?opinion?. I have headed the determination of the issues arising in this appeal as a ?decision? to conform with the provisions of Section 294(2)-(3) and 318(1) of the Constitution.
The matter proceeded to hearing and conclusion.
Learned counsel submitted written addresses which the learned trial Judge considered before arriving at a decision on 14th December, 2012 at page 138 lines 4 to page 143 lines 1-7 of the printed record as follows:
‘Since defendant has failed to prove how the fresh filing of the suit instant has injured him, I am unable to hold that the action of the plaintiff as stated above amounts to abuse of Court process. I therefore hold that this action is not an abuse of Court process. On issue No. 4 formulated for determination as to whether the plaintiff has proved acts of trespass by the defendant over the disputed land, the question may be asked, what are the facts that can be said to constitute trespass by the defendant’.
It is evident that the plaintiff averred in paragraphs 20, 22, 23 and 29 of his statement of claim that the defendant trespassed over the disputed land, the above relevant paragraphs are reproduced below for ease of reference:-
20. The plaintiff avers that while waiting for the defendant to move out of the plot, the former traveled to Maiduguri where he spent 3 weeks and by the time he returned the defendant had entered a part of the land not sold to the defendant and completely destroyed 6 stands of palm trees and also packed away 4,517 mud blocks belonging to the plaintiff.
22. The plaintiff avers that he has on several times demanded from the defendant the return of the mud bricks or payment of its monetary value to no avail and that made the plaintiff to sue the defendant for trespass at Chief Magistrate Court, Keffi.
23. The plaintiff avers that the defendant again in June, 1997 cleared a portion belonging to him (the plaintiff) and cultivated same.
29. The plaintiff avers that the defendant has remained in continuous trespass on the land in dispute hence this suit.
It is clear that the above quoted paragraphs were not converted or specially denied by the defendant in his statement of defence and witness deposition on oath, same amounting to admission of the facts contained therein. (See the cases of Maliki Vs. Micheal Institute for Labour Studies (2009) and Asafa Ltd. Vs. Alraine Ltd. & 1 Or. 2002 (supra)). It is also not in doubt that at the visit of locus in quo the defendant admitted that he met the plaintiff on the land and admitted planting some mango trees on parts of the land not sold to him by the plaintiff (i.e. outside the 100ft by 50ft, and the plaintiff stated that these acts of trespass made him to first, report the incidence to the village head and when the defendant persisted in his acts, he sued him at the Magistrate Court and later to this Court.
This without doubt clearly established that the plaintiff was in actual possession and occupation of the remaining portions of the land not sold to the defendant at the time the defendant began and persisted in his trespass on same in 1996. Flowing from the above, what then does a party claiming damages for trespass needs to prove? The condition is succinctly put in the case of Babatola Vs. Oba Aladejana (2001) 6 NSCQR where the Supreme Court held as follows:
‘It is trite law that a party must succeed in identifying the land trespassed upon before his claim for damages can be considered. A party claiming damages for trespass has a duty to satisfy the Court that at the time of the alleged trespass he was in possession of the portion of the land in respect of which the trespass was committed
From the foregoing, I believe the plaintiff having clearly identified the land trespassed upon by the defendant and since I am satisfied and believe that the plaintiff was in possession of the land in respect of which the trespass was committed, I hold that the plaintiff has proved to my satisfaction that the defendant trespassed on the disputed land and so deserve award of damages. Having regard to the totality of evidence adduced and legal arguments advanced in this suit and since to my mind the plaintiff has proved and is entitled to the reliefs sought. I hold that the plaintiff has discharged the burden of proof placed on it to warrant the Court to give judgment in his favour and judgment is accordingly entered for the plaintiff and I grant plaintiff?s claims for declaration as follows:
a. It is hereby declared that the plaintiff is the rightful owner and entitled to right of occupancy over the plot of land measuring 400ft by 200ft lying and situate at GRA, Keffi to the exclusion of the defendant.
b. A declaration that the entry of the plaintiff?s land by the defendant without the plaintiff?s consent or permission amounts to trespass.
c. The sum of N100,000 (One Hundred Thousand Naira) only is awarded against the defendant as general damages for trespass on the plaintiff’s land.
d. That an order of perpetual injunction is hereby issued restraining the defendant, whether by himself, or their agents, servants, assigns or successor-in-title from trespassing or further trespassing upon the piece of land of the plaintiff lying, being and situate at GRA, Keffi, measuring 400ft by 200ft.
This is my judgment. Signed by Hon. Justice Simon O. Aboki Judge on the 14-12-2012?.
At the hearing of this appeal on 23rd January, 2019, the appellant relied on the issues formulated in the Amended Brief filed on 14th February, 2018 at page 2 paragraph 3.01 to wit:
From the judgment of the Court, the pleadings of the parties and the evidence led the following issues appear to arise for determination in this appeal:
i. Whether the respondent as plaintiff proved his title to the land in dispute as to entitle him to judgment.
ii. What is the effect of the Government acquiring all the interest in a piece of land and then granting a Right of Occupancy over same to another person?.
iii. Whether the respondent proved his entitlement to damages as awarded by the Court?.
The duty of an appellant is not only to appeal but to distill issues for determination as provided in Order 19 Rules 1-3(1) of the Court of Appeal Rules 2016 to wit:
1. This Order shall apply to all appeals coming from any Court or tribunal from which an appeal lies to this Court.
2. The appellant shall within forty-five days of the receipt of the record of appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in the appeal.
3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant?s view, the issues arising in the appeal as well as amended or additional grounds of appeal?.
The respondent?s duty is provided in Order 19 Rules 4(1)-(2) of the Rules supra:
4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3(1), (2), (3), (4), (5) and (6) of this Order?.
A merger of issues one and two formulated by the appellant for determination of the dispute or controversy will enable this Court to weigh the oral and documentary evidence and see which had weight to support the claims of either the appellant or the respondent. I shall adopt the issues formulated by the appellant for determination of this appeal for the sake of brevity. It is permissible in law to merge issues that overlap as held by the Supreme Court in Anie Vs. Uzorka (1993) 8 NWLR (pt. 309) 1 at page 16 paragraph ‘G’ and page 17 par. ‘G’. The grounds of appeal can at times be merged as well. See Kadiri Apampa Vs. The State (1982) 6 SC 47 at 55.
I do not need a detailed review of the facts and arguments of learned counsel but I shall highlight only what is relevant for the determination of this appeal. I refer to Abudu Gbadamosi Ijale Vs. B. A. Shonibare Privy Council Judgments (1841-1973) by Olisa Chukura SAN, 1980 edition page 947 at 948 per Lord UpJohn:
There were many issues of fact before the trial Judge but only one relevant to this appeal namely an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said, would contain entries relating to the transaction and would establish his case. The appellant denied the existence of any such book and the trial Judge decided this issue in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence.
Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal. In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or JUSTICES?.
I shall also refer to Odutola Holdings Ltd. & Ors. vs. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63 where Ejinwumi, JSC held at pages 79-80 to wit:
‘Against the reversal of this decision, the appellants have raised several issues which I have reiterated above already. But in my humble view, not all the issues raised are necessary for the determination of the appeal. This is because several of the issues raised by the appellants and which the Court below made pronouncements upon did not flow from the ruling given by the trial Court in respect of the application brought before it by the respondents.
After a careful perusal of the judgment of the Court below, the grounds of appeal filed against that decision and the subject matter of the application that led to the ruling of the trial Court, it is my respectful view that the only issue that are germane to this appeal are the 1st and 5th issues filed by the appellants. As the issues raised by the respondents are not dissimilar, they will be considered in the light of the arguments advanced in the consideration of the merits of the appeal.’
The learned trial Judge had before him the pleadings, oral and documentary evidence coupled with the addresses of the legal representatives. The learned trial Judge observed the demeanor and assessed the credibility of the witnesses and evaluated the oral and documentary evidence supported by a plethora of decisions emanating from superior Courts of record. The parties and their legal representatives and the Court conducted proceedings at the locus in quo. The learned trial Judge observed at page 99 lines 14-16 of the decision that, At the locus in quo the Court noticed that the defendant had developed the land as pleaded by him. There is no appeal on this vital findings of fact by the learned trial Judge.
Trespass is a violation of a possessory right and does not generally involve title to land. see Omoni Vs. Biriyah (1976) 6 SC 49 at 54-55. See Odjevwedje Vs. Echanokpe (1987) 3 SCNJ 51 and Obioha Vs. Duru (1994) 8 NWLR (pt. 365) 631 at page 648. Where one of the claimants is shown not to be the owner, his acts on the land in dispute becomes those of a trespasser. See Ogbechie Vs. Onochie (1988) 2 SCNJ 170; Fasoro Vs. Beyioku (1988) 4 SCNJ 23 and Balogun Vs. Dada (1988) 2 SCNJ 104. Trespass is a wrong against possession not title. See Balogun Vs. Labiran (1988) 3 NWLR (pt. 80) 66 at 82. The competing title of a claimant is put into consideration if the defendant in possession also claims the land in dispute. The ‘land in dispute’ is that which is being claimed by the claimant and the defendant. But a defendant’s acts of trespass should not be elevated to acts of possession. See Aboyeji Vs. Momoh (1994) 4 NWLR (pt. 34) 464 and Chukwueke vs. Okoronkwo (1999) 1 SCNJ 44 at 54. The learned trial Judge compared and contrasted the oral and documentary evidence pleaded by the parties before finding in favour of the respondent. Proof of ownership in such a circumstance is proof of title. See Badejo Vs. Sawe (1984) 6 SC 350 at 353. Possession is title. SeeAdesanya Vs. Otuewu (1993) 1 SCNJ 77 at 114-119; Aromire Vs. Awoyemi (1972) 2 SC 1 at 10.
Order 4 Rule 9(1)-(3) of the Court of Appeal Rules 2016 provides as follows:
9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question, and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder?.
The appellant has not shown any substantial wrong or a miscarriage of justice by the learned trial Judge to sway the mind of this Court to interfere with the findings of fact and the verdict of the learned trial Judge in favour of the appellant in this circumstance. I resolve issues one and two against the appellant.
ISSUE THREE: DAMAGES
The award of damages is no longer a matter to be derived from principles enunciated by jurists from times past or derived from decisions of superior Courts of record that were rendered before the Court of Appeal Rules 2016 came into effect on 1st December, 2016. The award of damages from 1st December, 2016 is governed by the provisions of Order 4 Rule 9(4)(a)-(b) of the Court of Appeal Rules 2016 to wit:
(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial ?
a) substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;
b) reduce or increase the sum awarded by the Court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded. But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.
This Court resolved issues one and two against the appellant and would not order a new or a retrial hence, by the provisions of Order 4 Rule 9(4)(b) of the Court of Appeal Rules 2016, the Court shall not have power to reduce or increase the damages awarded by the Court below?. The onus of showing that the award of damages by the Court below in favour of the respondent to be paid by the appellant is excessive has not been discharged in this appeal by the appellant. The learned trial Judge gave adequate reasons for the award of damages at page 142 lines 3 to page 143 lines 1-7 of the printed record. Paragraph 31 pages 13 to page 14 of the printed record pleaded the reliefs the respondent was seeking from the Court below as follows:
a. A declaration that he is entitled to the ownership and or Right of Occupancy of a plot of land measuring 400ft by 200ft situate at GRA Keffi to the exclusion of the defendant.
b. A declaration that the entry of the plaintiff?s land by the defendant without the plaintiff?s consent or permission amounts to trespass.
c. N500,000 as general damages for trespass.
d. A perpetual injunction restraining the defendant, his agents or privies from further trespass unto the said plot of land?.
The law was that a Court can award less but not more than what a party claims. But that is no longer so because of the provisions of Order 4 Rule 9(a) or (b) of the Court of Appeal Rules 2016. The issue of an award of damages is still left to the judicial discretion of the Court of Appeal to be exercised judiciously in accordance with the provisions of Order 4 Rules 9(4)(a) or (b) of the Court of Appeal Rules 2016. I am of the candid opinion that the appellant has failed to show any substantial wrong or a miscarriage of justice occasioned by the learned trial Judge to warrant this Court to interfere with the award of damages in favour of the respondent.
General or nominal damages does not mean a ?meagre? award. This was explained in The Mediana (1900) A.C. 113 at 116 as follows:
Where by the wrongful act of one man something belonging to another is either itself so injured as not to be capable of being used or is taken way so that it cannot be used at all, that of itself is a ground for damages.
And, my Lords, here I wish, with reference to what has been suggested at the bar, to remark upon the difference between damages and nominal damages. ‘Nominal damages’ is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term ‘nominal damages’ does not mean small damages.
The extent to which a person has a right to recover what is called by the compendious phrase damages, but may be also represented as compensation for the use of something that belongs to him depends upon a variety of circumstances, and it certainly does not in the smallest degree suggest that because they are small they are necessarily nominal damages. Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such things. What manly mind cares about pain and suffering that is past? But nevertheless the law recognizes that as a topic upon which damages may be given.?
Order 20 Rule 11(1)-(2) of the Court of Appeal Rules 2016 provides that:
(1) The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.
(2) The powers contained in sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained Of the decision”.
I award Two Hundred Thousand Naira (N200,000.00) cost to the respondent On the whole, I resolve issue three against the appellant. The appeal lacks merit and is dismissed.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Judgment just delivered by my Learned Brother, Joseph Eyo Ekanem, JCA, dismissing this appeal. I agree completely with the reasoning and conclusions of my Learned Brother, which I adopt as mine. I will only make few comments in support.
A Certificate of Occupancy is prima facie proof of title io the land over which it was issued. 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 said Certificate of Occupancy is set aside or it gives way to a better title; Ilona v Idakwo (2003) LPELR-U96(SC); Madu v Madu (2008) 2-3 S.C. (PT 11) 109, (2008) LPELR-1806(SC); Otukpo v John (2012) LPELR-25053(SC). A certificate of occupancy is not conclusive proof of title to land. In Adole v Gwar (2008) LPELR- 189(SC) at page 17 of the E-Report, the Supreme Court, per Onu, JSC said:
“A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void. See Mohamoud J. Lababedi v Lagos Metal Industries (Nig) Ltd(1973) NSCC 1 at 6.”
Thus, a Certificate of Occupancy, properly issued, raises the presumption that at the time it was issued, there was not in existence a customary owner whose title had not been revoked. This presumption is however 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, the Certificate of Occupancy would be without value and would be revoked; Madu v Madu (supra) at page 24 of the E-Report; Omiyale v Macaulay (2009) LPELR-2640(SC), (2009) 7 NWLR (PT 1141) 597; Otukpo v John (supra); Orianzi v AG, Rivers State (2017) LPELR-41737(SC). In his contribution to the lead Judgment in Omiyale v Macaulay (supra), Ogbuagu, JSC said, pages 40 ? 41 of the E-Report:
“The prerequisite for a valid grant of a Certificate of Occupancy, is that there must not be in existence, the valid title of another person with legal interest in the same said land at the time the certificate was issued… For a certificate of Occupancy under the Act to be therefore valid, there must not be in existence at the time the certificate was issued, a Statutory or Customary owner of the land in issue or dispute who was not divested of his legal interest to the land prior to the grant. In other words, where a Certificate of Occupancy has been granted to one of two claimants who has not proved a better title (as the Appellant), it must be deemed to be defective, to have been granted or issued erroneously and against the spirit of the Act and the holder (such as the Appellant) would have no legal basis for a valid claim over the land.”
The evidence on record reveals that the grant of the certificate of occupancy, Exhibit B, to DW1 was done when the Respondent’s subsisting deemed right of occupancy over the land had not been revoked. The said Exhibit B was therefore of no value. DW1 who had transferred the said right of occupancy to the Appellant hence had nothing to transfer. The Appellant held a worthless document.
For these reasons and for the fuller reasons given in the lead Judgment, I also dismiss this unmeritorious appeal and abide by the orders made by my learned Brother.
Appearances:
Oba Maduabuche, SAN with him, Chief F.S. TengaFor Appellant(s)
B.S. Gabriel, Esq. holding brief for Isaac Paul, Esq.For Respondent(s)
