BILLY GRAHAMS HARUNA v. BASHIR KALLI & ANOR (2019)

BILLY GRAHAMS HARUNA v. BASHIR KALLI & ANOR

(2019)LCN/13448(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of June, 2019

CA/J/115/2018

RATIO

INTERPRETATION OF STATUTES: HOW THE LAND USE ACT MUST BE INTERPRETED

In the recent decision of the Supreme Court in Ibrahim Vs Obaje (2019) 3 NWLR (Pt. 1660) 389 at 394 it held that the application of the various Sections and provisions of the Land Use Act must be done with a view to the intendment of the drafter of the law, which is expressed often in the preamble. The Apex Court went further to say that it is not the intendment of the Legislature that Section 22 of the Land Use Act, on consent, would limit and deny parties of their right to use and enjoy land and fruits thereto. In a non contentious transaction or alienation, it held that Section 22 of the Land Use Act cannot be given a literal interpretation in view of the preamble to the Act. The phrase the enjoyment of the land and the fruits thereof in the preamble to the Land use Act should be given a simple and ordinary interpretation.
Karibe-whyte JSC in Abioye Vs Yakubu (1991) 5 NWLR (Pt. 190) 130 at 231 para. C; F said:
In construing a law like the Land Use Act, it is always of considerable assistance to consider the history and also purpose of the law as enshrined in its preamble and if possible the social objectives. The intention of the Act as clearly stated is to assert and preserve the rights of all Nigerians to the land of Nigeria in the public interest. It is also in the Public interest that the right of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof to sustain themselves and their families should be assured, protected and preserved.”PER TANI YUSUF HASSAN, J.C.A.

LAND LAW: 5 WAYS BY WHICH TITLE TO LAND CAN BE PROVEN
See Eyo Vs Onuoha (2011) 11 NWLR (Pt. 1257) 1; Edosa Vs Ogiemwanre (2011) 15 NWLR (Pt. 1270) 284 and Jiya Vs Awumi (2011) 4 NWLR (Pt. 1238) 467.

There are five ways of proving title to land. They are:
(a) By traditional evidence
(b) By production of documents of title
(c) By proving act of ownership numerous and positive enough to warrant an inference that the person is the true owner.
(d) By proving act of long possession and enjoyment of the land.
(e) By proof of possession of connected or adjacent land.
See Idundun Vs Okumagba (1976) 9-10 SC 227 and Akaose Vs Nwosu (1997) 1 NWLR (pt. 482) 478.PER TANI YUSUF HASSAN, J.C.A.

LAND LAW: SALE OF LAND AGREEMENT MUST BE IN WRITING SO AS TO BE ENFORCEABLE
It is the law that a sale of land agreement, to be enforceable must be in writing. When there is no written agreement, the claim must fail.PER TANI YUSUF HASSAN, J.C.A.

JUSTICES

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

Between

BILLY GRAHAMS HARUNA Appellant(s)

AND

1. BASHIR KALLI
2. YARO MOHAMMED DANTANI Respondent(s)

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the Borno State High Court delivered on the 27th day of February, 2017 by Hon. Justice A. Z. Mussa in suit No. BOHC/MG/CV/13/2015.

Briefly the facts of the case are that the Appellant is claiming for a declaration of title and injunction in respect of a land, plot No. 276, BOTP/122 covered by a Right of Occupancy No. BO/16632/7. The Respondents also counter claimed for the same reliefs over the same land. Both parties are claiming the land on purchase.

The Appellant as claimant at the lower Court, by Amended Writ of Summons and Statement Claim, claimed against the Respondents as Defendants as follows:
(i) A declaration that the Claimant is entitled to the right and interest in the land in dispute known and described as plot No. 276, BOTP/122 covered by Right of Occupancy No. BO/16632/7.
(ii) An order of injunction restraining the Defendant or anybody through whom he is claiming or his heirs, representatives, executors and assigns from further entry into the land in dispute.
?(iii) N1,000,000.00 (One Million Naira) only as

general damages.
(iv) Cost of this suit.

The first claim of the Appellant before the lower Court was for a declaration of ownership of the land in dispute. To succeed in a claim of ownership of land, the law is settled that the Court must be satisfied as to the nature of title claimed, whether it is a title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession and evidence establishing the nature of title claimed see Okelola Vs Adeleke (2004) 13 NWLR (Pt. 890) 307 and Ajiboye Vs Ishola (2006) 13 NWLR (Pt. 998) 628.

The Appellant?s claim as contained in paragraph 3 of his amended statement of claim was that sometime in the year 2007, he purchased the land in dispute through his friend Richard Balami from one Grema Asumawu at the cost of N400,000.00. The transaction was evidenced by a sale agreement between the Appellant and Grema Asumawu.
?
The Respondents in their joint statement of defence counter claimed that the land in dispute was sold by the original grantor to Alhaji Ibrahim Amsami who also sold to Shettima Bukar Barma and Shettima Bukar Barma in turn sold to the 2nd Respondent.

The Appellant filed an amended defence to the counter claim. The matter proceeded to trial. The trial Court at the conclusion of the case, in its judgment delivered on the 27th of February, 2017, dismissed the Appellant?s claim and also the Counter Claim of the Respondents for failure to obtain the Governor?s consent in the transactions.

Dissatisfied with the judgment of the lower Court, the Appellant appealed to this Court vide the Notice of Appeal dated 2nd day of May, 2017 containing three grounds with their particulars and reliefs sought.

In compliance with the rules of Court, parties exchanged their respective briefs of argument.

The Appellants brief of argument was dated 25th day of June, 2018 and filed on the 27th June, 2018. The brief settled by Nankham Ayuba Dammo has a sole issue distilled for determination as follows:
1. Whether in the circumstances of the pleadings and the evidence, the lower Court was right in dismissing the Appellant?s Claim.? (Grounds 1, 2 and 3)

The Respondents brief dated 26th October, 2018 and filed on 29th October, 2018 but deemed filed on 1st March,

2019, settled by Hussaini Hala Esq., has two issues formulated for determination which read:
1. Whether the trial Court was right to hold that failure of both the Appellant and Respondents to obtain the Governor?s consent to assign as provided by Section 22 of the Land Use Act, 1978 in the course of their respective contract of sale transaction stages renders both the Appellant?s transaction and the Respondents? transaction null and void as provided by Section 26 of the same Act.? (Ground 1)
2. ?Whether the trial Court was right to hold that the Appellant did not adduce credible evidence to establish his entitlements to the reliefs claimed.? (ground 2)

The Appellants Reply brief was dated 5th day of March, 2019 and filed on 11th March, 2019. The Respondents? issues are apt. I adopt them for determination of this appeal, but issue one is reframed to read thus:
ISSUE ONE
?Whether the trial Court was right to hold that failure of both the Appellant and the Respondents to obtain Governor?s consent to assign as provided by Section 22 of the Land Use Act, 1978 renders their

transactions null and void pursuant to Section 26 of the same Act.?

In arguing this issue, learned Counsel for the Appellant submitted that contrary to the decision of the lower Court that failure to obtain the consent of the Governor as required under Section 22 of the Land Use Act, invalidates the transactions entered into by the Appellant, it has been held that the fact of not obtaining the consent of the Governor does not in itself invalidates the sale agreement leading to the title of the purchaser. On this submission, Counsel relied on the cases of Adetuyi Vs Agbojo (1997) 1 NWLR (Pt. 484) 705 at 717; Awojugbagbe Light Industries Ltd vs Chinukwe (1993) 1 NWLR (Pt. 270) 485 and Solanke Vs Abed (1962) NRNLR 92. That the trial Court was wrong when it held that consent of the Governor must be obtained to make the transaction valid. We are urged to hold that the trial Court erred when it held the Appellant?s transaction as null and void.

For his part, learned Counsel for the Respondents submitted that the trial Court was wrong to hold that failure to obtain the Governor?s consent renders the parties respective sale transactions null

and void. That the provision of Section 22 of the Land Use Act, 1978 does not prohibit the holder of a statutory Right of Occupancy from entering into some form of negotiations which may end with a written agreement for presentation to the Governor for his consent.

Relying on the case of Ilori Vs Ishola (2018) 3 MJSC (Pt. 1) 1 at 37 para. G. and Awojugbagbe Light Industries Ltd Vs Chinukwe (1995) 4 SCNJ 162 at 183 paras 5-10, it is submitted that, it is after the parties have agreed that the Deed of Assignment is prepared and sent for Governor?s consent. That the sale agreement is valid and not contrary to Section 22 of the Land Use Act. He referred to Yaro Vs Arewa Construction Ltd (2007) 10 MJSC 186 at 213 paras, D-E and International ile Industries (Nig.) Ltd Vs Aderemi (1999) 6 SCNJ 46 at 63 paras 5-15.

We are urged to hold that the trial Court?s holding that the transactions of both parties is null and void is of no moment.

The Appellants reply brief on this issue is discountenanced. This is because the Respondent?s issue one arose from the decision of the trial Court and covered by ground one of the Notice of

Appeal. The Appellant?s Counsel was only being technical when he submitted that the issue does not emanate from any of the grounds of appeal filed by the Appellant. Both issue one of the Appellant and issue one of the Respondents relates to the dismissal of their claims for failure to obtain Governor?s consent by virtue of Section 22 of the Land Use Act, 1978. While issue one of the Appellant referred to the dismissal of the Appellant?s claims alone, the Respondents issue one relate to the dismissal of both the Appellant?s and the Respondent?s Claims and that is why I adopted the Respondents? issues as apt, because it covers the decision of the trial Court in relation to the dismissal of the claims of both parties. I therefore hold issue one of the Respondents as competent having arose from ground one of the Notice of appeal.

The essence of reply brief is to respond to new issues or points which arose from the Respondents brief but not an avenue for attacking an issue for determination. The reply brief is a misconception of the law and it is discountenanced.

In determining this issue, I seek to say more importantly

that I have perused the entire pleadings of the parties i.e. the Amended Statement of Claim of the Appellant and the Joint Statement of Defence of the Respondents at pages 3-6 and 40-46 of the record respectively. The assertion on the absence of consent sought and obtained from the Governor was not made part of the pleadings of the parties. This issue was suo motu raised by the trial Court. The Court is enjoined to resolve dispute between the parties as presented by them and not to make a case for either or both, different from the initial case set out before the Court. See N.H.D.S. Ltd. Vs Mumuni (1977) 2 SC 57 and G.S. Pascutto Vs Adecentro (Nig.) Ltd (1997) 11 NWLR (Pt. 529) 467.

In the case at hand it is revealed on record that the parties entered into purchase of the land in dispute as private individuals which is evidenced by sale agreement respectively. It will not be out of place to reproduce Section 22(1) of the Land Use Act, 1978 under which the trial judge dismissed the Appellant?s claims and Respondents Counter Claim.
By virtue of Section 22(1) of the Land Use Act, 1978, it shall be unlawful for a holder of a right of

occupancy to alienate same or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the Governor first had and obtained.
In the recent decision of the Supreme Court in Ibrahim Vs Obaje (2019) 3 NWLR (Pt. 1660) 389 at 394 it held that the application of the various Sections and provisions of the Land Use Act must be done with a view to the intendment of the drafter of the law, which is expressed often in the preamble. The Apex Court went further to say that it is not the intendment of the Legislature that Section 22 of the Land Use Act, on consent, would limit and deny parties of their right to use and enjoy land and fruits thereto. In a non contentious transaction or alienation, it held that Section 22 of the Land Use Act cannot be given a literal interpretation in view of the preamble to the Act. The phrase ?the enjoyment of the land and the fruits thereof in the preamble to the Land use Act should be given a simple and ordinary interpretation.
Karibe-whyte JSC in Abioye Vs Yakubu (1991) 5 NWLR (Pt. 190) 130 at 231 para. C; F said:
In construing a law like the Land

Use Act, it is always of considerable assistance to consider the history and also purpose of the law as enshrined in its preamble and if possible the social objectives. The intention of the Act as clearly stated is to assert and preserve the rights of all Nigerians to the land of Nigeria in the public interest. It is also in the Public interest that the right of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof to sustain themselves and their families should be assured, protected and preserved.”
From the foregoing, the Act did not prohibit parties into entering a sale agreement before the Governors consent was sought and obtained.” See Ilori Vs Ishola (2018) 15 NWLR (Pt. 164) 77 at 81 and Awojugbagbe Ltd Vs Chinukwe (supra)
In the instant case, it is revealed on the record that Appellant purchased the land in dispute covered by Right of Occupancy No. Bo/16632/7 on BOTP/122, plot No. 276 from one Grema Asumawu sometime in the year 2007 in the sum of N400,000.00 and the sale agreement is Exhibit PW2A.
The 2nd Respondent also claimed to have purchased the land in dispute covered by

the same Right of Occupancy as that of the Appellant from one Shettima Bukar Barma as evidenced by Exhibit DW3D.
The Respondents are challenging the judgment of the trial Court for holding that failure to obtain the Governor?s consent renders the parties respective sale transactions null and void. The law is that the Respondents cannot challenge the judgment of the lower Court given in their favour without first filing a cross-appeal or a Respondents? notice. See Oguma Vs I.B.W.A. (1988) 1 NWLR (Pt. 73) 658; Eze Vs Obiefuna (1995) 6 NWLR (Pt. 404) 639; Ejura vs Idris (2006) 4 NWLR (Pt. 971) 538 and New Nigeria Bank Plc. Vs Egun (2001) 7 NWLR (Pt. 711) 1. In the instant case, the Respondents did not cross-appeal or file a Respondents? notice. In the circumstance, they are not entitled to proffer argument on this issue.
For the purpose of resolving this issue, it will be pertinent to resort to the preamble to the Land Use Act, 1978. Following from the foregoing re-statement in Abioye Vs Yakubu (supra), it is clear that the essence of the Act is to preserve and protect the rights of Nigerians to enjoy and use land and be

allowed to transact on their properties without unnecessary and undue interference by the state. The preambles to the Land Use Act, if looked at carefully and relating it to the instant case, would reveal that the provision for consent of the Governor must not be applied to transfer of title or alienation of rights between private individuals where there is no overriding public interest or conflict between the parties. It is paramount to give due respect to private contractual agreements, the parties having bounded themselves to the sale agreements. It is my opinion that private transactions conducted by the parties individually should not be affected by Section 22 (1) of the Land Use Act. I resolve the issue in favour of the Appellant.

ISSUE TWO
Whether the trial Court was right to hold that the Appellant did not adduce credible evidence to establish his entitlements to the reliefs claimed.?

The Appellant?s Counsel contended that the Appellant has established by undisputed evidence that he indeed purchased the property in dispute as evidenced by Exhibits PW2A and PW2B and was in occupation and possession of the land when the

Respondents encroached into the land. That the Appellant has by credible evidence established his entitlement to the ownership of the land. Relying on the cases of Nsiegbe vs Mgbemena (2007) 10 NWLR (Pt. 1042) 364; Okoye Vs Dumez (Nig.) Ltd (1985) 1 NWLR (Pt.4) 78 and Agboola Vs UBA Plc (2011) NWLR (Pt. 1258) 375 at 415, it is submitted that a purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument which has not been registered has acquired an equitable interest which is, as good as a legal estate. That such interest can only be defeated by a purchaser for value without notice of the prior equity.

Submitting further that evidence on record has shown that the Appellant having purchased and paid for the land, he took possession of same and fenced it. Reference was made to paragraphs 7 and 8 of the Appellant?s statement on oath at page 86 of the record. That the Appellant?s testimony was not discredited under cross examination as he maintained being in possession of the land in dispute.

Learned Counsel for the appellant argued that the Appellant has established an equitable title that is as good

as a legal estate which entitled him to reliefs claimed. We are urged to resolve in his favour.

Responding, learned Counsel for the Respondent submitted that the trial Court was right to hold that the Appellant/Claimant did not adduce credible evidence to establish his entitlement to the relief claimed. That, although both parties traced their title to a common root, it is the one that proves better title will be entitled to judgment in his favour.

Referring to the evidence adduced before the trial Court, it is argued that the Defendants/Respondents have established a better title than the Claimant/Appellant. The Court was referred to Okelola Vs Adeleke (2004) 10 MJSC 113 at 121 para. D and the Statement on Oath of the parties and their evidence under cross examination.

Counsel submitted further that there is no claim of buyers and sellers from the original holders of the grant i.e. ALHAJI ABBA KURA A.B.A. DOGO to the Claimant. That apart from the evidence of PW1 which was discredited under cross examination there is no evidence that linked the Appellant with the original holder of the grant.

It is finally submitted by Counsel for the

Respondents that the trial Court having held at page 150 lines 7-12 of the record that the Respondents have a better link to the original grantor, we are urged to invoke the provisions of Section 16 of the Court of Appeal Act and determine the suit based on the evidence adduced. He referred toA.G. Leventis Plc Vs Akpu (2007) 9 MJSC 134 at 147 paras. G.A and Dapianlong Vs Dariye (2007) 30 NSCQR (Pt. 2) 1022 at 1126-1127. We are urged to resolve in favour of the Respondents.

Both the Appellant and the Respondents put up their claims over the property in dispute. In his own version, the Appellant claimed that he purchased the land from one Grema Asumawu who derived his title from Engineer Hassan Bukar who also got the land from the original holder of the Right of Occupancy, Alhaji Abba Kura A.B.A. Dogo. The sale agreement between the Appellant and Grema Asumawu dated 7th day of March 2007 is Exhibit PW2A and the Right of Occupancy in the name Alhaji Abba Kura A.B.A. Dogo dated 24th April, 2004 is Exhibit PW2B.

For their part, the Respondents claimed that Alhaji Abba Kura A.B.A Dogo, the original allottee of the Right of Occupancy sold his land to one

Alhaji Ibrahim Amsami on 8th June, 2010 which sale agreement was reduced into writing. The said Alhaji Ibrahim Amsami sold the land to Shettima Bukar Barma which was also evidenced in writing. The said Shettima Bukar Barma also sold the land to the 2nd Respondent as reflected by the sale agreement at page 66 of the record. The land was sold to the 2nd Respondent in the sum of N1,200,000.00 (One Million, two Hundred Thousand Naira only) which he paid to the vendor. The Respondents averred that the said Alhaji Abba Dogo lost his original documents of the plot No. 276 covered by grant of Right of Occupancy No. BO.16632/7 situate at BOTP/122 which was reported to the Police and affidavit of loss of documents was issued to him by the High Court of Justice, Maiduguri dated 28th May 2010. Alhaji Abba kura A.B.A Dogo then applied for a replacement of the copies of his Right of Occupancy to the Ministry of Lands Survey, Maiduguri. He was issued with replacement copies of the grant and the certificate of Occupancy No. BO/16632/7. It was after getting the replacement copies that the said original allottee Alhaji Abba Kura A.B.A. Dogo sold the land.

Reading the record, the Appellant commenced this action in the lower Court for declaration of title and injunction. It was his case when he testified as PW2 that he bought a plot of land through Richard Balami from one Grema Asumawu sometime in 2007 at the cost of N400,000.00 (Four Hundred Thousand Naira only). The plot is covered by a Right of Occupancy No. BOTP/122, plot No. 276 file No. BO/16632/7. Upon investigation at the Ministry of Lands and Survey, he discovered that Grema Asumawu derived his title from Engineer Hassan Bukar who got the land from the original holder of Right of Occupancy in the person of Alhjai Abba Kura A.B.A Dogo. Three Exhibits tendered are the sale agreement between Grema Asumawu and Billy Graham Haruna (Appellant) i.e. Exhibit PW2A, Right of Occupancy No. BO/16632/7 as Exhibit PW2 and search report, Exhibit PW2C.

On completion of the transaction, Appellant said he fenced the land but later discovered that the defendants trespassed into his land and effort made to remove the Defendants/Respondents from the land was to no avail. He then reported the matter to the Borno State Ministry of Lands and Survey who summoned the parties for

intervention but that the Respondents continued with the act of trespass on the land, hence the institution of the action at the lower Court.

The 2nd Respondent testified as DW3 and his evidence is to the effect that he bought the land in dispute No. 276 BOTP/122 covered by Certificate of Occupancy No. BO/16632/7 from one Shettima Bukar Barma sometimes in the year, 2010. He told the Court that the original allottee of the land in dispute Alhaji Abba Kura A.B.A Dogo sold his land to Alhaji Ibrahim Amsami and the sale agreement is Exhibit DW3B, Alhaji Ibrahim Amsami sold the land to Alhaji Shettima Bukar Barma which is Exhibit DW3C and Alhaji Shettima Bukar Barma sold to the 2nd Respondent Yaro Mohammed Datani as evidenced by Exhibit DW3D.

In a claim for declaration of title, the onus lies on the claimant to satisfy the Court that he is entitled on the evidence adduced by him to the declaration. He must rely on the strength of his own case and not on the weakness of the Defendant?s case. If this onus is not discharged, the weakness of the Defendant?s case will not help him. See Eyo Vs Onuoha (2011) 11 NWLR (Pt. 1257) 1; Edosa Vs Ogiemwanre

(2011) 15 NWLR (Pt. 1270) 284 and Jiya Vs Awumi (2011) 4 NWLR (Pt. 1238) 467.

In the instant case, both the Appellant and the Respondents relied on the 2nd way of proving title to land, that is by production of documents of title in respect of their claims and counter claims. In the process, the Appellant produced Exhibits PW2A the Sale agreement between him and Grema Asumawu, PW2B the Original grant No. BO/16632/7 dated 26th June, 2004 and the search report dated 5th March, 2015 which is PW2C. From the evidence available at the lower Court, the Appellants case was built around Exhibits PW2A;

PW2B and PW2C. Exhibit PW2A is the Sale Agreement between Grema Asumawu and the Appellant. A careful look at Exhibit PW2B is the Original Right of Occupancy of the allottee. The Appellant in paragraph 5 of his statement on oath and paragraph 5 of his Amended Statement of Claim deposed that Grema Asumawu from whom he purchased the land derived his title from Engineer Hassan Bukar who got it from the original allottee. However there is no evidence of transaction between Engineer Hassan Bukar and Grema Asumawu placed before the lower Court. There is also no evidence of transaction between the original allottee and Engineer Hassan Bukar. Engineer Hassan Bukar testified as PW1, his evidence is to the effect that the original allottee of the land Alhaji Abba Kura A.B.A Dogo was indebted to him in the sum of 120,000.00 to which he compensated him with the land in dispute instead of the money. That the original allottee gave him the Right of Occupancy issued to him. He sold the land to Grema Asumawu in the year 2006 who also sold same to the Appellant in 2007. Both the original allottee Alhaji Abba Kura A.B.A Dogo and Grema

Asumawu are now late. Under cross examination PW1 admitted that the transaction between him and the original allottee was not reduced into writing and also the transaction between him and Grema Asumawu was also not reduced into writing as it was a mutual transaction.

It is the law that a sale of land agreement, to be enforceable must be in writing. When there is no written agreement, the claim must fail. In the instant case failure of the Appellant to produce evidence of transaction between the allottee and PW1 and sale agreement between PW1 and Grema Asumawu from whom the land devolved to him is fatal to his case. More so when evidence on record has shown that Exhibit PW2 is the original Right of Occupancy which PW1 handed to Grema Asumawu on purported purchase of the land and which document Grema Asumawu also passed to the Appellant upon purchase of the land. The question is how did PW1 come into possession of Exhibit PW2B when evidence available on record is that the original allottee lost the document and was issued with a replacement copy on application to the Ministry of Lands and Survey. In the instant case, what remained was mere oral evidence and

the evidence of sale agreement between the Appellant and Grema Asumawu. Where a claimant fails to prove his claim on a balance of probabilities, the proper order to make is a dismissal of his claim. Where a Claimant successfully proves his claim, the burden of proof would shift to his opponent. In the instant case it was the Appellant that initiated the action. The burden of proof is on him. There was counter claim from the Respondents.
The 2nd Defendant/Respondent who testified as DW3 produced Exhibits DW2A ? D as evidence of transactions of the land in dispute which devolved to him, in proof of his counter claim. A calm view of Exhibits ?DW2A-D? show that the 2nd Respondent has proved his root of title with a link between the original allottee and the purchasers of the land before it devolved to him as the last purchaser.?
The learned trial judge was therefore wrong when he dismissed the counter claim of the Respondents for non compliance with Section 22(1) of the Land Use Act. I have stated earlier in the judgment that the holder of a statutory Right of Occupancy is not prohibited by Section 22(1) of the Land Use Act from entering

into some form of negotiations which may end with a written agreement for presentation to the Governor for his consent and approval. This is because the Land Use Act does not prohibit a written agreement to transfer or alienate a land and there will be no contravention of Section 22(1) of the Act by the mere fact that such a written agreement is executed before it is forwarded to the Governor for his consent.
Having reached the conclusion that the Appellant did not prove his case on the balance of probabilities to entitle him to the reliefs sought which the trial Court also found in its judgment at page 150 of the record thus:
From the pleadings, exhibits tendered testimonies of witnesses and submissions of both learned Counsel herein, it is apparent that, the Claimant?s root of title seams hanging in the air and/or broken that no written link between the original holder (Alhaji Abba Kura A.B.A. Dogo) and Engineer Hassan Bukar (PW1).
In such a situation, the order of the lower Court would have been a dismissal of the Appellants claim, since it failed to do that, I am in a position by virtue of my power

under Section 15 of the Court of Appeal Act, 2016 to make such order. Accordingly I dismiss the Appellants Claims at the lower Court for failure to prove them on the balance of probabilities. I also invoke my power under the same Section 15 of the Court of Appeal Act and grant the counter claim of the Respondents at the lower Court; as follows:
1. The 2nd Defendant/Counter Claimant is the equitable and lawful owner of plot No. 276 BOTP/122 situate at Old G.R.A. Maiduguri covered by Right of Occupancy No. Bo/16632/7 having acquired same through purchase.
2. The Defendant to the Counter-claim is hereby restrained from encroaching into the said land No. 276 covered by Right of Occupancy No. BO/16632/7.
3. The Defendant to the Counter-claim by himself or through his agents, servants or privies are restrained from interfering with the 2nd Defendant/Counter Claimants peaceful possession of the land in dispute.
The appeal succeeds in part and it is dismissed substantially.

The judgment of the trial Court dismissing the Claims and Counter claim of the Appellant and Respondents respectively for non-compliance with the provision of

Section 22(1) of the Land Use Act, 1978 delivered on 27th February, 2007 in suit No. BOHC/MG/CV/13/2015 is hereby set aside
Parties to bear their costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I read in draft the judgment just delivered by my learned brother TANI YUSUF SANI, JCA. I agree with the conclusion reached thereat.
I abide by the consequential orders made in the lead judgment.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: My Lord, TANI YUSUF HASSAN, JCA obliged me with the draft of the leading Judgment delivered now.
I agree with His Lordship that being substantially unmeritorious, this Appeal should be dismissed.
?I also dismiss the Appeal and abide by the consequential orders contained therein including the order on cost.

Appearances:

N.A. Dammo, Esq. with him, D. Saleh, Esq. and L.S. Nshem, Esq.For Appellant(s)

T. A. Lenkat, Esq. for Respondents holding the brief of H. Hala, Esq.For Respondent(s)

Appearances

N.A. Dammo, Esq. with him, D. Saleh, Esq. and L.S. Nshem, Esq.For Appellant

AND

T. A. Lenkat, Esq. for Respondents holding the brief of H. Hala, Esq.For Respondent