ADEYEMI v. AKPA & ORS
(2022)LCN/16055(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 22, 2022
CA/ABJ/CV/808/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
SENATOR SMART ADEYEMI APPELANT(S)
And
1. ADAMU P. AKPA 2. MINISTER OF FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE ORDER OF NON-SUIT
Inevitably, a non-suit means giving the plaintiff a second chance to prove his case. The Court has to consider whether in this case that would be wronging the defendant and on the other hand whether a dismissal of the suit would be wronging the plaintiff. See the cases of Elufisoye v. Alabetutu (1968) NML 298 and Azubike Ume & Ors v. Alfred Ezechi & Ors (1964) 1 WLR 701.
In our law, non-suit is discretionary. The position is that an order of non-suit is not granted just for the asking or as a matter of course. It is one that can only be properly made upon the dictates of justice to both sides, when upon a calm and full view of the scale of the case in favour of either side, the Court can say that no side is entitled to win. The Court must therefore, be satisfied that the circumstances of the particular case deserves such an order. This is because an order of non-suit is that order which terminates the plaintiff’s case without a decision or pronouncement on its merits or which did not adjudicate all relevant issues on merit. See Craig v. Craig (1967) NWLR 52, Ugbodume v. Abiegbe & Ors (1991) 8 NWLR (Pt. 209) 261, Chikere v. Okegbe (2000) 12 NWLR (Pt. 681) 274.
In the case of Egbuchu v. Continental Merchant Bank Plc & Ors (2016) LPELR – 40053 (SC), the Supreme Court Per Kekere-Ekun, JSC, at page 12 paras B – E, held that the circumstances when an order of non-suit would be made are: “a. where the plaintiff has not failed in toto or entirely to prove his case; b. where the defendant is not in any event entitled to the Court’s judgment; and c. where no wrong or injustice to the defendant would be caused by such order”. Flowing from these, it is now undoubtedly settled that a plaintiff who has failed in toto to prove his case is not entitled to an order of non- suit. Where in a trial of an action evidence has been adduced by both parties and the plaintiff fails to prove his case, the proper order to make is that of a dismissal. An order of a non-suit would be inappropriate in such a circumstance. See Egonu v. Egonu (1978) 11 – 12 SC 111, Oyetiola v. Adeoti (1973) 1 NWLR 103, Kodilinye v. Odu (1935) 2 WACA 336, Gold v. Osaseren (1970) 1 ANLRP 129, Okoye v. Nig. Construction Furniture Co Ltd (1991) 116 NWLR (pt. 199) 501, Craig v. Craig (supra), Osuji v. Ekeocha (2009) All FWLR (Pt. 490) 626, 662. PER ADAH, J.C.A.
WHETHER OR NOT THE PRODUCTION OF CERTIFICATE OF OCCUPANCY PROVES TITLE OF OWNERSHIP TO A LAND IN DISPUTE
The law is trite that mere production of Certificate of Occupancy do not proof title. It is the duty of the 1st defendant who produced Exhibit D3 to establish a prior interest on the land before the Certificate of Occupancy was granted to him. See Alh. Jimoh Ajadi Suu v. Jobak Nig. Ltd (2012) LPELR – 7932 (CA). PER ADAH, J.C.A.
WHETHER OR NOT A CERFIFICATE OF OCCUPANCY IS PROOF OF OWNERSHIP OF TITLE TO LAND
Under our land law, production of a Certificate of Occupancy in respect of a plot of land is not the ultimate proof of ownership or title to the land. The certificate ought to be proven to be a valid grant and it must also be proved not to be given by fraud or given over another person’s right. In the case of Olohunde & Anor v. Adeyoju (2000) LPELR – 2586 (SC), the Supreme Court per Iguh, JSC, held that:
“Where a Certificate of Occupancy has been granted to one of two claimants who has not proved a better title, it must be deemed to be defective and to have been granted or issued erroneously and against the spirit of the Land Use Act and the holder of such a certificate would have no legal basis for a valid claim over the land in issue. So, too, where it is shown by evidence that another person other than the grantee of a certificate of occupancy had a better right to the grant, the Court may have no option but to set aside the grant or otherwise discountenance it as invalid, defective and/or spurious as the case may be. See Joshua Ogunleye v. Oni (supra), Dzungwe v. Gbishe & Anor (1985) 2 NWLR (Pt. 8) 528 at 540. For a certificate of occupancy under the Land Use Act, 1978 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 who was not divested of his legal interest to the land prior to the grant.” PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 1st June, 2020, in Suit No: FCT/HC/CV/2130/2015.
The 1st Respondent as claimant instituted this action at the trial Court and claimed against the appellant as 1st Defendant all the sundry reliefs as per the statement of claim, thus:
1. A Declaration that plot No. 2712A situate within Asokoro Cadastral Zone A4 is the property of the plaintiff.
2. A Declaration that the defendant is a trespasser.
3. An Order of Perpetual Injunction restraining the defendant, his agents, privies and/or any person whomsoever and howsoever from the land.
4. General damages in the sum of N100,000,000.00 for trespass.
5. Special damages in the sum of N3,443,900.00 only, as averred in paragraphs 11 and 12 of the Statement of Claim.
6. Cost of this Suit
The appellant on the 19th November, 2015, filed a Notice of Preliminary Objection challenging the competence of the suit on the premise that the 1st Respondent did not comply with the provision of Order 12 Rules (1) and (2) of the Rules of the High Court Civil Procedure Rules 2004 (sic), (2018). The trial Court after considering the submissions of both parties, struck out the incompetent Motion and awarded cost against the Defendant.
The 1st Respondent, on the 14th September, 2017 amended his Statement of Claim and subsequently on the 13th March, 2019 again amended the same Statement of Claim, which prompted the appellant to amend his Statement of Defense on the 2nd March, 2018.
The parties joined issues and the trial Court on the 1st June, 2020 invoked the provision of Order 38 of the High Court of the FCT (Civil Procedure) Rules, 2018 and pronounce an Order of non-suit.
Aggrieved by this decision, the appellant filed this instant appeal vide the Notice of Appeal filed on the 16th July, 2020. There are five grounds of appeal listed in the Notice of Appeal, See pages 226 to 230 of the Record of Appeal.
The Record of Appeal was compiled and transmitted to this Court on the 22nd September, 2020, Brief of Arguments were filed and exchanged in the following manner:
Appellant’s Brief of Argument is dated 15th October, 2020, and filed the same date. The 1st Respondent’s Brief of Argument dated 4th November, 2020, and filed on 11th November, 2020, while the Appellant’s Reply Brief of Argument is dated 2nd February, 2021 and filed 16th February, 2021.
Counsel adopted their respective Briefs of Argument at the hearing of this appeal. The appellant in his Brief of Argument formulated three issues from grounds 1, 2, 3, 4 and 5 of the Notice and grounds of appeal, thus:
1. Whether it is right for the trial Court to non-suit this case rather than dismiss it. (Distilled from grounds 1 and 2 of the Notice of Appeal).
2. Whether failure of a claimant to prove his case by credible evidence could lead to dismissal or non-suit. (Distilled from grounds 3 and 4 of the Notice of Appeal)
3. Whether production of a certificate of occupancy with other documents of allocation without any counter is sufficient proof of title able to persuade the Court to dismiss the action. (Distilled from grounds 5 of the Notice of Appeal).
The 1st Respondent in his Brief of Argument formulated a lone issue for the determination of this appeal, thus:
“Whether in the circumstances of this case, the decision of the trial Court in non-suiting the case of the 1st Respondent is not correct.”
The sole issue formulated by the learned counsel for the 1st Respondent is apt and encapsulates two out of the three issues distilled by the appellant. This appeal is therefore considered on the sole issue distilled by the 1st Respondent and the appellant’s third issue, which are:
1. Whether in the circumstances of this case, the decision of the trial Court in non-suiting the case of the 1st Respondent is not correct; and
2. Whether production of a certificate of occupancy with other documents of allocation without any counter is sufficient proof of title able to persuade the Court to dismiss the action.
Issue One:
This issue is – whether in the circumstances of this case, the decision of the trial Court in non-suiting the case of the 1st Respondent is not correct?
In arguing this issue, learned counsel for the appellant submitted that the trial Court erred in law when it totally disregarded the submission of the appellant to dismiss the suit after re-adopting final Written Address on two occasions, we submit with respect my lords that the procedure for non-suiting a case was invoked unjustly. Order 38 of the Rules of High Court of FCT which the Court hid under to non-suit this case is not applicable to the case, since the 1st Respondent failed to prove his case, the only thing the Court needs to do is to dismiss the case.
Learned counsel for the appellant further submitted that under cross-examination of the witness the claimant admitted that he was not allocated plot 3294 and that he has no evidence of notice of change of the plot number which means his claim of re-numbering is speculative and must be discountenanced as the Court of law does not dwell in speculation. Counsel relied on Uwagboe v. State (2008) 12 NWLR Pt. 1102 at Page 647 Paragraphs G-H; Section 134 of the Evidence Act.
Learned counsel for the 1st Respondent argued that an order of non-suiting the case of the 1st Respondent by invoking the provisions of Order 38 of the High Court of the Federal Capital Territory. Counsel relied on the case of Olusola v. Trusthouse Propt. Ltd (2010) 8 NWLR (Pt. 1195) 1 at 31 Paras. C-E, Tiamiyu v. Olaogun (2008) 17 NWLR (Pt. 1115) 66 at 96 Paras. F-G. Counsel further submitted that it is necessary at this point to quickly address a submission made by the appellant. The appellant argued at paragraph 42 page 9 of his brief to the effect that the lower Court gave a prayer (i.e. an order of non-suit) which none of the parties prayed for. This submission is misconceived. Order 38 gives the Court the discretion to suo motu non-suit a claimant subject to Court giving the legal representatives of the parties the right to address the Court on the propriety or otherwise of making such an order. Counsel relied on the cases of Dafa v. FCDA (1994) 4 NWLR (Pt. 340) 549 at 556 Paras. c-D, Adeosun v. Babalola (1972) 5 SC 292, Okeobor v. Police Council (1998) 9 NWLR (Pt. 556) 534 at 544 Para. B, Egbuchu v. Continental Merchants Bank Plc (2016) 8 NWLR (Pt. 1513) page 192 at 213 Paras. A-B, Dungal v. Soro (2019) 10 NWLR (Pt. 1679) 37 at Paras. A-B, Akinsuroju v. Joshua (1991) 4 NWLR (Pt. 187) 542 at 550, Ugese v. Siki (2007) 8 NWLR (Pt. 1037) 452 at 462-463 Paras. H-A, Ikonne v. Ezieme (2011) 11 NWLR (Pt. 1259) 536 at 560-61 Paras. F-B, Ugbodume v. Abiegbe (1991) 8 NWLR (Pt. 209) 261 at 275, Anode v. Mmeka (2008) 10 NWLR (Pt. 1094) 1 at 23 Paras. B-C, Associated Business Company Ltd v. Nwachinemelu & Anor (2014) LPELR-24393 page 30-31, paras. D-C.
Learned counsel for the appellant in his Reply Brief submitted that the provision of Order 38 is only appropriate where a plaintiff has failed to give satisfactory evidence. However, the submission of the appellant in the instant case is that the plaintiff in the instant case had no case to prove which in turn led to the shabby evidence presented by the claimant at the trial Court. We submit that the trial Court on account of the shabby and unrelated evidence adduced by the claimant before it, coupled with the credible evidence adduced by the Defendants, ought to have made an order for dismissal of the 1st Respondent’s case instead of non-suit. Counsel relied on the cases of Ilodibia v. Nigerian Cement Company Ltd (1997) LPELR-1494 (SC), Dungal v. Soro (2018) LPELR-47129 (CA), Ernest & Ors v. Anjorin & Ors (2016) LPELR-41454 (CA).
Now, the Rules of Court relied upon by the trial Court to order non-suit in the instant case is Order 38 of the Federal Capital Territory, Abuja High Court (Civil Procedure Rules, 2018). Order 38 thereof provides:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Where satisfactory evidence is not given entitling the claimant or defendant to the judgment of the Court, the judge may suo motu or on application, non-suit the claimant, but parties’ legal practitioner shall have the right to make submissions about the propriety or otherwise of making such order.
This provision is on all fours with Order 48 Rule 1 of the High Court Rules applicable in Anambra State which was interpreted in the case of Enigwe & Ors v. Akaigwe & Ors (1992) 2 NWLR (Pt. 255) 5050. Akpata, JSC, in that case aggregated the requirement of that law to mean that a Court may non-suit the plaintiff in circumstances where neither the plaintiff nor the defendant is entitled to the judgment of the Court, not where “there is little to choose” between the evidence of the opposing parties. There are certain circumstances where either the plaintiff or the defendant will not be entitled to the judgment of the Court and that will therefore necessitate the non-suiting of the plaintiff’s case. For instance, the plaintiff will be non-suited where he has only failed to get judgment on account of a hitch of which the defence is not entitled to take advantage. See Odiete & Ors v. Okotie & Ors (1972) 6 SC 83 at 90.
Inevitably, a non-suit means giving the plaintiff a second chance to prove his case. The Court has to consider whether in this case that would be wronging the defendant and on the other hand whether a dismissal of the suit would be wronging the plaintiff. See the cases of Elufisoye v. Alabetutu (1968) NML 298 and Azubike Ume & Ors v. Alfred Ezechi & Ors (1964) 1 WLR 701.
In our law, non-suit is discretionary. The position is that an order of non-suit is not granted just for the asking or as a matter of course. It is one that can only be properly made upon the dictates of justice to both sides, when upon a calm and full view of the scale of the case in favour of either side, the Court can say that no side is entitled to win. The Court must therefore, be satisfied that the circumstances of the particular case deserves such an order. This is because an order of non-suit is that order which terminates the plaintiff’s case without a decision or pronouncement on its merits or which did not adjudicate all relevant issues on merit. See Craig v. Craig (1967) NWLR 52, Ugbodume v. Abiegbe & Ors (1991) 8 NWLR (Pt. 209) 261, Chikere v. Okegbe (2000) 12 NWLR (Pt. 681) 274.
In the case of Egbuchu v. Continental Merchant Bank Plc & Ors (2016) LPELR – 40053 (SC), the Supreme Court Per Kekere-Ekun, JSC, at page 12 paras B – E, held that the circumstances when an order of non-suit would be made are: “a. where the plaintiff has not failed in toto or entirely to prove his case; b. where the defendant is not in any event entitled to the Court’s judgment; and c. where no wrong or injustice to the defendant would be caused by such order”. Flowing from these, it is now undoubtedly settled that a plaintiff who has failed in toto to prove his case is not entitled to an order of non- suit. Where in a trial of an action evidence has been adduced by both parties and the plaintiff fails to prove his case, the proper order to make is that of a dismissal. An order of a non-suit would be inappropriate in such a circumstance. See Egonu v. Egonu (1978) 11 – 12 SC 111, Oyetiola v. Adeoti (1973) 1 NWLR 103, Kodilinye v. Odu (1935) 2 WACA 336, Gold v. Osaseren (1970) 1 ANLRP 129, Okoye v. Nig. Construction Furniture Co Ltd (1991) 116 NWLR (pt. 199) 501, Craig v. Craig (supra), Osuji v. Ekeocha (2009) All FWLR (Pt. 490) 626, 662.
In the instant case, the appellant and the 1st Respondent are laying claim to the same plot of land. The learned trial judge in his judgment at pages 223 – 225 held as follows:
“Now what is the evidence before the Court to show that Plot No 2712A, Asokoro District, Cadastral Zone A4 was redesigned and renumbered Plot 3294 as alleged by the claimant. The basic principle of law is that he who alleges must prove. See Kingsley Emesiani v. Levi Emesiani (2013) LPELR – 21360 (CA).
The claimant has obligation to prove by way of documentary evidence, the fact that the AGIS informed him that the Area was redesigned and renumbered as Plot 3294, bearing in mind that the AGIS was created pursuant to statutory powers of the 2nd and 3rd defendants.
I am not unaware that the 2nd and 3rd defendants failed to file defence to the action. The fact remains that the search report of the enquiry is not placed before this Honourable Court. The claimant did not call any surveyor to support this assertion either.
It is the law that a claimant fails to discharge that onus placed on him the defendant is not obliged to adduce evidence in rebuttal. See Daniel Dibal v. Kingsley Eguma (2016) LPELR – 41236 (CA).
The defendant in proving that Plot 3294 Asdokoro District, Cadastral Zone A04 was duly allocated to him tendered Exhibits D1, D2 and D3.
Exhibit D3 is the certificate of Occupancy issued to the 1st defendant by the 2nd defendant while Exh. D2 is a letter from the 3rd defendant reinstating the title of the 1st defendant over Plot 3294.
The law is trite that mere production of Certificate of Occupancy do not proof title. It is the duty of the 1st defendant who produced Exhibit D3 to establish a prior interest on the land before the Certificate of Occupancy was granted to him. See Alh. Jimoh Ajadi Suu v. Jobak Nig. Ltd (2012) LPELR – 7932 (CA).
The 1st defendant averred at paragraph 17 of the amended statement of claim that he would rely on the Power of Attorney and the letter of allocation to Isyaku M and he gave the 2nd and 3rd defendants notice to produce same.
He earlier at paragraph 12 averred that he had registered his interest over the plot 3294. Also on 25/11/19 the 1st defendant filed subpoena Duces ad testificandum to call the Director Abuja Geographical Information System (AGIS) to produce the Approval of Allocation letter with Ref. MFCT/LA/KD. 3595 issued to Isyaku M., which subpoena was not been served on the Director. It was abandoned.
Exhibit P9 and D1 are acknowledgement. The disclaimer on Exhs. P9 and D1 states:
“This acknowledgement does not in any way validate the authenticity of the documents described above. All documents are subject to further verification for authenticity”.
The central dispute in this case is the alleged Re-designing and renumbering of Plot 2712A as Plot 3294 Asokoro District, Cadastral Zone A04.
I have carefully considered the evidence before this Honourable Court especially Exhs. P3 and D3, the sketch plan of Plot 2712A and 3294. I am of the humble opinion that justice of this case demand that the matter be non-suited to give the parties opportunities to bring in all their documentary evidence in aid of this Court to arrive at a just decision.”
From the evaluation of the learned trial judge which to my mind cannot be faulted, both the plaintiff and the 1st Respondent, the main contenders were unable to firmly establish their respective claims. This occurred because certain documentary exhibits that were needed were not before the Court for the resolution of the issue surrounding the said plot of land. The 1st Respondent as plaintiff asserted that it was his plot No. 2712A Asokoro District, Cadastral Zone A4 that was redesigned and renumbered Plot 3294. The core documents to evidence this prominent assertion could not be placed before the Court by the 1st Respondent. The appellant in proving that the Plot was allocated to him tendered some documents such as the Certificate of Occupancy (Exhibit D3) and Exhibits D1 and D2 dealing with the revocation and reinstatement of his title to the said land. He subpoenaed the Director of Abuja Geographic Information System to produce the Approval of Letter of Allocation issued to one Isyaku M, which was not served on the Director and it was abandoned. Exhibits D1 and P9 had a disclaimer clause. It required some form of elucidation and proof to enable the Court come to the conclusion that the plot may be for the respondent. The trial Court was right to act under Order 38 of the trial Court’s Rules. It follows therefore, from this that this issue one is resolved against the appellant.
Issue Two:
This issue is – whether production of a Certificate of Occupancy with other documents of allocation without any counter is sufficient proof of title able to persuade the Court to dismiss the action.
Learned counsel for the appellant submitted that the appellant has been able to show the root of his title in respect of this property that the plot was sold to him by Isyaku M., with an allocation letter dated 05/26/2003 and Power of Attorney registered with the 3rd defendant on the 18th/12/05. Again a letter of Re Revocation of Right of Occupancy in respect of Plot No. 3294 was also tendered to show that his right over the property even though revoked at a time was reinstated to him to have benefit of the Plot 3294 Cadastral Zone A04 Asokoro District Abuja. These however lead to the issuance of the Certificate of Occupancy in respect of the plot to the 1st Respondent. Counsel relied on Idundun v. Okumagba (1976) 9-10se 227, Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.) 41 Mogaji v. Cadbury (Nig.) Ltd (1985) 2 NWLR (Pt. 7) 393, Ezeoke v. Nwagbo (1988) 1 NWLR pt. 72 616, Fasaro v. Beyioku, Michael Odunze & Ors v. Nwosu Nwosu & Ors (2007) LPELR-2252 (SC).
Learned counsel for the 1st Respondent submitted that the appellant placed so much emphasis on Exhibit D3 which is the appellant’s purported Certificate of Occupancy. That the trial Court held that mere production of Certificate of Occupancy does not prove title as the appellant was under an obligation to establish prior interest on the land before the Certificate of Occupancy was given to him. Refers to paragraph 6 at page 224 of the Record. Counsel relied on the cases of Essien v. Etukudo (2008) LPELR-3625 (CA), Ajanaku v. Osuma (2013) LPELR-20528 (CA), Eneche v. Airtel Network Ltd (2015) LPELR-40400, Akinbinu & Ors v. Adejokun & Ors (2018) LPELR-44329 page 51 at paras. B-C.
Learned counsel for the appellant in his Reply Brief of Argument submitted that -it is important to point out this singular fact that there was no other Certificate of Occupancy tendered before the lower Court in respect of plot 3294 therefore, the lower Court ought to have ascribed probative value to Exhibit D3. The claimant (now 1st Respondent) himself also did not deny the fact that Exhibit D3 was issued by the FCTA. Therefore, the submission of the counsel to the 1st Respondent and the case of Essien v. Etukudo (2008) LPELR-3625 (CA), cited by him are not applicable in this instance.
Under our land law, production of a Certificate of Occupancy in respect of a plot of land is not the ultimate proof of ownership or title to the land. The certificate ought to be proven to be a valid grant and it must also be proved not to be given by fraud or given over another person’s right. In the case of Olohunde & Anor v. Adeyoju (2000) LPELR – 2586 (SC), the Supreme Court per Iguh, JSC, held that:
“Where a Certificate of Occupancy has been granted to one of two claimants who has not proved a better title, it must be deemed to be defective and to have been granted or issued erroneously and against the spirit of the Land Use Act and the holder of such a certificate would have no legal basis for a valid claim over the land in issue. So, too, where it is shown by evidence that another person other than the grantee of a certificate of occupancy had a better right to the grant, the Court may have no option but to set aside the grant or otherwise discountenance it as invalid, defective and/or spurious as the case may be. See Joshua Ogunleye v. Oni (supra), Dzungwe v. Gbishe & Anor (1985) 2 NWLR (Pt. 8) 528 at 540. For a certificate of occupancy under the Land Use Act, 1978 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 who was not divested of his legal interest to the land prior to the grant.”
Similarly, in Ibrahim v. Dr. Juanid Salik Mohammed (2003) LPELR-1409 (SC), the Supreme Court held:
“…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. See the case of Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 @ 752, 774 – 785; (1990) 4 SCNJ 65 (also referred to by the Court below at page 302) where it was held inter alia, that where (as in this case) a Certificate of Occupancy, has been granted to one of the claimants who has not proved a better title, it has been granted against the letters and spirit of the Land Use Act. See also the case of Olohunde & Anor v. Prof Adeyoju (2000) 6 SCNJ 470 at 493 – 494 – per Iguh, JSC, 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 in dispute.”
The position of our law therefore, is simply that production of a certificate of occupancy is not a conclusive evidence of ownership of the land. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire more into the validity of the grant. In the instant case, the learned trial judge was excellently right to hold as he did that the appellant who produced Exhibit D3, the Certificate of Occupancy is duty bound to establish a prior interest on the land in issue before he was granted the Certificate of Occupancy.
In all this, the claimant at the trial Court and the appellant claiming to be the owner of the land needs the opportunity to properly produce their pieces of evidence to establish their respective claims. The trial Court therefore, is fully right for taking the option of non-suiting the claimant as the evidence available could not yet give to any of them title to the land in dispute.
From the foregoing therefore, I am of the firm view that there is no merit in this appeal. The appeal is therefore dismissed. The order of non-suit as granted by the trial Court is hereby affirmed.
Parties to bear their respective costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been availed a draft copy of the leading judgment just delivered by my learned brother, Stephen Jonah Adah JCA. The crucial issues thrown up in this appeal have been assiduously considered and brilliantly resolved against the Appellant. I agree that the appeal lacks merit and is thus, liable to be dismissed.
My Lords, I shall, by way of my humble contribution to the rich analysis in the leading judgment, just say a word or two on when in law an Order of No Suit can be made by a Court, particularly a trial Court. I will also say a word or two on the position of the law on the status of a Certificate of Occupancy when tendered in a land dispute proceeding before a trial Court.
Now, in law a Court may if it deems fit, where no satisfactory evidence has been led by either of the parties to be entitled to judgment, call upon the parties to address it on why it should rather not enter a non-suit and declare no victor no vanquished as would enable the parties to return to Court at a future date to see if either of them could, under the law, prove his entitlement to the reliefs he has been unable to prove in the present suit. Thus, in appropriate circumstances, of which the instant appeal is not, where there is no satisfactory evidence enabling the Court to give judgment to either of the parties and wronging neither, an order of non-suit after hearing the parties would be in order but a Court should never resort to granting a relief not asked for or not claimed by either of the parties. See Ashafa & Ors V. Fasasi & Ors (2018) LPELR – 50853(CA) at Pp. 43 – 44 per Sir Biobele Abraham Georgewill JCA. See also Adelusola V. Akinde 2004 120 LRCN 4638 at p. 4687, ACB Ltd V. Yesufu 1980 1-2 SC 48, Olagbemiro V. Ajagungbade 1990 3 NWLR (Pt. 136) 37.
My Lords, I can see it being contended, and vehemently too, though erroneously for the Appellant, that because he tendered a Certificate of Occupancy, the lower Court ought to have proceed to enter judgment in his favour by dismissing the 1st Respondent’s Suit for lacking in merit rather than entering a non – suit. which in essence is more or less offering the 1st Respondent a second bite at the cherry. Truly, a very rare opportunity, but nevertheless an opportunity, that arises whenever in a trial the conditions for a Court to enter a non-suit is found to exist.
In law, notwithstanding the tendering of a Certificate of Occupancy by one party, it may not still amount to proof of title to land. This is so because the production of a certificate of occupancy is merely a prima facie proof of title to land. It is not ipso facto a conclusive proof of title to land. In other words, mere production of a certificate of occupancy alone does not automatically amount to proof of title to land, so also would a certificate of occupancy not cure a defective title to land. Thus, where for instance the other party makes out his claim on the strength of the evidence led proved a prior valid title to the land purportedly covered by the Certificate of Occupancy, the prima facie proof of title accorded a Certificate of Occupancy will be lawfully rebutted and supplanted by the credible evidence of that other party who proves a prior better title to the land. Authorities on this position of the law are legion. See Tools and Allied Products Ltd & Ors V. Akinyemi (2017) LPELR -51531(CA) at Pp. 30 – 33, per Sir Biobele Abraham Georgewill JCA. See also Prince Ngene V. Chike Igbo & Anor (2000) 4 N WLR (Pt.851)131, Lababedi V. Lagos Metal Industries (Nig.) Ltd & Anor (1973) 8 NSCC 1.
In Kyari V. Alkali (2001) 31 WRN 88 at P. 116, the succinct position of the law was stated to be inter alia thus:
“It must however be stressed that this does not and cannot mean that once instrument of title to land, such as a deed of conveyance or a certificate of statutory or customary right of occupancy is tendered in Court, this automatically proves that the land therein purportedly conveyed, granted or transferred by that instrument becomes the property of the grantee.”
Also, in Aminu V. Ogunyebi (2004) NWLR (Pt. 882) 457 at p. 481, it was emphatically pronounced inter alia thus:
“It has to be realized that a Certificate of Occupancy is not a magic wand that destroys existing rights over a land in dispute. The acceptable view is that, for a Certificate of Occupancy to be valid, there must not be in existence at the time the certificate was issued a customary owner who has not been divested of his title.”
Now, one of the most recognized ways or means or mode of proving title to land is by production of a valid instrument of grant or title, yet it does not mean that, once a Claimant produces what he claims to be an instrument of grant, which includes a Certificate of Occupancy, then he is automatically entitled to a declaration that the property which such an instrument purports to grant is, his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some fundamental questions of validity of the grant itself. See Romaine V. Romaine (1992) LPELR – 2953 (SC).
See also Grace V. Dr. Betram Madu, (2008) 6 NWLR (Pt. 1083) at Pp. 319 – 320, where this position of the law was succinctly reiterated inter alia thus:
“A person who is granted a certificate of occupancy over a parcel of land is entitled to hold to the exclusion of any other person unless and until the certificate of occupancy is for good reasons revoked… A certificate of occupancy properly issued by a competent authority raises the presumptions that the holder is the owner thereof in exclusive possession of the land. The certificate also raises the presumption that at the time it was issued… 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, in which case the certificate of occupancy will stand revoked by the Court.”
It is for the above few words of mine, by way of contribution to the fuller reasoning as admirably marshalled out in the leading judgment, that I too dismiss this appeal for lacking in merit. I shall abide by the consequential orders made in the leading judgment, including the order as to no cost.
BATURE ISAH GAFAI, J.C.A.: I have read in advance the judgment delivered by my learned brother Adah, JCA.
I agree entirely with the reasonings and conclusion of my Lord in the resolution of the Appellant’s issue 3 and the 1st Respondent’s lone issue, all others subsumed and treated thereunder.
I too formed the considered view that the issues as considered comprehensively by my Lord be resolved against the Appellant. In effect, the appeal lacks merit and is in consequence dismissed by me too.
Appearances:
Dr. Adekunle Oladapo Otitoju, Esq, with him, T.G. Onwaraoji-Madu, Esq. For Appellant(s)
Oguche Agbonika, Esq, – for 1st Respondent
2nd and 3rd Respondents served but not represented in Court For Respondent(s)