AISHA KURA MOHAMMED v. HALIMA MAGAJI BELLO & ORS
(2019)LCN/12773(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/A/256/2016
RATIO
LAND LAW: WHERE THERE ARE COMPETING INTEREST TO LAND
“The law has long been established that, where as in this present case, there are competing interest by two or more parties claiming title to the same land from a common grantor, the position, both at law and in equity, is that, such competing interests will prima-facie rank in order of their creation based on the maxim qui prior est tempore portior est jure, which simply means he who is earlier in time is stronger in law. See Ahmadu Bello University Vs Fadinamu Trading Co. Ltd & Anor. (1975) 1 NMLR 45; Abiodun Vs Olatunde Fanoiki & Anor. (1990) 2 NWLR (part 131) 137 & 151; Gege Vs Nande (2006) 10 NWLR (part 988) page 256.” PER ADAMU JAURO, J.C.A.
LAND LAW: RIGHT OF OCCUPANCY
“A Right of Occupancy granted under the Act is and remains valid and effective and is admissible in law as documentary evidence, until legal steps are taken to have it revoked. See Finnih Vs Imade (1992) 1 NWLR (part 219) 511, Abdullahi Vs Bani (2014) 17 NWLR (part 1435) page 1. In the instant case the Appellant’s initial Statutory Right of Occupancy, was revoked by the 2nd and 3rd Respondents. The appellant is not complaining about the said revocation. Though has taken step to have his right over the property reinstated.” PER ADAMU JAURO, J.C.A.
LAND LAW: WAYS TO ESTABLISH TITLE TO LAND
“In this case, the Respondent as plaintiff before the lower Court, asserted that she is the bonafide owner of the land in dispute. The Courts in a plethora of cases have established five ways of proving title to land to wit:
a) By traditional evidence, or
b) By production of documents of title which are duly authenticated, or
c) By act of selling, leasing, renting out all or part of the land, or farming on it or on portion of its, or
d) By act of long possession and enjoyment of the land, or
e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition, be the owner of the land in dispute. See Idundun Vs Okumagba (1976) 9 – 10 SC 227; Nkado Vs Obiano (1997) 5 NWLR (part 503) 31; Mani Vs Shanono (2006) 4 NWLR (part 969) 132; Bukar Vs Bashir (2014) 11 NWLR (part 1417) page 68 at page 85.” PER ADAMU JAURO, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
AISHA KURA MOHAMMED Appellant(s)
AND
1. HALIMA MAGAJI BELLO (suing through her Attorney Mr. Daniel Nnadi)
2. THE HONOURABLE MINISTER OF THE FEDERAL CAPITAL TERRITORY
3. THE FEDERAL CAPITAL DEVELOPMENT AUTHORITY (FCDA) Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja delivered in Suit No. FCT/HC/CV/481/2008 by Hon. Justice M. M. Dodo on 19th March, 2015.
The 1st Respondent was the plaintiff before the lower Court wherein she instituted this action against the Appellant who substituted her father Ibrahim Kura Mohammed as the 1st Defendant, and 2nd and 3rd Respondents as the 2nd and 3rd Defendants respectively. By her amended statement of claim, the plaintiff/1st Respondent claimed the following reliefs against the Defendants:
1. A declaration that the plaintiff is the bonafide owner of all the piece of land lying and situate at Utako District, Abuja and covered by New File No. PL20215.
2. A declaration that the 2nd and 3rd Defendants are in breach of the terms of offer and condition agreed with the plaintiff by re-allocating to the 1st Defendant all the piece of land situate at plot No. 93 in Cadastral Zone B05 at Utako District, Abuja and covered by New File No. PL20215.
OR IN THE ALTERNATIVE
3. An order directing the 2nd and 3rd Defendants to allocate to the plaintiff another piece of land situate within Utako District, Abuja.
4. An order declaring as illegal and unlawful the purported re-allocation to the 1st Defendant of land situate at plot No. 93 in Cadastral Zone B05 Utako District, Abuja covered by New File No. PL20215.
5. An order of perpetual injunction restraining the 1st Defendant from trespassing into all that piece of land lying and situate at plot No. 93 in Cadastral Zone B05 Utako District, Abuja and covered by New File No. 20215.
6. An order of perpetual injunction restraining the 2nd and 3rd Defendants or any of their agents from interfering with the rights and interest of the plaintiff and/or her agents over all the piece of land situate at plot No. 93 in Cadastral Zone B05 at Utako District, Abuja and covered by New File No. PL20215.
7. General Damages’ of N5,000,000.00k jointly and several for the illegal acts of the 1st to 3rd Defendants.
8. N2,000,000.00k being the cost of this action.
The plaintiff’s case was premised on the fact that some time ago she applied to the 2nd and 3rd Defendants for the allocation of land within the FCT, and she was allocated a piece of land situated at Utako District of Abuja known as plot No. 93 and covered by file No. PL20215 and dated 25/03/2006. The plaintiff claimed that upon receipt of offer letter in respect of the plot in dispute, she was requested by Abuja Geographic Information System (AGIS), an agency of the 2nd and 3rd Defendants to pay the sum of N2,893,449.26k as Statutory Right of Occupancy bill, wherein she paid the sum of N1,465,009.26k to the 2nd and 3rd Defendants vide UBA Deposit Slip No. 015430 dated 29/06/2007 and took possession of the land and has been in peaceful occupation.
According to the plaintiff, sometimes in October, 2007 one Ibrahim Mohammed (Late) who is represented by the 1st Defendant (now appellant) as his Next of Kin trespassed into the said land and claimed ownership of the land in question, and also made a report to the Police who subsequently ordered the arrest of the security guard on the land. A letter was then written by the Divisional Police Officer in charge of Utako District to the Abuja Geographic Information System (AGIS), to confirm the ownership of the land.
The Abuja Geographic Information System (AGIS) replied confirming the plaintiff as the bonafide owner of the land in their letter dated 29th October, 2007. They informed the Police that the land was initially offered to late Ibrahim Kura Mohammed, but later it was revoked due to non development.
According to the plaintiff, sometimes about 28th November to 4th December, 2007 late Ibrahim Kura Mohammed had started mobilizing workers and bringing materials in an attempt to develop the land. He informed the plaintiff that he was allocated the land by AGIS on behalf of the 2nd Defendant, sometimes in November, 2007 and was given a purported letter of reinstatement. The plaintiff claimed that her title to the land in dispute is still subsisting and has not been revoked, as such she filed the suit.
The Appellant/1st Defendant for her defence contended that contrary to the averments of the plaintiff, late Ibrahim Kura Mohammed never trespassed on the Plaintiff’s land, but went to his own plot of land No. 93 805, situate at Utako to resume development and at no time did he ever saw or threatened the plaintiff. She stated that the letter dated 29th October, 2007 was just seen by him as Exhibit in the plaintiffs motion, and he never knew of the existence of such correspondence. She averred that the land was purportedly revoked for non development and that when he eventually drew the attention of the 2nd and 3rd Defendants that he was awaiting the outcome of his application for the original of his Re-certified Certificate of Occupancy to the land with the officers of the 3rd Defendant, to commence development, the said revocation was then cancelled with the assurance that the error of revocation will not happen again. The 1st Defendant/Appellant, who is the next of kin to Ibrahim Kura Mohammed (deceased), admitted that on the 5th of October, 2005 he received a letter of the purported revocation from the 2nd and 3rd Defendants and after the receipt of the letter, he wrote a letter of Appeal dated 7th November, 2005 to the 2nd Defendant explaining why the plot of land had not yet been completely developed even though he had put up a fence round the plot on the 30th of January, 2006.
He later received a reply to his passionate appeal from the Department of Development control, a department under the 2nd Defendant stating that his appeal had been reviewed and it was considered for re-instatement subject to the payment of N1,000,000.00k (One Million Naira) only, which he paid on the 16th of March, 2006 and after the payment of the said One Million Naira (N1,000,000.00k) only, he wrote several letters to the 2nd Defendant for the release of his Certificate of Occupancy No. KN/10289, so as to enable him obtains approval and commences development as that was the procedure laid down by the 3rd Defendant.
According to her he went ahead and started mobilizing workers on the plot and had deposited several trips of sands and gravels so as to commence development, immediately he obtains the Certificate of Occupancy and approval for his development plan from the relevant authorities. At that point, he realized that a trespasser had tried to take over ownership of the land, because he noticed other workers hanging around his plot that were unknown to him nor were they in his employment. She averred that after repeated letters to the 2nd Defendant, especially in the light of another person trying to claim the ownership of the said land, he got a letter dated 7th November, 2007 from the office of Abuja Geographic Information System (AGIS), a department of the 2nd Defendant further re-instating his ownership to plot 93 Utako (B05) Abuja. Subsequent to the above stated letter, on the 4th of February, 2008 a Notice of Demand for Ground Rent was given to her as owner to the said plot 93 B05 Utako for a total sum of N74,895.98 (Seventy Four Thousand Eight Hundred and Ninety Five Naira Ninety Eight Kobo) which included year 2006 and 2007, the years the right to the said land was purportedly revoked and 2008, the present fiscal year. Her father promptly paid the amount on the 11th of February, 2008.
Though by Exhibit X, letter of reinstatement of the Appellant’s plot was indicated that the Respondent’s Statutory Right of Occupancy was withdrawn and an alternative plot was to be given to the 1st Respondent, the 1st Respondent however instituted this action. Issues were joined before the trial Court and the suit proceeded to trial.
In support of her case, the plaintiff presented one Mr. Daniel Nnadi as her sole witness and tendered four documents admitted as exhibits to wit:
1. Exhibit 1 – Power of Attorney dated 03/09/2007
2. Exhibit 2 – Statutory Right of Occupancy dated 25/03/2006
3. Exhibit 3 – Abuja Geographic Information System Receipt dated 29/03/2006
4. Exhibit 4 – This Day Newspaper publication of 11/03/2005
5. Exhibit X – Letter of Re-instatement of Right of Occupancy dated 07/ 11/2002.
The 1st Defendant/Appellant testified in person for her defence and tendered ten exhibits as follows:
1. “Exhibit A – Acknowledgment letter dated 02/07/2005
2. Exhibit B – Demand for Ground Rent dated 30/06/2005
3. Exhibit C – Notice of Revocation dated 05/10/2005
4. Exhibit D – Passionate Appeal letter dated 17/11/2005
5. Exhibit E – Reminder letter dated 17/03/2006
6. Exhibit F – Reminder letter dated 30/07/2006
7. Exhibit G – Reminder letter dated 22/12/2006
8. Exhibit H – Reminder letter dated 14/05/2007
9. Exhibit I – Demand for Ground Rent dated 04/02/2008
10. Exhibit J – Payment Receipt dated 16/03/2006.”
The 2nd and 3rd Defendants/Respondents also gave evidence in their defence through one Mr. Wayas Abdul Usman, a survey officer in Abuja Geographical and Information System (AGIS).
The witness tendered 3 documents and admitted in evidence as exhibits:
1. “Exhibit A – Acknowledgment letter dated 02/07/2005
2. Exhibit C – Notice of Revocation dated 05/10/2005
3. Exhibit D – Passionate Appeal letter dated 17/11/2005.
4. Exhibit Y – Review of cases of revoked Plots dated 30/01/2006.”
After the close of the parties’ case, final written addresses were filed and exchanged in accordance with the rules of the lower Court. Judgment of the lower Court was delivered on the 19th March, 2015, wherein the learned trial judge held as follows:
In view of the above, the issuance of Exhibit X to the 1st Defendant, is in my view invalid because the plaintiff’s right of occupancy subsists up to now as I have no evidence of whatever, of it being revoked by the 2nd and 3rd Defendants.
In addition, I am in agreement with all the authorities cited by the plaintiff in respect of this issue, in view of that, prayers a, b, d, e, f of the plaintiff’s Further Amended Statement of claim, dated 19th December, 2011 are hereby granted accordingly.
On general damages, …. I hereby award the reasonable sum of One Million Naira (N1,000,000.00k) only in favour of the plaintiff against the 2nd and 3rd Defendants only.
Finally, the plaintiff asked for the sum of N12,000,000.00 (Two Million Naira) only as cost of this action, …. I hereby award a reasonable sum of N500,000.00k only against the Defendants. This is my judgment.”
Dissatisfied with the aforesaid judgment, appellant filed her notice of appeal on 24th March, 2015. The appeal is predicated on three grounds of appeal. The grounds and their particulars are contained on pages 520 -521 of the record of appeal. The appellant sought the following reliefs from the Court:
1. An order of this Honourable Court setting aside the Judgment of the High Court of the Federal Capital Territory Abuja delivered on the 19th of March, 2015 by Hon. Justice M. M. Dodo in suit number FCT/CV/481/2008.
2. A Declaration that by the payment of the Accelerated Development charge sum of N1,000,000.00k on 16th March, 2006, being the condition precedent to the reinstatement of the Appellant as rightful allottee of the piece of land lying and situate at plot No. 93, Cadastral Zone B05 Utako District, Abuja, the Appellant has fulfilled the said condition and is therefore the bonafide owner of Plot No. 93, Cadastral Zone B05 Utako District, Abuja.
3. A Declaration that the 2nd and 3rd Respondents could not have passed title to the 1st Respondent over Plot No. 93, Cadastral Zone B05 Utako District, Abuja on 25th March, 2006, 9 days after the reinstatement of the Appellant’s interest in same by the receipt of payment of a non refundable Accelerated Development Charge of N1,000,000.00 (One Million naira) only.
4. An Order of perpetual injunction restraining the Respondents from trespassing into or interfering with the rights and interest the Appellants over Plot No. 93, Cadastral Zone B05 Utako District, Abuja.
5. Cost of this Appeal.
Pursuant to the said notice of appeal, the record of appeal was compiled and deemed transmitted to the Court on 23rd February, 2017. Briefs of argument were also filed, and exchanged in accordance with the rules of Court. The Appellant’s brief of argument settled by Mohammed Adelodun Esq., is undated and deemed filed on 23rd February, 2017. The Respondent brief of argument on the other hand was settled by Prince Orji Nwafor – Orizu is dated 24th May, 2018 and filed the same date. Appellant’s Reply on point of law to the 1st Respondent’s brief of argument which is dated 2nd May, 2017 was also filed on that same date.
The appeal was heard before the Court on 17th January, 2019. Appellant was represented by Mohammed Adelodun Esq., who adopted the Appellant’s brief as well as Appellant’s Reply brief. He urged the Court to allow the appeal and grant their prayers as per the reliefs sought in the notice of appeal. Appellant also asked for cost of N2,000,000.00k against the 1st Respondent as costs of action.
The 1st Respondent for her part was represented by prince Orji Nwafor Orizu who also adopted the 1st Respondent’s brief of argument. He urged the Court to dismiss this appeal.
In considering this appeal, the Appellant distilled two issues for determination from the three grounds of appeal, to wit:
1. Whether the Appellant?s interest in plot 93 Cadastral Zone BO5 Utako District, Abuja does not precede and prevail over that of the 1st Respondent by virtue of the reinstatement of 30th January, 2016 followed by the payment of N1,000,000.00 (One Million Naira) in 16th March, 2006? (culled from Grounds 1 and 3).
2. Whether the 1st Respondent proved her case for a declaration of title to the land in dispute and thus entitled to the reliefs granted. (culled from Grounds 2)
The 1st Respondent adopted in verbatim the issues formulated by the appellant’s counsel. There is therefore no need to reproduce the 1st Respondent’s issues. In the resolution of this appeal, the Court will adopt the Appellant’s issues as reproduced above. The two issues will also be considered together as argued by the parties.
In arguing these issues, learned counsel for the Appellant submitted that where there are competing interests by two or more parties claiming title to the same piece or parcel of land from a common grantor, such competing interests will prima facie rank in order of their creation based on the maxim qui prio est tepore portior est jure (he who is earlier in time is stronger in law). He referred to the case ofEmma Ilona Vs Sunday Idakwo (2003) 12 MJSC page 35 at 40. It was contended that by Exhibit 7 (letter of Review of Cases of Revoked Plots), Exhibit J (the receipt of the sum of N1,000,000.00k One Million Naira), and Exhibit 2 (Statutory Right of Occupancy with file No. 20215) that Exhibit Y is clearly the first in time by 9 days. Counsel submits that the power of the 3rd Defendant to grant the disputed land is not at large and is clearly not in dispute in this suit. He referred to Sections 1 and 18 of the FCT Act, Cap 503 LFN and Section 297 of 1999 Constitution (as amended).
Learned counsel pointed out that the contention of the Appellant in this case is that by Exhibit Y, the Appellant?s title over the land had been reinstated particularly when he fulfilled the condition therein. He summit?s that Exhibit X referred to by the learned trial judge is a mere formality of a grant that has been restored by Exhibit Y upon the fulfillment of payment being the condition given. He referred to the case of Olagunju Vs Adesoye (2009) 9 NWIR (part 1146) page 225. Learned counsel further argued that as of 25th March, 2006 when the 2nd Respondent purportedly issued Exhibit 2, that is Statutory Right of Occupancy to the 1st Respondent there was in fact and in law no title to be passed, same having been passed to the Appellant on 16th March, 2006 by virtue of Exhibits Y and J respectively. He referred to the maxim Nemo dat quod non habet. It was further maintained that the 2nd Respondent has the inherent power to cancel a revocation, as was done in this case by Exhibit y. He referred to the case ofIlona Vs ldakwo (2003) 12 MJSC page 35 at 40.
He added that it was in deference to the above power of the 2nd Respondent that the Appellant wrote Exhibit D, that is, the passionate letter dated 17th November, 2005, detailing the reasons for the delay in construction and pleading for the reconsideration of the revocation. That pursuant to the power of the Minister Exhibit ‘Y’ was made, reinstating the Appellant’s right over the land and thereby setting aside the revocation. He maintained further that the Appellant’s title over the Plot having been reinstated by the letter of 30th January, 2006, which condition precedent was fulfilled on 16th March, 2006, the 2nd and 3rd Respondents were divested of any authority to allocate the plot to the 1st Respondent or any other person. He contended that the principle of being first in time accrues to the Appellant’s benefit. He referred to the cases of Ilona Vs Idakwo (supra) at page 91 – 92 paragraphs G – B; Kari Vs Ganaram (1997) 2 NWLR (part 488) 380 at 403 paragraphs D – H.
It was also the submission of the learned counsel that by Exhibit I (Demand for Ground Rent) and the receipt of payment of same, clearly show that the Appellant’s right over plot 93 Utako (B05) Abuja is valid, and subsisting and precedes the purported grant of the plot to the 1st Respondent. He further argued that the 1st Respondent is not entitled to the reliefs, she sought at the trial Court, for she has a duty to prove better title by showing that her document of title was validly issued as at the time of issuance. He referred to the cases of Ilona Vs Idakwo (supra); Mulima Vs Usman (2014) 16 NWLR (part 1432) 160 at 194 paragraphs E – F; Olohunde Vs Adeyoju (2000) 10 NWLR (part 676) page 588 paragraphs B – D.
Learned counsel submitted that the title of the 1st Respondent having originated from Exhibit 2, that is Statutory Right of Occupancy dated 25th March, 2006, must collapse by the effect of Exhibit Y which reinstated the Appellant’s interest on 16th March, 2006 before Exhibit 2 was issued.
On the other evidence put before the trial Court by the 1st Respondent to wit: Exhibit 1, Exhibit 3 and this Day Newspaper Publication of 11th March, 2008, counsel contended that none of these documents is purported or could be purported to have an evidence of grant. In totality, counsel submits that the 1st Respondent has failed to prove her title to plot 93 Utako (B05) Abuja. He urged the Court to allow the appeal, set aside the decision of the lower Court and hold that the Appellant is the lawful and beneficial owner of plot 93 Utako (B05) Abuja, being the original allottee of same by virtue of a Certificate of Occupancy No. FCT/ABU/KN/073 but now FCT/ABU/KN/10289 after going through the process of re-certification in 2005 and by a reinstatement made on 30th January, 2006 and complied with on 16th March, 2006.
Learned counsel for the 1st Respondent contended that Exhibit Y (letter from the 2nd and 3rd Respondents dated 30th January, 2006, titled “Review of cases of Revoked Plots”) and the payment of One Million Naira (N1,000,000.00k) on the 16th March, 2006 by the Appellant to the 2nd and 3rd Defendants cannot confer a better title to the land on the Appellant, as against the Statutory Right of Occupancy granted to the 1st Respondent by the 2nd and 3rd Respondent dated 25th March, 2006 pursuant to the Land Use Act.
Learned counsel opined that the main issue in contention between the Appellant and the 1st Respondent revolves on the proper legal interpretation of the principle of qui est tempore proteor est jure, meaning that where equities are equal, first in time takes place. He contended that for the principle to take place, it must be established that the equities are equal. Counsel submits that the administrative letter between the Appellant and the 2nd and 3rd Respondents and even payment by the Appellant are not of equal equity with that of the 1st Respondent which is a holder of a Certificate of Occupancy. He relied on the cases of Oriloye Vs Lagos State (2014) LPELR 22248, Eleran Vs Aderonpe (2012) 1 Nigerian Real Estate Law Report page 17.
It was submitted that from the evidence and circumstances of the instant appeal, it is not controverted that the Appellant did not have a legal title to the land. That even 2nd and 3rd Defendants/Respondents agrees with the position of the 1st Respondent, particularly in paragraph 9 of the 2nd and 3rd Defendant’s statement of defence. He stated that the Appellant only hinged her title on administrative letters and payments etc. which has not ripened into a vested right recognized by Land Use Act. He referred to the case of Oriloye Vs Lagos State (supra), where it was held that a person in the position of the Appellant, cannot claim priority over a holder of a Certificate of Occupancy like the 1st Respondent Counsel relied on Kari Vs Ganaram (supra).
Learned counsel submitted further that the Land Use Act specifies that land in the custody of the Governor in an Urban Area can only be granted by issuance of Right of Occupancy or Certificate of Occupancy and no more. He referred to Section 5 of the Land Use Act. He stated that there can be applications, letters, payments between the Governor and Applicant of a land, but it is only when such application is granted by issuance of the title document provided by Land Use Act that a person will have right or priority. He referred to Section 14 of the Land use Act. He submits that Exhibits Y and J are not evidence of title to land, but an application process towards possible grant of land.
Learned counsel contended that the cases relied upon by the Appellant to argue that the Appellant had priority because of being first in time are not on all fours with the instant case. Thus, the case of Ilona Vs Idakwo referred to by the appellant, counsel stated that in that case a Right of Occupancy was granted to the Respondent’s father per Exhibit 6 in 1964 by Northern Nigeria Government for 40 years. The Court made a finding that the term thereby created was current and subsisting as at the time the case was filed. The grant was not revoked. On the other hand, the Appellant was also granted another Right of Occupancy by Exhibit D and D1 in 1984 and 1986 respectively by the state Government. In this situation, the Court was called upon to determine which of the Rights of Occupancy had priority over the other.
Also, in Kari Vs Ganaram, learned counsel contended the facts in that case show that the two equities considered in the case were a temporary Statutory Right of Occupancy granted in 1983 and a Statutory Right of Occupancy granted 1986. Both are grants by issuance of two separate Rights of Occupancy.
Learned counsel further stated that the principle established in the case of Olohunde Vs Adeyoju (supra), does not support the case of the appellant. That the Court in Olohunde’s case is dealing with a situation where a claimant has a better title to land, than a party with Certificate of Occupancy. He submits in that case the Court deals with claimants to land not granted by Government. He contended that the 1st Respondent in this case has a legal right to the estate, and the Appellant has at best an equitable interest. On the distinction between equitable interest and legal interest in property, counsel referred to Halsbury’s Law of England, 4th Edition, Re-issue Vol. 16 (2) page 261 at paragraph 602.
On the above authority, learned counsel submitted that assuming without conceding that Exhibit Y, J, and X conferred title on the Appellant, the Legal Right of the 1st Respondent who has legal right and who in any way did not have notice of the letters between the Appellant and the 2nd and 3rd Respondent will prevail. He submits further that the Appellant misconceived Section 5 of the Land Use Act 1978. He cited the Section 5 and submits that the 2nd Respondent having revoked the property from the Appellant by Exhibit C, the land was vacant and awaiting grant to another person. He maintained that there was nothing left to be reinstated. Counsel contended that given the pleadings and evidence adduced by the parties, the Plaintiff/ 1st Respondent is entitled to the reliefs sought in her further Amended statement of claim.
It was argued that the plaintiff having tendered Exhibit 2 being a Certificate of Occupancy over the land in dispute, had satisfied one of the method of proving/establishing title to the land. He referred to the cases of Akinduro Vs Alaya (2007) 15 NWLR (part 1057) 312, Johnson & Ors Vs Lawanson & ors (1971) 1 All NLR 56; Ngene Vs Igbo (2000) 4 NWLR (part 651) 131 and Dabo Vs Abdullahi (2005) 7 NWLR (part 923) 181 at 213 – 214. On that, it was maintained that the burden of proof on the plaintiff was discharged by the 1st Respondent when Exhibit 2 was pleaded, tendered and admitted in evidence without objection. He also submitted that on the authority of Ngene Vs Igbo (supra) that though the plaintiff is to rely on the strength of his case, where however the weakness of the defendant’s case tends to strengthen the plaintiff’s case, he can still rely on same. on that basis, he submits that the introduction in evidence that the Right of occupancy of the plaintiff was revoked or cancelled shifts, the burden of proof to the Defendants. He referred to the case of Odogwu Vs ilombu (2007)8 NWLR (part 1037). Learned counsel further stated that in the instant case, the inability of the Appellant to tender and prove notice of Revocation is a burden on him which he could not discharge. He said it was a weakness in the Appellant’s case which tends to strengthen the plaintiff’s case that her Right of Occupancy subsists. He urged the Court to dismiss the appeal.
The crux of the Appellant’s case is that by virtue of exhibits Y letter that “Review of cases of revoked Plots” dated 30/01/2006, her interest over the property in dispute rank superior over the Respondent’s Statutory Right of Occupancy dated 25th March, 2006. The law has long been established that, where as in this present case, there are competing interest by two or more parties claiming title to the same land from a common grantor, the position, both at law and in equity, is that, such competing interests will prima-facie rank in order of their creation based on the maxim qui prior est tempore portior est jure, which simply means he who is earlier in time is stronger in law. See Ahmadu Bello University Vs Fadinamu Trading Co. Ltd & Anor. (1975) 1 NMLR 45; Abiodun Vs Olatunde Fanoiki & Anor. (1990) 2 NWLR (part 131) 137 & 151; Gege Vs Nande (2006) 10 NWLR (part 988) page 256.
The Land Use Act, 1978 vested all land comprised in the territory of each State, except land vested in the Federal Government or its agency solely in the Governor of a State who holds such land in trust for the people and is responsible for allocating the land in all urban areas to individuals and organizations for residential, agricultural, commercial and other purposes. See Calabar Central Co-operative Thrift & Credit Society Vs Ekpo (2001) 17 NWLR (part 743) 649; Bukar Vs Bashir (2014) 11 NWLR (part 1417) part 68 at page 93 ? 94 paragraphs H – A. Under the Land Use Act, a person can only obtain statutory Right of Occupancy over a land by either express grant under Section 5 or deemed grant under Section 34 of that Act.
A Right of Occupancy granted under the Act is and remains valid and effective and is admissible in law as documentary evidence, until legal steps are taken to have it revoked. See Finnih Vs Imade (1992) 1 NWLR (part 219) 511, Abdullahi Vs Bani (2014) 17 NWLR (part 1435) page 1. In the instant case the Appellant’s initial Statutory Right of Occupancy, was revoked by the 2nd and 3rd Respondents. The appellant is not complaining about the said revocation. Though has taken step to have his right over the property reinstated. However, from the date the Appellant’s interest was revoked by the 2nd and 3rd Respondents, he was stripped of any right over the property in dispute. It is also not in doubt that the Statutory Right of Occupancy dated 25/03/2006 (Exhibit 2) granted in favour of the 1st Respondent, was earlier in time than the Appellant’s letter of Re-instatement of Right of Occupancy dated 7/11/2007 (Exhibit X). As earlier stated, where there are two competing claims to a piece of land and they trace their grantor to the same person, the later in time will have to give way to the first in time. See Asheik Vs Borno State Govt. (2012) 9 NWLR (part 1304) page 1 at page 35 paragraphs A – C; Adeniran Vs Ashabi (2004) 2 NWLR (part 837) 247; Auta Vs Ibe (2003) 13 NWLR (part 837) 247; Ilona Vs Idakwo (supra). In the instant case, the 2nd Respondent had already given the land in dispute to the 1st Respondent on 25/03/2006, it cannot at the same time reinstate the Appellant?s interest over the land on 7/11/2007 without properly extinguishing the 1st Respondent’s interest already granted.
The law provides the manner under which a Statutory Right of Occupancy can be revoked. In Obi Vs Minister of FCT (2015) 9 NWLR (part 1465) 610 CA the Court held that by Section 28 of the Land Use Act that one of the grounds for revocation is that the purpose of revocation should be for an overriding public interest. The Court went further to state that this ground is not the only ground for revocation of a plot, on further reading of Section 28 of the Land Use Act Subsection 5 gives other grounds for revocation of a Statutory Right of Occupancy, thus:
a) A breach of Section 10 of the Land Use Act.
b) A breach of any term or special contract contained in a Certificate of Occupancy under Section 8 of the Act; or
c) Refusal or neglect to accept and pay for a certificate which was issued in evidence of a Right of Occupancy but has been cancelled by the Governor under Section 9 (3) of the Act.
In the case of Mulima Vs Usman (2014) 16 NWLR (part 1432) 160 the apex Court laid down the condition precedent for valid revocation of a Statutory Right of Occupancy, thus:
a) Notice of revocation of the existing title should be given to the holder of the Statutory Right of Occupancy;
b) Payment of prompt and adequate compensation. See also Lateju Vs Fabayo (2012) 9 NWLR (part 1304) 159, Jegede Vs CILICON (Nig.) Ltd (2001) 4 NWLR (part 1702) 112.
In the instant case, it has not been established that the Respondent?s title granted on 25/3/2006 was revoked in accordance with above stated authorities, before the Appellant’s title over the land was reinstated on 7/11/2007. The law is that the right of an existing holder or occupier of a parcel of land is not automatically extinguished by the mere issuance of a Certificate of Occupancy to another person. This is because a Statutory Right of Occupancy, deemed or actual, existing over a parcel of land must first be properly revoked or nullified before another one can be issued in its place. See.Mu’azu Vs Unity Bank Plc (2014) 3 NWLR (part 1395) page 512 at page 545 paragraphs C – E, Regd. Trustees of Apostolic Church Vs Olowoleni (1990) 5 NWLR (part 158) 514, Adole Vs Gwar (2008) 11 NWLR (part 1099) 562.
It is also the law that where a Statutory Right of Occupancy is issued when an existing Statutory Right of Occupancy as in the instant case has not been revoked, the subsequent Statutory Right of Occupancy becomes a worthless document because there cannot exist concurrently two title holders over one and the same piece of land. One must of necessity be invalid and the invalid one must be the later right granted without first revoking the former one. See Dantsoho Vs Mohammed (2003) 6 NWLR (part 817) 457; CSS Bookshops Ltd Vs R.T.M.C.R.S. (2006) 11 NWLR (part 992) 530; Omiyale Vs Macaulay (2009) 7 NWLR (part 1147) 597; Edohoeket Vs Inyang (2010) 7 NWLR (part 1192) 25. The Appellant’s letter dated 7/11/2007 reinstating her title over the land in dispute must give way to the Respondent’s Statutory Right of Occupancy dated 25/3/2006 being earlier in time.
In a civil case like the instant case, the general principle of law is that he who asserts has the initial burden of proof. See Sections 131 and 136 of the Evidence Act, 2011; Onyenge Vs Ebere (2004) 13 NWLR (part 889) 20.
In this case, the Respondent as plaintiff before the lower Court, asserted that she is the bonafide owner of the land in dispute. The Courts in a plethora of cases have established five ways of proving title to land to wit:
a) By traditional evidence, or
b) By production of documents of title which are duly authenticated, or
c) By act of selling, leasing, renting out all or part of the land, or farming on it or on portion of its, or
d) By act of long possession and enjoyment of the land, or
e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected land would in addition, be the owner of the land in dispute. See Idundun Vs Okumagba (1976) 9 – 10 SC 227; Nkado Vs Obiano (1997) 5 NWLR (part 503) 31; Mani Vs Shanono (2006) 4 NWLR (part 969) 132; Bukar Vs Bashir (2014) 11 NWLR (part 1417) page 68 at page 85.
The Plaintiff/Respondent in this case relied on a document of title (Exhibit 2), as a means of proving her title to the land in dispute. The law has been settled in a myriad of cases that production of document of title does not automatically entitled a party to a claim in declaration of titled to land. See Ayorinde Vs Kuforiji (2007) 4 NWLR (part 1024) 341; Dosunmu Vs Dada (2002) 13 NWLR (part 783) 1; Romaine Vs Romaine (1992) 4 NWLR (part 238) 650; Kyari Vs Alkali (2001) FWLR (part 60) 1481; Dabo Vs Abdullahi (2005) 7 NWLR (part 923) 181.
The production and reliance on document of title by a party imposes a duty on Court to inquire into some or all of a number of questions including:
i) Whether the document is genuine and valid;
ii) Whether it has been duly executed, stamped and registered;
iii) Whether the grantor had the authority and capacity to make the grant;
iv) Whether the grantor had in fact what he purported to grant; and
v) Whether it has the effect claimed by the holder of the instrument.
See West African Cotton Ltd & Anor Vs Alhaji Boko Maiwada (2007) LPELR – 5097, page 22 – 23 paragraph D – D.
Exhibit 2 in this case is a valid and genuine document, it is duly signed and executed. The Appellant did not establish that the document was procured by fraud or misrepresentation. By Section 1 of the Land Use Act, the Minister of the Federal Capital Territory, Abuja has the authority and capacity to make the grant in favour of the Respondent, the fact is that the land was validly revoked from the Appellant at the time the grant was made to the Respondent. To this end, Exhibit 2 has all the pre-requisite to confer title on the Respondent over the land in dispute. In view of the foregoing and all that has been said in the resolution of these issues, the two issues for determination in this appeal are hereby resolved against the Appellant and in favour of the Respondent.
In conclusion, having resolved the two issues for determination against the Appellant, the appeal is devoid of any merit, same is hereby dismissed. The Judgment of the lower Court delivered in Suit No. FCT/HC/CV/481/2008 by Hon. Justice M. M. Dodo on 19th March, 2015 is hereby affirmed. There will be no order as to costs.
ABDU ABOKI, J.C.A.: I read in advance a draft of the lead judgment just delivered by my Learned Brother ADAMU JAURO, JCA. His Lordship has diligently dealt with the issues arising for determination, and I agree with his reasoning and conclusion.
Indeed, the law is well settled and firmly established and beyond reproach that where two persons lay claim of title to a parcel of land allegedly allocated to them by a common grantor, the first in time clearly takes priority, because it is stronger in law. Therefore, at law and also in equity, the doctrine is that estates and interests created thereon, primarily rank in the order of their creation. So he who is earlier or first in time, is stronger in equity. That is the rationale for the maxim, qui prior est tempore portior est jure. See: AYANWALE v. ODUSAMI (2011) 12 SCNJ 362,
ERO v. TINUBU (2012) 8 NWLR (PT. 1301) 104, IBBI LTD v. MUTUNCI CO. (NIG) LTD. (2012) 6 NWLR (PT. 1297) 487 AT 524.
In ASHIRU V. OLUKOYA (2006) 11 NWLR (PT. 990) P. 1 @ 23, the Supreme Court held that where two or more competing documents of title, upon which parties to a land in dispute rely for their claim of title to such land, originated from a common grantor, the doctrine of priorities pursuant to the well recognized maxim, qui prior est tempore, portior est jure, meaning that he who is first has the strongest right, dictates that the first in time takes priority.
In the instant case, it is not in doubt that the Statutory Right of Occupancy dated 25/03/2006, (Exhibit 2), granted in favour of the 1st Respondent was earlier in time than the Appellant’s Letter of Re-instatement of Right of Occupancy date 7/11/2007 (Exhibit X). The 2nd Respondent had already granted the land in dispute to the 1st Respondent before the purported reinstatement of the Appellant’s interest over the land. The 1st Respondent’s right/claim over the demised property is therefore first in time, and without the 2nd Respondent properly extinguishing the 1st Respondent’s interest already granted, the purported reinstatement of the Appellant’s interest over the disputed property, is void.
For this and the well articulated reasoning in the lead judgment of my Learned Brother ADAMU JAURO, JCA, I also adjudge this appeal to be devoid of merit and it is hereby dismissed. The decision of the Trial Court is hereby affirmed.
I abide by the consequential orders of the lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice Adamu Jauro, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
Mohammed Adelodun, Esq. with him, Abdulrahman Belgore, Esq.For Appellant(s)
Prince Orji Nwafor Orizu with him, S. N. Anichebe, Esq., Ugochukwu Ifeakandu, Esq. Ogechi Igwe Mrs. and E. I. Umonnakwa, Esq.For Respondent(s)
