ALH. JIMOH AJADI SUU V. JOBAK NIGERIA LTD.
(2012)LCN/5317(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of April, 2012
CA/IL/76/2010
RATIO
WORDS AND PHRASES: MEANING OF NEGATE
The word ‘negate’, by ordinary dictionary meaning, means ‘to deny’, “nullify”; “imply non-existence of.” see chambers Twentieth century Dictionary by AM Macdonal OBE BA (Oxon) New Edition, page 882. PER ITA GEORGE MBABA, J.C.A.
WORDS AND PHRASES: MEANING OF RECITAL
The Black’s Law Dictionary (supra) presents recital as: “A preliminary statement in a contract or deed explaining the reasons for entering into it, or the background of the transaction, or showing the existence of particular facts.” PER ITA GEORGE MBABA, J.C.A.
COURT: DUTY OF A COURT IN RELATION TO CASES BEFORE IT
As rightly stated by learned counsel for the Appellant, relying on the case of Adenuga v. Okelola (2008) ALL FWLR (Pt.398) 292 at 395:
“A Court’s decision must be anchored on the evidence adduced before it and on reason. On no account should it be based on the intuition of the judge or conjecture or what the judge conceives to be fair conclusion…”
And by the case of Shasi v. Smith (2009) 12 MJSC (Pt.11) 150 at 164 – 165, it was held:
“The duty of the Court is to consider the case before it in the light of the parties’ complaints. It has no business setting up for the parties a case different from the one set up by the parties in their pleadings. To do so will result in the denial to one or the other of the parties of his right to fair hearing.”
The point must also be made, as per the case of International Finance Corp vs. DSDW (supra) that in the determination of dispute between Parties in Court, the decision must be confined to the issues properly raised by the parties. It is not competent for a Court suo moto to make a case for either or both of the parties and then proceed to give judgment on the case so formulated, contrary to the case of the parties before it. When an issue is not property placed before the court, the court has no business whatsoever to deal with it…” PER ITA GEORGE MBABA, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CIVIL MATTERS
On the whole, I am of the candid view that the Appellant discharged the burden cast on him to prove his case on the balance of probabilities and preponderance of evidence as required in civil matters. See Sections 131-133(2) and Section 134 of the Evidence, Act, 2011 and the cases of UTB (Nig.) Ltd. v. Ajagule (2006) 2 NWLR (pt.965) 447 at 481; E.A. Ind. Ltd. v. NERFUND (2009) 8 NWLR (pt.1144) 535 at 590 and Akiniboni v. Akiniboni (2002) 5 NWLR (pt. 761) 564 at 580. PER IGNATIUE IGWE AGUBE, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
ALH. JIMOH AJADI SUU Appellant(s)
AND
JOBAK NIGERIA LTD. Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal who was the claimant at the lower court appealed against the judgment of Honourable Justice Halimat Saleeman, Kwara State High Court, in suit No. KWS/223/2005, delivered on 24th April, 2009 whereof the trial judge dismissed the claim for declaration of title, injunction and damages sought by the claimant in respect of the land in dispute, measuring 100 by 125 feet (2 1/2 plots), situate at Ita-Ayisa on the right hand side of Ilorin – Ajase Ipo Road, Ilorin, located within Ilorin west Local Government – Area of Kwara state.
The claimant had sought a declaration that he was the deemed holder and entitled to statutory right of occupancy over the said land and an injunction restraining the Defendant (Respondent herein), its servants, agents and privies and any other person(s) claiming through under it from developing, building or selling, disposing, alienating, or in any manner, dealing with and/or trespassing or further trespassing on the said parcel of land. (see page 4 of the Record of Appeal).
Appellant filed his Notice and Grounds of Appeal on the 6th of July, 2009 and framed eleven (11) grounds of appeal as shown on pages 180 to 186 of the Record of Appeal. He thereafter filed his Brief on 28/9/2010 within time, and a Reply Brief on 15/2/2012 which was deemed duly filed on 21/2/2012. He distilled 4 Issues for the determination of the Appeal, as follows:
(1)Whether or not the Lower Court was right in its rejection of copies of letters dated 06/04/2005 and 29/05/2005 written to the Director of Lands, Kwara State and Divisional Police Officer, Ganmo Police Station by the Appellant on the ground that they are public documents which require certification (Ground 10).
(2)Whether or not, having regard to the State of pleadings and evidence before the Court, the Lower Court was right in holding that the standard of proof in land matter is sui generis and an exception to the two principles of law on effects of admission by pleadings and unchallenged evidence and that because paragraph 4 of appellant’s Amended Statement of claim negated paragraphs 6, 11, 12 and 13 of the same Amended Statement of claim, the respondents’ case could not support that of the appellant (Ground 4).
(3) Whether or not the lower Court was right in its conclusion/decision that Section 34 (5) of the Land Use Act 1978 is not applicable to the appellant because the appellant failed to prove his claim by reasons of contradiction in the pleadings and evidence of the claimant/appellant, particularly the evidence of PW1 and Exhibit P1 on the appellant’s root of title, the appellant’s failure to prove the pleaded traditional history of ownership and exclusive possession and in view of rival claim of possession by the defendant/respondent (Grounds 1, 2, 3, 5, 6, 7 and 11).
(4)Whether or not the Lower Court was right in holding that having regard to Exhibits D1, D2, D3 and D6, the land in dispute was lawfully and legally acquired and the issuance of Exhibit D5 to the Respondent was proper under the Land Use Act 1978 (Grounds 8 and 9).
At the hearing of the Appeal on 21/2/2012, Appellant’s counsel swapped relationship of issues and the grounds of appeal between issues 2 and 3, by saying that issue 3 was distilled from ground 4 while issue 2 was distilled from grounds 1, 2, 3, 5, 6, 7 and 11.
The Respondent’s Brief was filed on 16/12/2011 and was deemed duly filed on 26/1/2012. The Respondent adopted the four (4) issues distilled by the Appellant but with slight modifications, as follows:
“(1) Whether the lower Court was wrong when it rejected the letters dated 29/05/2005 and 06/04/2005 purportedly addressed to the Divisional Police Officer, Ganmo and the Ministry of Lands respectively, by the Claimant/Appellant’s solicitor on the ground that they (the said letters) are public documents which require certification. (Ground 10).
(2) Whether from the totality of the pleadings and evidence before the Lower court, the Lower court was wrong when it found that the standard of proof in this situation was sui generis and thereafter dismissed the claimant/Appellant’s suit for want of sufficient proof and on the ground that the Defendant/Respondent’s case did not support that of the Appellant (Grounds 4).
(3) Whether judging from the totality of the pleadings and evidence before the lower court, the lower court wrongly evaluated Section 34(5) of the Land Use Act 1978 against the Claimant/Appellant (Grounds 1, 2, 3, 5, 6,7 and 11).
(4) Whether the Lower Court rightly analyzed Exhibit D1, D2, D3 and D6 when it concluded that the land in dispute was lawfully and legally acquired and whether Exhbit D5 was properly issued to the Respondent in line with the dictates of the land use Act 1978. (Grounds 8 and 9)”.
At the hearing counsel on both sides addressed this court, accordingly, and the Appellant’s counsel received permission to cite additional authorities – UDENGWU v. UZUEGBU (2003) 13 NWLR (Pt.836) 136 at 152 – 154 – on their issue 2, an authority which the Respondent said is not relevant to this appeal.
Arguing the Appeal, learned Counsel for the Appellant Salman Jawondo Esquire (with him Idris Abdullahi Esquire), submitted, on Issue 1, that the learned trial judge erred in rejecting in evidence the Appellant’s filed copies of letters dated 06/04/2005 and 29/05/2005, written to the Director of Lands, Kwara State and the Divisional Police Officer, Ganmo Police Station, respectively, on the grounds that the two documents were public documents which required certification, and having not been certified, were inadmissible; that the two letters were appellant’s copies of the latter written to those officers, and were not public documents within the definition of public documents in Section 109(a) of the Evidence Act. He reproduced the provisions of section 109(a) and (b) of the Evidence Act and submitted that the same have enjoyed judicial pronouncements from our courts, and relied on the case of DALE POWER SYSTEMS PLC v. WITT & BUSCH LTD (2007) ALL FWLR (Pt.394) 353 at 367 – 368; C.C.B Ltd v. Odogwu (1990) 3 NWLR (Pt.140) 646; Nieogwuile v. Otuo (2001) 6 SC 200; Agagu v. Dawodu (1990) 7 NWLR (pt.160) 56 and Gardoso v. Daniel (1986) 2 NWLR (Pt.20) 1.
Counsel submitted that while appellant concedes that the two addressees to whom the rejected documents were addressed are public or official institutions, by virtue of which the copies delivered to them and kept in their records became or are public documents, within the provision of Section 109 (a) of the Evidence Act the Appellant’s filed copies of the originals of the letters are not public documents, because Appellant is not a public institution or body. He relied on the case of University of Ilorin vs. Oluwadare (2009) ALL FWLR (Pt.441) 839 at 868:
“As the learned counsel for the applicant has rightly argued, the document annexed as exhibit A (the Notice of Appeal) is not a public document as such but a private document prepared and filed in the court to show that they were ready to appeal against the judgment of the lower Court. It was produced, not from the custody of the court so as to call for certification, but from the appellants and exhibited to inform the coming of their intention to prosecute an appeal. Section 97 (2) of the Evidence Act and other related sections are therefore not applicable to the circumstances of this application.”
Thus, counsel submitted, the letters in controversy were not public documents, but private documents as stated in Section 110 of the Evidence Act, and so required no certification to be admissible.
On issue 2, Appellant submitted that having regard to the state of pleadings and evidence, that the learned trial court was in error to have held that the standard of proof in land matters is sui generis and an exception to the two principles on effects of admission by pleadings and unchallenged evidence and that paragraph 4 of the Amended statement of claim negated paragraphs 6, 11, 12 and 13 of the Amended Statement of claim as such the Respondent’s case did not support the appellant’s.
Counsel submitted that the standard of proof on land matters is the same as in any other civil claim – which is on the balance of probabilities, not in any way sui generis. He relied on the case of Adawon v. Asoga (2008) ALL FWLR (pt.420) 742 at 758:
“In a claim for declaration of title, the onus is always on the plaintiff to establish his claim, and it is not open to him to rely on the weakness of the defendant’s case. The standard of proof in such cases is not different from that required in civil, case generally. The only difference rests on the fact that the burden of proof is on the plaintiff who is claiming title and that it never shifts to the defendant throughout the trial. The difference therefore lies not in the standard of proof but on the burden of proof.”
Counsel submitted that the phrase ‘sui generis’ means “of its own kind; of its own kind or class, unique and or peculiar” and relied on the BLACK’S LAW DICTIONARY, 8th Edition by Bryan A. Garner, page 1475. Counsel submitted that, while it is the law that a claimant in a claim for declaration of title to land must rely on the strength of his own case and not on the weakness of the defendant’s case, it is also the law that an exception to this is where the defendant’s case supports the claimant’s, in which case the claimant can take advantage of the supportive evidence from the defendant. He relied on the case of Network Security Ltd v. Dahiru (2008) ALL FWLR (Pt. 419) 475 at 498; Adesanya v. Otuewu (1993) 1 NWLR (Pt.270) 414; SANUSI v. AMEYOGUN (1992) 4 NWLR (Pt.237) 527, ODUKWE v. OGUNBIYI (1998) 8 NWLR (pt.561) 339 and OSHO v. APE (1998) 8 NWLR (Pt.562) 492, OLUKOYA v. ASHIRU (2006) 5 SC. (Pt.11) 1 at 23 – 24.
Counsel further submitted that the principle of law on effect of admission by pleadings applies with full force in land matters as it is in other case. He relied on Salawu v. Yusuf (2007) 5 SC 35 at 60; Salamatu v. Biba (1975) NWLR 176; Onigbede v. Balogun (2002) 2 SCNJ 219 at 232.
With respect to legal effect of unchallenged evidence, counsel submitted that the principle applies in all matters including land matters, except where corroboration is statutorily or as a matter of practice, required. He relied on the case of Usiobaifo v. Usioabife (2005) 1 SC. (pt.11) 60 at 67 Shell Petroleum Development Co. Nigeria v. Edamkwue & Ors (2009) 7 M JCS (Pt. 1) 194 at 204 where it was held.
“The law is well settled that a trial court is entitled to rely and act on the uncontroverted and un-contradicted evidence of a plaintiff or his witnesses. In such a situation, there is nothing to put, or weigh on the imaginary or proverbial scale. The onus of proof is naturally discharged, on a minimum of proof.” See the case of Nwabuko vs. Ottih (1961) 2 SCNLR 232; Oguma Associated Companies (Nig.) Ltd vs. IBWA Ltd (1988) 1 NWLR (pt. 73) 658 at 682; (1988) 3 SCNJ 13; Balogun vs. UBA Ltd (1992) 6 NWLR (pt. 247) 336 at 354; (1992) 7 SCNJ 61; Adenugba vs. Okelola (2008) ALL FWLR (pt.398) 292 at 312.
Thus, counsel said the principles of law on the effects of admission by pleadings and unchallenged evidence are not exempted in the standard of proof in land matters as the standard of proof in land matters is not unusual one nor is it sui generis; that the learned trial judge was wrong in holding to the contrary.
on the decision of the trial court that paragraph 4 of the Amended Statement of claim negated paragraphs 6, 11, 12 and 13 of the Amended statement of claim, appellant submitted that such a conclusion can only be arrived at by inverted startling and strained construction, if not, by fertile imagination. He reproduced the said paragraphs 4, 6, 11, 12 and 13 of the Amended Statement of Claim, and submitted that a juxtaposition of paragraph 4 of the Amended Statement of claim with paragraphs 6, 11, 12 and 13 of the same Amended Statement of claim cannot, by any stretch of imagination, be interpreted to or equated to paragraph 4 negating or denying or nullifying paragraphs 6, 11, 12 and 13; that the word negate means ‘deny’ “to nullify’, “to render ineffective” and relied on the BLACKS LAW DICTIONARY, 8th Edition by Bryan A. Garner, page 1061.
Rather, he said, a reasonable conclusion to be drawn from reading of paragraphs 4, 6, 11, 12 and 13 of the Amended Statement of claim is that the paragraphs constitute the pleading of the appellant’s root of title through PW1, the original customary owner, and how PW1 and his Agbetu family became the original owner of the Ita Ayisat lands including the land in dispute. He added that the conclusion by the learned trial judge that paragraph 4 negated paragraphs 6, 11, 12 and 13 was a manifestation of gross misapprehension of the appellant’s case, which misapprehension occasioned serious miscarriage of justice on the appellant as it was the misapprehension that led the learned trial judge to come to the erroneous and perverse decision that the evidence of PW1 contradicted Exhibit 1 and that the Appellant did not prove the pleaded traditional history. Counsel urged us to examine and consider the relevant paragraphs of the Amended statement of claim and the evidence led and make the necessary finding and draw the necessary natural conclusion(s). He relied on the case of Adenugba vs. Okolola (supra) at 304 -305.
Counsel further submitted that the learned trial judge’s conclusion that paragraph 4 of the Amended Statement of Claim negated paragraphs 6, 11, 12 and 13 thereof, was a breach of the Court’s duty to consider the case before it in the light of the parties’ complaint and not on intuition. He relied on the case of Shasi vs. Smith (2009) 12 MJSC (Pt. 11) 150 at 164 – 165.
“The duty of the court is to consider the case before it in the light of the party’s complaints. It has no business setting up for the parties a case different from the one set up by the parties in their pleadings. To do so will result in the denial to one or the other of the parties of his right to fair hearing.”
See also Adenugba vs. Okolola (supra) at 305:
“A court’s decision must be anchored on the evidence adduced before it and on reason. On no account should it be based on the intuition of the Judge or conjecture or what the Judge conceives to be a fair conclusion. Evaluation of evidence by a trial Court is of utmost importance in the adjudication process. It is not possible to have findings of facts by a judge without first evaluating the evidence before him (NBN v. Uche Chyke Holdings Ltd (2004) ALL FWLR (pt. 204 155 referred to).” Counsel submitted that the issue of paragraph 4 of the Amended statement of claim negating paragraphs 6, 11, 12 and 13 of the same document never arose before the court; that the court just raised it in its judgment, thereby making a case for the Respondent, and basing its decision on it and that was improper. He relied on the case of International Finance Corp. vs. DSNN Offshore Ltd (2008) ALL FWLR (Pt.403) 1204 at 1292; Rabiu vs. Hammond Projects Ltd (2007) ALL FWLR (Pt.395) 484 at 499 and Olugeagba vs. Abdul-Raheem (2009) 12 MJSC (Pt.1) 164 at 199
Counsel submitted that the trial court was wrong to have held that the respondent’s case did not support that of the Appellant because paragraph 4 of the Amended statement of claim ‘negated’ paragraphs 6, 11, 12 and 13 of the same Amended statement claim, when from the state of pleading and evidence on record, the Respondent admitted or did not dispute the Appellant’s case as far as the issue of title is concerned, and did not challenge the appellant’s evidence on the same issue. He referred us to paragraphs 3, 4, 5, 6, 7 , 8 -14 of the Amended Statement of claim on pages 58-59 of the Record, vis-a-vis, paragraphs 1, 2 and 3 of the Amended Statement of defence on page 69 of the Record, and evidence of PW1 (Pages 10 -11) and PW2 (pages 12-13) vis-a-vis the evidence of DW4 (pages 19 – 20).
Counsel submitted that, notwithstanding the principle that a claimant in a suit for declaration of title to land must succeed on the strength of his own case and not on the weakness of the defendant’s case, the principles of effects of admission on pleading or none joinder of issues and unchallenged and uncontroverted evidence apply to reduce the standard of proof to one of minimal standard. He relied on the case of Adewuji v. Odukwe (2005) 7 SC (pt. 11) 1 at 13 – 14, where the Supreme Court said: “The burden of proof in land matters is stated by the Supreme Court in Kaiyola vs. Egunla (1974) 12 SC (Reprint) 49, at 61 as follows: we are not unmindful of the fact that it is a well established principle of law that in a claim for declaration of title, the onus is always on the plaintiff to establish his claim, and that it is not open to him to rely on the weakness of the defendant’s case. This court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is whether the plaintiff has been able to prove to the satisfaction of the Court that he has better title than the defendant.
….The standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally. The only difference rests on the fact that the burden of proof is on the plaintiff who is claiming title and that it never shifts to the defendant throughout the trial. The difference therefore lies not in the standard of proof but on the burden of Proof.”
Counsel urged us to resolve the two issues in Appellant’s favour.
On Issue 3 Whether the lower Court was right in its conclusion/decisions that Section 34 (5) of the Land Use Act 1978 is not applicable to the appellant, because he failed to prove his claim by reason of contradiction in the pleadings and evidence of the claimant/appellant particularly the evidence of PW1 and Exhibit P1 on the appellant’s root of title, the appellant’s failure to prove the pleaded traditional history of ownership and exclusive possession and in view of trial claim of possession by the defendant/respondent, counsel submitted that the conclusion/decision of the trial judge that section 34 (5) of the Land Use Act 1978 is not applicable to the appellant (for the reasons stated) was erroneous; he said that the appellant’s pleadings and evidence of PW1 did not contradict Exhibit P1 in any way; that the erroneous conclusion of the trial judge led him to surmise that:
(i) Paragraph 4 of the Amended Statement of Claim traced the claimant’s root of title to “Alhaji Akanbi Ita-Ayisat the Original owner” while paragraph 11 of the same traces the root of title to PW1’s family “from time immemorial”
(ii) PW1 claimed to have sole (sic) the land in dispute to the claimant as rightful beneficial owner; later in evidence he admitted the land is owned by his family at Agbetu
(iii) By virtue of (i) and (ii) above, the appellant’s pleadings and PW1’s evidence contradict Exhibit p1.
(iv) The claimant’s root of title in Exhibit p1, even though the document was tendered as RECEIPT, is inconsistent with facts in issue by section 12 (a) & (b) of the Evidence Act.
Appellant repeated that there was no conflict between paragraph 4 and paragraph 11 of the Amended statement of claim; that while paragraph 4 shows from whom, when and how the appellant purchased the land in dispute, paragraph 11 shows how the appellant’s vendor became the owner of the entire Ita-Ayisat lands, including the land in dispute; that the evidence of PW1 did not contradict the said paragraphs, nor Exhibit P1; that the pw1 sold the land to the claimant as the owner and in his capacity as the head of the family – Agbetu. He referred us to the evidence of the PW1 on Page 10 of the Record. Counsel added that the use to which the trial judge made of Exhibit P1 and the conclusion he arrived at did not accord with the law when he relied on the Recital in Exhibit P1 which presented the Pw1 as beneficial owner of the land in dispute saying the same contradicted his (PW1 ) evidence that he (PW1) sold the land in dispute to the Appellant as the owner and in his capacity as the head of Sule Agbetu Family; counsel P1 repeated that there was no conflict in the evidence. He argued that Exhibit P1 was tendered as Receipt, not as deed of Transfer and therefore it can only be used as Receipt and no more. He relied on the case of West African Cotton Ltd & Ors vs. Zazzau Ginnery Ltd (2008) ALL FWLR (Pt.405) 1784 at 1796:
“A registrable but unregistered instrument can be tendered and admitted in evidence to establish evidence of transaction and to prove payment and receipt of money. If coupled with possession, it raises an equitable, interest in the land. A purchase receipt is, however not equitable interest in the land.
A purchase receipt is however not admissible to prove title.
(Savannah Bank Plc vs. Ibrahim (2000) FWLR (Pt. 25) 1526, (2000) 6 NWLR (pt. 662) 585; Olowolaramo vs. Umiechukwu (2001) 2 NWLR (pt.805) 537; Ogunbambi vs. Abowab (1951) 13 WACA 222 referred to).”
He added that it is trite that a document tendered for a particular purpose cannot be used for any other or general purpose, and relied on the Supreme Court case of Ishola vs. Union Bank Nig. Ltd (2005) 2 SC (Pt.11) 80 at 89:
“The Court can only use a document properly admitted before it for the purpose for which it was admitted. It is not open to the Court to use the document other than for the purpose intended by the parties as pleaded, unless the attention of the court is drawn by any of the parties before it to do so. And even in that case, the Court must invite all the parties before it to address it on the point before making a decision on it.”
Counsel therefore submitted that the learned trial judge was in serious error by having recourse to the RECITAL in Exhibit P1, to arrive at the conclusion that the pleadings and evidence of PW1 contradicted Exhibit P1 on the appellant’s root of title. He submitted that even if the trial judge was right in using Exhibit P1, not as receipt only (without conceding) that the trial judge still failed into serious error by concluding that the evidence of PW1 contradicted Exhibit P1 on appellant’s root of title.
Counsel submitted that the fact that the pleadings and evidence of PW1 and PW2 are to the effect that that pw1 sold the land in dispute to the appellant as the owner and in his capacity as the head of PW1’s Sule Agbetu Family, while Exhibit P1 claims that PW1 sold the land as the beneficial owner does not, in any way, affect the appellants root of title to the land; that the un-contradicted and unchallenged evidence before the court and on the Record is that PW1; was/is the head of Sule Agbetu land owning family as at 1976, when he sold the land in dispute to the Appellant. Counsel added that the capacity in which the pw1 sold the land was even irrelevant for the purpose of the case, as that issue was not raised and canvassed in this case. In any event, counsel submitted, that the position of the law on sale of family land by the head of the family, without the concurrence of the principal members of the family is voidable, at the instance of the members of the family only (Ibe vs. Ibe (2008) ALL FWLR (Pt. 11) 132.
He urged us to hold that the evidence of PW1 did not contradict Exhibit P1, and that the sections 12 (a) and (b) and 132 of the Evidence Act relied upon by the trial court did not apply to the case of the Appellant; that no oral evidence was given to contradict, alter, add to or vary written contents of judgment of any court, judicial or official proceedings, or any contract or any grant or other disposition of property- He relied on the case of Comfort Obiazikwor v. Jude Chike Obiazikwor (2007) ALL FWLR (Pt.371) 1602 at 1624.
He further relied on the case of Pastor J. Akintotu Akinduro vs. Alhaja Idris Alaya (2007) ALL NWLR (Pt. 381) 1653; Afribank Nig. Ltd vs. Mosland Enterprises Ltd (2008) ALL FWLR (Pt. 421) 877; Mantee Water Transport Nig. Ltd vs. Petroleum (special) Trust Fund (2008) ALL FWLR (pt. 439) 499 on the fact that there was no challenge to the evidence of the PW1 that he sold the land to the Appellant, and that the court was bound to use the same; that the Respondent did not even cross examine the PW1 and PW2 on the issue of Appellant’s root of title. WAEC vs. OSHIONEBO (2007) ALL FWLR (PT.370) 1501 AT 1509 AND 1516; AGBO V. STATE (2006) 1 SC 73; SPDC (NIG.) V. EDAMKUESORS (SUPRA) Ogunyade vs. Oshunkeye & Ors (2007) All FWLR (Pt. 389) 1179 at 1192-1193; OWNERS OF MV GONGOLA HOPE & ORS V. SMURFIT CASES NIGERIA LTD (2007) ALL FWLR (PT.388) 1005 AT 1026; ALHAJI MANSUR AHMED & 3 ORS V. THE REGISTERED TRUSTEES OF THE ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2007) ALL FWLR (PT. 347) 623 AT 656 AND 657.
With respect to the rival possession by the Respondent, relied upon by the lower Court, Appellant’s Counsel submitted that the alleged acts of possession by the Respondent were anchored on grant of the land to the Respondent vide Exhibit D5 (Certificate of occupancy) by the Kwara State Government on the Respondent’s request. (Exhibit D1). Appellant submitted that in view of the proven ownership of the land by the appellant (who was the customary owner) and in the absence of lawful acquisition for over-ridding public interest, as required by Section 22 of the Land Use Act 1978, the acts of possession by the Respondent, if any, amounted to acts of trespass. He relied on the case of Mrs. Florence O. Carrena & Anor. vs. Chief Akinilase & 11 Ors. (2008) ALL FWLR (Pt. 444) 1403 at 1422.
“A person, who has title over a piece of land, though not in de facto physical possession, is deemed, in the eyes of law, to be the person in possession. This is because the law attaches possession to title and ascribes it to the person who has title such a possession is the legal possession which is sometimes also called constructive possession. Conversely, a trespasser, though in actual physical possession of the land is regarded in law not to be in any possession since he cannot, by his own wrongful act of trespass acquire any possession recognized at law. Thus, where there are rival claimants to possession of a piece of land, the law ascribes possession to the party who has title or better title. (Aromire v. Awoyeni (1972) 1 ALL NLR (Pt. 10 101; Kareem vs. Ogunde (1972) 7 SC 182; Ayinla vs. Sijuwola (1984) 1 SCNLR 410; Eleretsu vs. Oyobebere (1992) 1 NWLR (Pt. 266) 438)”
Thus, Appellant’s counsel submitted, that the Respondent’s rival claim of possession was therefore of no moment, so as to dislodge the Appellant a customary owner. He relied on the case of Chief Toyinbo Adawon vs. Saanu Asogba & 2 Ors (2009) ALL FWLR (Pt. 420) 742 at 752.
“There is no such thing in the eyes of the law as concurrent possession by two persons claiming adversely to each other. What the law does is to ascribe possession to one of them with better title. (Awoyoolu vs. Aro (2006) 4 NWLR (Pt. 971) 481; Egba vs. Appah (2005) 10 ALL FWLR (Pt.934) 464; Anyakora vs. Obiakor (2005) ALL FWLR (Pt. 919) 507; Adedipe vs. Theophilus (2005) 16 NWLR (Pt. 951); Oyeneyin vs. Akinkugbe (2010) 1 MJSC (Pt. 11) 17 – “when the issue as to which of the two claimants has better right to possession or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title.”
He urged us to resolve this issue in Appellant’s favour.
On Issue 4 – whether or not the lower Court was right in holding that having regard to Exhibits D1, D2, D3 and D6, the land in dispute was lawfully and legally acquired and the issuance of Exhibits D5 to the respondent was proper under the Land Use Act, 1978, counsel answered in the negative. He submitted that of Exhibits D1, D5 and D6, the only document that relates to acquisition of land is Exhibit 6, which was not addressed to any person or group of persons and there was no evidence that it was served on any person.
Counsel said the evidence of DW4 on the purported service of Exhibit D6 is not one envisaged by law (page 136) and relied on the case of Ononiju v. A.G. Anambra State (2009) 5 MJSC (Pt.1) 46 at 87, on the position of the law: that publication of revocation in the gazette without personal service of same on the persons concerned does not make the acquisition/revocation valid. Dee Integrated Rubber Product Nigeria Ltd vs. Aviawe (1992) 5 NWLR (pt.243) 572:
“It is clear from the above that the revocation of the rights of the appellants on the land in question was invalid for reasons of non-service of the statutorily required notice of revocation/acquisition and consequently null and void initio. It follows therefore, and very clearly too, that subsegent step taken by the 1st and 2nd Respondents in consequence of the relocation/acquisition, such as grant of a portion of the purportedly acquired land to the 3rd Respondent for whatever purpose – whether public or private – is clearly null and void as you cannot put something on nothing and expect it to stand. Secondly, it is a principle of our law that you cannot give what you do not have as expressed in the Latin Maxim: Nemo dat quad non habit”
Counsel submitted that the Respondent who based his defence and title to the land on acquisition and subsequent issuance of Certificate of Occupancy by Kwara State Government has a duty to prove valid and lawful acquisition under Sections 1, 2, 28, 34 and 35 of the Land Use Act, 1978. And to discharge that burden, the Respondent has to prove:
(i) Issuance and service of Notice of acquisition on the appellant as the customary owner
(ii) Payment of compensation to the customary owner, and
(iii) That the acquisition is for overriding public interest as provided in Section 28 of the Land Use Act, 1978.
He relied on the case of Ononuju v. A.G. Anambra state (supra) 46 at 70 -71; where it was held:
“No one, including the government, can deprive a holder or occupier of a parcel of land of his holding unless the land is acquired compulsorily in accordance with the provisions of the Land Use Act (for overriding public interest or for public purpose by the Local Government or State Government) and by virtue of Section 28(4) of the said Act, upon payment of compensation. See Ogunleye vs. Oni (1990) 2 NWLR (Pt.135) 745″ See also Provosts, Lagos State College of Education vs. Dr. Kolawole Edun & Ors (2004) 2 SC (Pt.11) 17 at 41; CSS Bookshop Ltd v. The Resgistered Trustees of Muslim Community in Rivers State & Ors (2006) 4 Sc (pt.11) 142 at 161 – 162; Major Shehu Ibrahim v. Dr. Junaid Saleh Mohammed (2003) 2 SC 127 at 137.”
Counsel said that there was no evidence of service of Exhibit D6 on the Appellant who was/is the owner of the land as at the date of Exhibit D6; that from the evidence of DW4, there was no evidence of payment of compensation to the Appellant or any person in respect of the land covered by Exhibit D6. Thus, there is no evidence of valid acquisition see Adole v. Gwair (2008) 5 MJSC 38 at 51.
He added that from the evidence of DW3 and DW4 (Page 131 and page 137 of the Record) it is clear that the grant of the land to the Respondent, vide Exhibit D5, was for the private business and benefit and profits of the Respondent and not for overriding public interest as prescribed by the law. He relied on the case of Aminu Dantosho vs. Alhaji Ahubakar Mohammed (2003) 2 S C. 42 at 58.
This, he said, assuming (but not conceding) that the acquisition was lawful the subsequent grant of the land in dispute to the Respondent vide Exhibit D5 for the private business and benefit of the Respondent rendered the acquisition invalid, ineffective and liable to be set aside. He relied on Adole v. Gwar (supra) at 85; CSS. Bookshop Ltd vs. Registered Trustees of Muslim Community of Rivers State (supra) at 161 162; Major Shehu Ibrahim vs. Junaid Saleh Mohammed (supra) at 137 -138; Alhaji Goni Kyari v. Alhaji Guoma Alkali (2001) 5 SCNJ 421 at 452.
Counsel finally submitted that since Exhibits D1, D2, D3 and D4 relied upon by the learned trial judge are based on the purported acquisition of the area of land described in Exhibit D6, the invalidity of the acquisition renders them (Exhibits D1 to D4) in-valid too; he stressed that Exhibit D5 cannot be anchored on invalid Exhibits D1, D2, D3 and D6, as something cannot be put on nothing and be expected to stand. He also relied on the case of Udo vs. Effiom (2008) ALL FWLR (Pt.414) 1556 at 1581-
“A certificate of occupancy can only be valid if the root of title originates from the customary owners of the property and that the property was properly acquired through the persons who were holders. There is a duty on the acquiring authority to adhere strictly to the formalities for the compulsory acquisition of property.”
Relying on the case of Ononuju v. A.G. Anambra (supra) at 73, counsel submitted that the fact that the land in dispute in this case is only a small fraction of the land purportedly acquired in Exhibit D6 will not save the unlawful and invalid acquisition, founding on the dictum of Aderemi JSC:
“Where a parcel of land is not properly acquired for public purpose, the acquisition is invalid not withstanding that:
(a)There was a lapse of time between the date of acquisition and the transfer of land to a third party.
(b)The parcel of land was only a small portion of a larger parcel of land so acquired, since the law in matters of acquisition does not concern itself with the smallness or largeness of the land acquired by the government. what is important is that if there has to be a compulsory acquisition of land, it must be done in accordance with the law, that is to say, that the acquisition must be for public purpose of the State. See Lawson vs. Ajibulu (1991) 6 NWLR (pt.195) 44.”
He urged us to resolve the issues in favour of the Appellant and to allow the appeal.
Arguing the Respondent’s Brief, its counsel Sheni Ibitoye Esq. (with him Taiye Oniyide Esq.), on issue 1, urged us to hold that the trial court was right to have rejected the letters dated 29/05/2005 and 06/04/2005 purportedly addressed to the Divisional Police officer, Ganmo and the Ministry of Lands, respectively, by the claimant/Appellant’s solicitor, on the ground that the letters were public documents which required certification.
He said that the Respondent had denied the existence of the letters. Counsel referred us to pages 110 and 111 of the Record of Appeal on how the Appellant sought to tender the copies of the letters and the opposition thereto on the grounds that they were public documents and needed to be certified true copies and same (objection) was upheld by the Court. He relied on Section 109 of the Evidence Act to re-assert Respondent’s position that the letters were public documents and urged us to hold that the Appellant was under a gross misconception of law to argue that the said letters, being filed copies of the Appellant solicitor’s letters to the public officers (D. P.O and the Ministry of Lands), were not public documents, but private documents as per Section 110 of the Evidence Act, especially, as they were not produced at the trial by the officials or under official cover.
Counsel for the Respondent argued that the letters were acts or records of acts of public officers under the executive arm of the Federal and State Government; that assuming (but without conceding) that the two letters were not regarded as coming under the above provision, that they (letters) are covered under subsection (b) of Section 109 of the Evidence Act as Public record kept in Nigeria of a private document.
He therefore urged us to hold that only certified true copies of the letters would be admissible in evidence under Section 111 of the Evidence Act. He relied on the case of Alamieyeseigha vs. FRN. (2006) 16 NWLR (Pt. 1004) 1 at 106, saying that from the moment the Director of Lands and the DPO received the letters, the said letters became part of their official records, and therefore qualified as public records of private documents, under Section 109 (b) of the Evidence Act, and subject to certification. He submitted that it is now trite that only a certified true copy of a public document properly issued by a public officer is admissible in evidence under Section 97 (2) (c) and Section 111 of the Evidence Act.
Thus, the letters dated 06/04/2005 and 29/05/2005 written by the Claimant/Appellant’s solicitors to the Director of Lands in the Ministry of Lands and Housing Ilorin and the Divisional Police Officer (DPO) Ganmo Police Station, being copies of Public documents ought to have been certified before they were tendered in evidence as exhibits; that photocopies of the letters belong to a special class of documents by virtue of the special circumstances surrounding it as dictated by Section 97 of the evidence Act. He relied on the case of Egbue vs Araka (1996) 2 NWLR (Pt. 433) 688 at 702.
On issue 2, counsel for the Respondent submitted that Exhibit P1 showed in the recital that the PW1 was the absolute and beneficial owner of the land which he sold to the Appellant (as pleaded in paragraphs 4 and 6 of the Amended Statement of Claim) but that in paragraphs 11, 12 and 13 of the Amended Statement of claim, the Appellant traced his root of title to the land to the PW1’s family, and under cross examination of the PW1, he said the land belonged to him, personally; that he inherited same from their great grandfather known as Agbetu; that the land belonged to their family and he was the family head and, sold the land in the capacity of family head. (see page 109 of the Record of Appeal).
Counsel submitted that a careful consideration of the pleadings and evidence would reveal that the evidence of PW1 was contrary to paragraph 4 of the Amended Statement of Claim, which reveals the PW1 as the original owner of the land, but in evidence said that his family ancestor Agbetu – as the founder/first settler of the entire area of land known as Ita- Ayisa – was the owner of the land; that evidence was inconsistent with the pleadings of the Appellant. Thus, the evidence of PW1 goes to no issue; that parties are bound by their pleadings and any evidence which is at variance with the averments in the pleadings goes to no issue and should be discarded.
He relied on the case of Emegokwe v. Okadigbo (1973) NSCC vol. 8, 200 at 222; Otamma vs. Youdubagha (2006) 2 NWLR (Pt.964) 337 at 358; Dada vs. Dosunmu (2006) 18 NWLR (Pt.1010) 134 at 158. Counsel urged us to note that the evidence of PW1 that the land was owned by his family was inconsistent with the claim of the Claimant/Appellant that PW1 Alhaji Akanbi Ita-Ayisa, was the original owner of the land; that the testimony of PW1 that the land belonged to the Agbetu family was fatal to his claim. He added that there was nothing from the totality of Exhibit P1 to show that the land ever belonged to any Agbetu family; that PW1’s evidence amounted to an attempt to contradict, alter, vary or add to the content of Exhibit P1, through his oral testimony in Court, or adopted statement on Oath, contrary to section 132 (1) of the Evidence Act; that that cannot be allowed. He relied on the case of UTB (Nig) Ltd vs. Ajagule (2006) 2 NWLR (Pt.965) 447 at 481; E.A. IND. LTD v. NERFUNS (2009)8 NWLR (Pt.1144) 535 at 590; Akinboni vs. Akinboni (2002) 5 NWLR (Pt.761) 564 at 580.
Counsel further argued that the Appellant’s vendor (PW1) had stated in this statement on oath the names of the people who witnessed the sale of the land to Appellant, but that those persons were not called as witnesses in the case that it is the primary duty of the plaintiff in a declaration of title to land, to show the court clearly the area of the land he claims so that the land can be identified with certainty. He relied on the case of Dada vs. Dosunmu (supra) at 176. He argued that the claimant failed to prove the area of the land he claimed; that his claim on 2 1/2 plots was inconsistent with the one plot admitted by PW1 to have been sold to him (Appellant); that he did not plead his vendor’s root of title and the origin of that title by credible evidence. He relied on the case of Dagali of Dere vs. Dagali of Ebwa (2006) 7 NWLR (Pt. 979) 382 at 452 – 453; Section 46 of Evidence Act and the case of Umeojiako v. Exenamuo (1990) 1 NWLR (Pt. 126) 253 at 267.
He listed the burden which the Appellant had to discharge to succeed in a declaration of title to land, as follows.
(a)Prove the area of land claimed with certainty Dada vs. Dosumu (supra) at 76
(b) Plead his vendor’s root of title and establish the origin of that title by credible evidence (Dagali of Dere vs. Dagali of Ebwa (supra) at 452 – 453).
(c) Prove that the claimant or his vendors own(s) the land surrounding the land in dispute and evidence of acts of possession (Section 46 of the Evidence Act).
(d) Prove the fact of founding of the land-Elegushi vs. Oseni (2005) 14 NWLR (pt. 945) 348 at 368.
(e) Prove reliance on the strength of his case Okebulu vs. Abbah (1988) 2 NWLR (Pt.77) 498.
(f) Prove better title than the Defendant – Ugoji vs. Omikogo
(g) Prove such acts of ownership extending over sufficient length of time numerous and positive enough to warrant the inference that he is the exclusive owner OBIASO vs. OKOYE (1989) 5 NWLR (Pt.119).
(h) Prove exclusive possession of the land AMAKOR v. OBIOFUNA (1974) 1 ALL NLR 119.
He said that the above represent the composite nature of the onus of proof required of a claimant in claims for declaration of title to land; that the lower Court was right when it declined to hold for the Appellant on the allegation of admission or default of defence, as the Appellant had the duty to satisfy the Court by evidence adduced, that he was entitled to the declaration. He relied on the case of Taduggorunno v. Gotom (2002) 4 NWLR (Pt.757) 453 at 476.
Counsel urged us to hold that though the standard of proof in land matters is as required in civil cases, that the expectation of the claimant in establishing his claim to title as required by law as well as settled judicial authorities is of its own kind or class; that the requirements for a claimant for declaration of title makes the standard unique or peculiar, that the Land Use Act, 1978 being a legislation is sui generis in the sense that by Section 274 (5) of the 1999 Constitution is a part of the Constitution and like the fundamental rights provisions, can only be amended, in accordance with the special provision prescribed by Section 274 (5) of the Constitution; that the trial judge was therefore justified when he held that the standard of proof was sui generis. He relied on the case of Abioye vs. Yakubu (1991) 5 NWLR (Pt.190) 130 at 230.
On the allegation that the trial Court grossly misapprehended the Appellant’s case when he held that paragraph 4 of the Amended Statement of claim negated paragraphs 6, 11, 12 and 13 of the same Amended statement of claim, counsel for the Respondent submitted the trial court did the right thing and that findings of the Lower Court on the issue was limited to the consideration of the pleadings and evidence of the parties before it; that at no point did the lower Court set up for the parties a case different from the one set up by the parties themselves in their pleadings; that the decision of the lower Court was anchored strictly on the evidence adduced before it.
On issue 3 – whether judging from the totality of the pleadings and evidence before the lower Court, the lower Court wrongly evaluated Section 34 (5) of the Land Use Act 1978 against the Claimant/Appellant –
Counsel in arguing this adopted his submissions under issue 2 above. Counsel added that the Appellant had relied on Section 34 (5) of the Land Use Act 1978 (among others) to justify his alleged claim of title to the disputed land. He rehearsed the case of the Appellant, reproduced the provisions of Section 34 (5) of the Land Use Act, and said that that scenario compelled the lower Court to consider whether or not the land in dispute was at any point in time legally vested in the claimant, hence the court asked:
“Between 1976 to 1982 was the land in dispute legally vested in the claimant? This is because the claimant can only effectively set aside exhibit D5, if his title has not been divested from him as at the time of issuance of exhibit D5.”
Counsel repeated his submission under issue 2 that:
(i) The Claimant/Appellant throughout the course of the trial did not plead or give evidence of acts of ownership extending over sufficient length of time which acts are numerous and positive enough to warrant the inference that he is the true owner;
(ii) The Appellant did not produce any document of title let alone one that is authenticated;
(iii) Neither the claimant nor his witness (the alleged vendor) gave evidence that they own adjacent or connected land;
(iv) The evidence of PW1 Alhaji Akanbi Ita Ayisa, with respect to who the true owner of the land in dispute is between himself and the Agbetu family at large, is in-consistent with the Pleading;
(v) PW1’s admission of selling only one plot to the claimant (PW2) is contrary to the claim of the Claimant/Appellant that he bought 2 1/2 Plots;
(vi) The people namely: Malam Saka Aremu, Mamondu Ajadi and Abudu Baki Ita-Ayisa referred to by PW1 in paragraph 3 of his statement on oath at page 10 of the record as witnesses to the sale and measurement of the land in dispute (Exhibit P1) contained at page 7 of the record were not called as witnesses to this case;
(vii) The Claimant/Appellant did not call any witness to buttress PW1’s assertion that his ancestors founded Ita-Ayisa or that the Emir of Ilorin recognized Sule Agbetu as the founder of Ita-Ayisa etc.
Counsel submitted that it was sequel to the above findings that the lower court concluded that the Appellant failed both in his proof of exclusive lawful possession of the land in dispute and in his root of little through traditional evidence, which was inconclusive; that the lower court found that the Appellant was not protected under section 34 (5) of the Land Use Act, 1978.
He urged us to hold that the trial judge was right, and to disregard the evidence of the PW1 that he sold the land to the Appellant both in his capacity as the owner and as the head of the family of his family- Agbetu that owned the land; that pw1 cannot both be the beneficial owner, as indicated in Exhibit P1, and also sell the same land again, for an on-behalf of a larger family to which he claims to be the head. He urged us to hold that since the recital to Exhibit p1 described Pw1 as the owner of the land, the evidence of PW1 that he sold the land to the Appellant as the owner and in his capacity as the head of Sule Agbetu family contradicted the Exhibit P1.
Counsel further urged us to discountenance Appellant’s argument that Exhibit p1 was pleaded and tendered as receipt not as deed of transfer and so it can only be used as Receipt and no more; he submitted that it is the law that a court is entitled to look at its own record and proceedings on any matter, and take notice of their contents, though they may not be formally brought before the Court by the parties. He relied on the case of ADO VS. MEKARA (2009) 9 NWLR (Pt.1147) A91 at 506; ONWUKA v. OWOLEWA (2001) 7 NWLR (Pt.713) 695 at 714.
Counsel submitted that even if the claim of PW1 that he was the head of Agbetu family, as at 1976 when he sold the land, were unchallenged, the onus was still on him to establish his case as required by law; that he cannot shirk this responsibility or burden, nor rely on the weakness of the Respondent’s case (if at all) to strengthen his. He relied on the case of UMEOJIAKO v. EZENAMOU (1990) 1 NWLR (pt.126) 253 at 267; ELEGUSHI v. OSENI (supra) at 368.
On Issue 4- whether the lower Court rightly analysed exhibits D1, D2, D3 and D6, when it concluded that the land in dispute was lawfully and legally acquired, and whether exhibit D5 was properly issued to Respondent in line with the dictates of the Land Use Act 1978, Counsel answered in the affirmative, saying that the lower court’s decision on the Issue was sequel to a thorough consideration of the pleadings and the evidence of the parties before it on the grant of the certificate of occupancy No. KWS 6678 in favour of the Respondent.
He urged us to note that the certificate of occupancy was granted to Respondent upon his application for a parcel of land to build a garment manufacturing industry; that the parcel of land granted to the Respondent in 1988 forms only a fraction of the area of land covered by the revocation advertised through the public notice of June 15, 1982 (Exhibit D6) called the Ilorin – Ajase Ipo Road Industrial Lay-out; that the Kwara State Government had already concluded the compulsory acquisition of the area known as TPO No. 158A about 6 years earlier to the application of the Respondent for a parcel of land.
He urged us to invoke the provisions section 28(7) of the Land Use Act and hold that the revocation of a Right of Occupancy done for public purpose extinguishes the title of the existing holder of Right of Occupancy. To this situation, counsel submitted, that Appellant’s alleged title, together with all other holders Right of Occupancy in the whole area covered by the Industrial Layout, was extinguished in 1982. Counsel submitted further that as at June 1982, when the public notice (Exhibit D6) was issued and all interests over the land on TPO No.158 were revoked, the land was already declared urban by Kwara state Government, an action protected by Section 28 (2) of the Land Use Act, 1978.
He urged us to resolve all the issues against the Appellant and to dismiss the Appeal.
I think the main and real live issue in this appeal has to do with the Right of occupancy (or deemed right of occupancy) of the Appellant over the land in dispute, whether the same had been lawfully or validly revoked or divested by the issuance of Exhibit D5 by the Governor of Kwara State in favour of the Respondent in 1988. That appears to be the sum total of the inquisitions or queries raised in issues 2 to 4 by the Appellant, which the Respondent adopted with slight modifications.
In the light of the pleadings and evidence, was the trial court right in holding that the standard of proof in land matter is sui generis, and an exception to the two principles of law on effects of admission by pleadings and unchallenged evidence and that paragraph 4 of Appellant’s Amended statement of claim negated paragraphs 6, 11, 12 and 13 of the same Amended statement of claim, thus, the Respondent’s case could not support appellants case?
Did the trial Court conclude rightly that Section 34(5) of the Land Use Act is inapplicable to the Appellant in this case by reason of the alleged contradiction in the pleadings and evidence of the Appellant highlighted, particularly in evidence of PW1, vis-a-vis, Exhibit P1, with respect to the Appellant’s root of title?
And was the lower Court right in holding that Exhibit D5 (Certificate of Occupancy) was properly or lawfully issued to the Respondent over the land in dispute in the circumstances of this case, especially having regards, to the Exhibits D1, D2, D3 and D6?
I shall therefore take the last three issues (2 to 4) together all in the con of the legality or lawfulness of the Exhibit D5 (Certificate of Occupancy) on the land in dispute, vis-a-vis the interest of the Appellant.
But first, the Issue 1 – whether the trial Court was right in rejecting the Appellant’s letters of 6/4/2005 and 29/5/2005 on the ground that they were public documents and required certification.
Appellant had pleaded the two letters dated 6/4/2005 and 29/5/2005 written by his counsel, on his instruction, to Director of Lands, Ministry of Land and Housing and to the Divisional Police Officer (DPO) Ganmo Police Station, respectively. See paragraphs 15 and 17 of the Amended Statement of Claim – page 59 of the Record, where he pleaded thus:
“15 – The Claimant states that sequel to paragraph 14 above, the claimant through his solicitors, wrote to the Ministry of Lands requesting for its intervention. The Claimant pleads the claimant’s solicitor’s letter of 6th April, 2005.
(17) The claimant states that before the commencement of development on the land in dispute on 30/05/2005 he had, through his solicitor’s letter of 29/05/2005, informed the Divisional Police Officer of Ganmo Police Station of the Claimant’s intention to commence the development. The Claimant pleads the letter.”
The Respondent’s reply to that averment was partial denial, which amounts to in-effective denial in law. The Respondent had said in paragraphs 2, 19, 20 and 21 of the Amended Statement of defence as follows:
“(2) The Defendant denies paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the statement of claim and puts the claimant to the strictest proof thereof.
(19) In reply to paragraph 17 of the statement of claim, the Defendant avers that upon sighting the Certificate of Occupancy No. KW6698, issued to the Defendant by the Military Governor of Kwara State. The Divisional Police Officer (DPO) warned the Claimant against further trespass on the land.
(20) The Defendant denies that the Claimant wrote any letter dated 29/5/2005 to the Divisional Police Officer, Ganmo Police Station…
(21) The Defendant denies that the claimant wrote any letter dated 6/4/2005 to the Ministry of Lands in respect of the land in dispute.” (See pages 69 – 70 of the Records).
Of course, the respondent was not really in a position to deny or admit the said paragraphs 15 and 17 of the Amended statement of claim of the Appellant, since it was not the person the letters were addressed. The Appellant had a duty to prove that the said letters were sent to the officials allegedly addressed. But while giving evidence the Appellant, who did not even plead that the said letters were delivered to the addresses, only sought to tender the copies of the letters written to the Director of Lands on 6/4/05 and to the police on 29/5/05, as, obviously, the originals of the letters could not have been with him (and it appears he was not angling for them, having not sought the officials addressed to come to tender the letters). Appellant’s evidence on page 110 of the Record (lines 35 – 37) went as follows:
“When I met the defendant on my Land, I instructed my lawyer to write the Lands Department which he did. I have a copy of the letter written to the Ministry of Lands.”
“I said that my lawyer wrote to the Division (sic) Police Officer, Ganmo. A copy of the said letter is with my lawyer.”
Those were the documents (copies) which the Appellant’s counsel applied to tender as exhibits but the Respondent’s counsel objected on the grounds that the letters, under the Evidence Act, belonged to the class of documents referred to as public documents under section 109 (b) of the Evidence Act; that under section 97 (1)(e) and 97 (2)(c) of the Evidence Act must be certified true copies. (see page 111 of the Record).
Appellant’s counsel has argued that what they sought to tender were not public documents, but filed copies of private letters written by the Appellant’s counsel to the officials; that they were not public documents, but private documents under section 110 of the Evidence Act.
The Respondent’s counsel urged us to see the said letters as public records of private documents, under Section 109 (b) of the Evidence Act, as the trial judge did
With due respect to the learned trial judge, I think he was in error, in the circumstances of this case, when he held:
“The 2 photocopy (sic) of the letters in this case are public documents under Section 109 (b) EA. This being so, the requirement of Certification is a must under Section 97 (2) (c) EA and in accordance with the prescription under Section 111 Evidence Act.”
That would only have been so, if what the Appellant produced were, or were claimed to be from the custody of the Land’s Department and Divisional Police Officer, respectively, as such copies would have qualified as “public records kept in Nigeria of private documents.”, under Section 109 (b) of the Evidence Act, requiring certification. The Appellant had every right to tender his filed copy of the letter he caused to be written to the public officers, for whatever it was worth. After all, the letters were not really the issue in the case, and the Appellant did not even pretend to have produced the official copy his lawyer, allegedly, sent to the officials!
I do not think the requirement for certification of a secondary document, that emanates from official covers, under Sections 109, 97 (2) (c) and 111 of the Evidence Act, can be stretched, under any imagination, to cover a filed copy of a private document/report and produced by a plaintiff, who alleges that the original copy of the letter was sent out to a public office/institution, where there is no dispute or controversy that the letter was, in fact, written by the plaintiff or by his solicitor.
In the case of University of Ilorin v. Oluwadare (2009) ALL FWLR (pt.441) 839 at 869, it was even held that a notice of appeal produced by appellant and attached to an interlocutory application for stay of execution pending appeal is not a public document as such but a private document prepared and filed to show that Appellant is ready to appeal against the judgment of the lower court. It was produced not from the custody of the court so as to call for certification, but from the appellants to inform the coming of their intention to prosecute an appeal.”
Only recently, in the case of Ilorin East Local Government v. Alhaji Woli Alesinrin CA/IL/38/2011 (an unreported decision of this court) delivered on 20/2/2011, we had cause to explain when a secondary evidence or photocopy may not require certification to be countenanced as a public document, one situation being where the same is exhibited to an affidavit in an affidavit evidence and where the document was not procured from official covers/custody. See also the case of British American Tobacco Company v. International Tobacco Company PLC: In Re Lehabanera Ltd (an unreported decision on this court) in CA/IL/29/2011, delivered on 8/3/2012, page 28 thereof.
I therefore hold that the learned trial judge was wrong in rejecting the said copies of the letters of the Appellant’s counsel dated 6/4/2005 and 29/5/2005, the original which were addressed to the Ministry of Lands and Housing and to the Divisional Police officer, respectively, on the grounds that the same required certification under Sections 97 (2), 109 (b) and 111 of the Evidence Act.
Issue one is accordingly resolved in favour of the Appellant.
Much energy was dissipated on the issue, whether (or not) the standard of proof in land matters is sui generis, having regard to the effect of admission by the defendant of either the pleadings or unchallenged evidence of the plaintiff. The arguments of counsel on both sides on the issue appear to border more on academic theorization of the subject.
The legal phrase, sui generis is a latin language, meaning “of its own kind or class,’ unique or peculiar” See the Black’s Law Dictionary, 8th Edition by Bryan A Garner, page 1475. Thus, in simplestic terms, it can be said that proof of claims in land matters is of its own class, with regards to proof of title, vis-a-vis, the provisions of the Land Use Act 1978, as a legislation. That much was acknowledged by the Supreme Court in the case of Abioye vs. Yakubu (1991) 5 NWLR (PT. 190) 130 at 230 – 231, where it was held:
“It is relevant to point out that the Land Use Act is legislation, sui generis, in that it is a part of our Constitution 1979 – See Section 274 (5). Beside being entrenched, like the fundamental rights provisions, it can only be amended in accordance with the special provision (and) the rules relating to the construction of ordinary statutes may not be appropriate. The Constitution is a Statute sui generis, which requires special attention. So is the Land Use Act. However, in construing the 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. This is because where the words of a statute accurately express the intention of the law maker, effect must be given to them. The intention of the Act, as clearly stated, includes 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 rights 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.”
Also, in the case of Adewuyi vs Odukwe (2005) 7 SC (Pt.11) 1 at 13 – 14, the Supreme Court again spelt out the burden of proof in Land matters, which, short of using the term sui generis, clearly shows that the burden or standard of proof is, in fact, of its own class, when it said:
“We are not unmindful of the fact that it is a well established principle of law that in a claim for declaration of title, the onus is always on the plaintiff to establish his claim, and that it is not open to him to rely on the weakness of the defendant’s case. This court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is whether the plaintiff has been able to prove to the satisfaction of the court that he has better title than the defendant. The standard of proof in a claim for declaration of title is not different from that which is required in civil cases, generally. The only difference rests on the fact that the burden of proof is on the plaintiff who is claiming title, and that it never shifts to the defendant throughout the trial. The difference, therefore, lies not in the standard of proof, but on the burden of proof.” (Reliance was made to the cases of Kaiyola vs Egunla (1974) 12 SC (Reprint) 49 at 61; Akpanawo vs Cookey Gam 2 NLR 100).
See also the case of Network Security Ltd. Vs. Dahiru (2008) ALL FWLR (Pt.419) 475 at 498:
“In an action for declaration of title to land, trespass and injunction, the burden or onus of proof is always on the plaintiff who must rely on the strength of his own case and not on the weakness of the defendant’s case to show that he is entitled to the reliefs he claims. The exception is that where a defendant based his case on facts which support the plaintiff’s case, the latter can use the facts which support his case to establish his own case. Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414; Sanusi vs. Ameyogun (1992) 4 NWLR (Pt.237) 527; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339; Osho vs. Ape (1998) 8 NWLR (Pt. 562) 492”
In the case of Dada v. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 at 176, the Supreme Court also held:
“It is settled law, which has acquired notoriety, that in a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength, of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.”
All that I have stated above are to show that proof of title, trespass or injunction to land has it own peculiar way of being established, especially as the plaintiff is not permitted to fall back on the doctrine of minimal of proof which accompanies admissions by the defendant, as obtained in other civil claims. In the case of Bab Falare Ngubdo vs. Goni Buba Anna (an unreported decision of this Court in CA/J/275/2008, delivered on 7/6/2011 this Court had this to say on pages 28 and 29 thereof, relying on the Supreme Court case of Anyaru vs. Mandilas (2007) 10 NWLR (Pt. 1043) 462 at 477:
“As a matter of law in civil/proceedings, the plaintiff must succeed on the strength of his case and does not have to wait to rely on, or take advantage of the weakness of the case of his opponent. This is more so, in Land matters and declaratory reliefs… “The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Appellant in the present case is trite. A claim for a relief of declaration, whether of title to land or not, is not established by an admission by the defendant, because the plaintiff must satisfy the Court by cogent and credible evidence called by himself to prove that, as a claimant, he is entitled to the declaratory relief. It is the law that the court does not grant declaration on admission of parties, because the Court must be satisfied that the plaintiff, on his own evidence, is entitled to the relief claimed.”
Thus, I do not think the learned trial judge was wrong, when he held that the standard of proof in land matters is sui generis and an exception to the two principles of law on effects of admission by pleadings and unchallenged evidence.
But whether the trial judge was right in saying that, because paragraph 4 of the Appellant’s Amended Statement of claim negated paragraphs 6, 11, 12 and 13 of the same Amended Statement of claim, the defendant’s case could not support that of the appellant, is another issue, entirely.
Was the learned trial judge right when he held that paragraph 4 of the Appellant’s Amended Statement of Claim negated paragraphs 6, 11, 12 and 13 of the same document and that the evidence of PW1 (the Appellant’s vendor) ‘contradicted the Exhibit P1 (Receipt evidencing payment for the land) having regard to the recital clause of the Exhibit P1? paragraphs 4, 6, 11, 12 and 13 of the Amended Statement of Claims averred as follows:
“(4) The Claimant became the owner of the aforesaid parcel or piece of land by purchase in 1976 for money consideration under native laws and customs of Ilorin from Alhaji Aleanbi Ita-Ayisat, the original owner.
(6) The original owner issued the Claimant with receipt for the sale of the land in dispute to him. The claimant pleads as receipt the land agreement.
(11) The family of the Claimant’s vendor had been the owners of all lands known as Ita-Ayisat (Agbetu) from time immemorial, following the founding of the place by one Sule Agbetu during the reign of Emir Suleiman, the 5th Emir of Ilorin who recognized Sule Agbetu as the owner.
(12) The Claimant states that since the founding Ayisat by Sule Agbetu, Ita-Ayisat (Agbetu land) had remained in unbroken possession and control of the descendants of Sule Agbetu who was succeeded by Oloko-Oba and who, in return, was succeeded by Alhaji Sule Akanbi, who sold the land in dispute to the Claimant in 1976.
(13) The claimant states that Ita-Ayisat changed from Agbetu to Ita-Ayisat as a result of the popularity of Sule Agbetu’s wife, called Ayisat who was a popular pap seller at Agbetu, whose shed served as meeting point for travelers and traders, particularly traders form Ilorin patronizing Amayo market.”
The word ‘negate’, by ordinary dictionary meaning, means ‘to deny’, “nullify”; “imply non-existence of.” see chambers Twentieth century Dictionary by AM Macdonal OBE BA (Oxon) New Edition, page 882.
Thus, to say that paragraph 4 of the Amended Statement of Claim negates paragraphs 6, 11,12 and 13 of the same Amended Statement of Claim would imply that the former denies or nullifies the latter, or that the former implies non-existence of the latter. I have, studiously, read and analysed the two sets of pleadings and I am unable to see how paragraph 4 of the Amended statement of Claim negates or can be inferred to deny or nullify the Paragraphs 6, 11, 12 and 13 of the same document. If anything, I rather see one the complementing the other.
Whereas, paragraph 4 says that the Claimant became the owner of the land by right of Purchase, under native laws and customs of Ilorin from Alhaji Akanbi Ita-Ayisat, the original owner, and Paragraph 6 Pleads the purchase receipt thereof, made in form of agreement, paragraphs 11, 12 and 13 explains how the original owner came by the land; that the original owner’s family, tracing to Sule Agbetu, had been the original owners of the land, from the immemorial, following the founding of the place, Ita-Ayisat (or Agbetu land), by the said Sule Agbetu, who was succeeded by Oloko-Oba and so on, until the turn of Alhaji Sule Akanbi, who sold the land to the claimant.
Those facts were converted to evidence in the statement on oaths by the PW2. See paragraphs 2, 3, 4, 7 and 8 of the PW1’s statement on oath (pages 10-14 of the record of Appeal). And the said statement on oath was adopted at the hearing, when the PW1 further explained his right and authority to sell the land to the claimant, as follows:
“…The land belongs (sic) to me personally. I inherited same from our great grandfather know (sic) Agbetu. The belong (sic) to our family and we are all of the same father … My family has a vast land along Afon Road, I sold one plot out of the vast land and I, sold to Arosanyi near the Claimant’s own. I became the head of the family during the reign of the 8th Emir Oba Abdulkadir. The Agbetu family is not in the agreement. It 5(sic) the name of the person that sold the land that is in the agreement. The land in dispute now which the claimant is claiming is the exact land I sold to the claimant.”
Nothing could be clearer and consistent than that on the origin of the land and how the PW1 came to become the beneficial owner, with power to sell the land to the claimant. It is also clear that, his family owned a vast expanse of land in the area and he sold the exact size of the land in contention to the Claimant, which he called one plot (perhaps, as opposed to separate plots). It was also clear that though the land belonged to his family, he had inherited the same and he was the head of the family.
There was therefore no conflict between the PW1 as a person and owner of the land, and the PW1 as head of the Agbetu family, that owned the land, originally. I cannot also see any conflict or contradiction in the oral testimony of the PW1 and the pleading, or with the Exhibit P1, for the land. Tendered as Receipt to evident payment for the land.
I think the alleged conflict only existed in the imagination of the learned trial judge, who raised the allegation of conflict, suo moto, in his judgment and resorted to the reading of unintended meaning into the Exhibit p1 (tendered only as Receipt for payment for the land), to find reason to justify his imaginary contradictions in the case of the plaintiff and rubbish his claim!
It was therefore wrong for the learned trial judge to introduce the concept of Recital into Exhibit p1, which was a mere receipt before the court. Recital, as a concept, is usually tenable in a legal Deed of transfer on conveyance (which must be a registrable instrument’ duly registered and admitted as such in Court) to be accorded such recognition. The Black’s Law Dictionary (supra) presents recital as: “A preliminary statement in a contract or deed explaining the reasons for entering into it, or the background of the transaction, or showing the existence of particular facts.”
Even if the said recital were to be considered, being part of the Receipt for payment for the land, it is difficult to spot any material contradiction or conflict with the evidence of Pw1 (as the Transferor in Exhibit P1), when the recital is read jointly with his evidence in court that the land belonged to him, personally, having inherited same from his great grandfather! And where there is no contrary evidence to challenge the claims of the PW1 (which was supported by the PW2 and Exhibit P1), there can hardly be any credible reason to doubt or fault his assertion and consistent claims.
As rightly stated by learned counsel for the Appellant, relying on the case of Adenuga v. Okelola (2008) ALL FWLR (Pt.398) 292 at 395:
“A Court’s decision must be anchored on the evidence adduced before it and on reason. On no account should it be based on the intuition of the judge or conjecture or what the judge conceives to be fair conclusion…”
And by the case of Shasi v. Smith (2009) 12 MJSC (Pt.11) 150 at 164 – 165, it was held:
“The duty of the Court is to consider the case before it in the light of the parties’ complaints. It has no business setting up for the parties a case different from the one set up by the parties in their pleadings. To do so will result in the denial to one or the other of the parties of his right to fair hearing.”
The point must also be made, as per the case of International Finance Corp vs. DSDW (supra) that in the determination of dispute between Parties in Court, the decision must be confined to the issues properly raised by the parties. It is not competent for a Court suo moto to make a case for either or both of the parties and then proceed to give judgment on the case so formulated, contrary to the case of the parties before it. When an issue is not property placed before the court, the court has no business whatsoever to deal with it…”
I hold that the learned trial judge was therefore wrong to have read extraneous meaning into Exhibit P1 and to infer conflicts between the averments in paragraph 4 of the Amended statement of claim and paragraphs 6, 11,12 and 13 of the same Amended Statement of Claim, and between the evidence of the pw1 and Exhibit P1, when no such conflict(s) or contradiction(s) existed to affect the Appellant’s trace of root of title.
The learned trial Court’s erroneous conclusions on the Appellant’s ability to trace his root of title, made it to also hold wrongly, that section 34 (5) of the Land Use Act, 1978, was not applicable to the appellant. At a point, it appeared the lower court was considering the Pw1 (Appellant’s vendor) as the claimant in the case, not the Appellant, who called the PW1 (as his vendor) to confirm the Appellant’s claim of how he came by the land in 1976. Both the evidence of PW1 and Exhibit P1 (as Receipt of purchase) attested for the Appellant, that prior to the issue of Exhibit D5 (Certificate of Occupancy) to the Respondent, on 27/9/1988, the Appellant had been in possession of the land and so, by law, was the occupier and holder of the land, prior to the coming into effect of the Land Use Act on 29/3/1978. The evidence of the Appellant, on this, remained unchallenged.
By Section 34 (5) of the Land Use Act, 1978:
“Where on the commencement of this Act the Land is undeveloped, then –
(a) One plot or portion of the land not exceeding half of one hectare in area shall subject to subsection (6) of this section, continue to be held by the person in whom the land was so vested as if the holder of the land was the holder of a statutory right of occupancy granted by the Governor in respect of the plot or portion as aforesaid under this Act; and
(b)All the rights formally vested in the holder in respect of the excess of the land shall on the commencement of this Act be extinguished and the excess of the land shall be taken over by the Governor and administered as provided in this Act.”
The claim of the Appellant before the lower Court was clear and simple, namely: (page 60 of the Record).
“(1) A declaration that the claimant is the deemed holder and entitled to statutory Right of Occupancy over the parcel or piece of land measuring 100ft by 125ft (2% plots) situate at Ita-Ayisat at the right-hand side of the Ilorin Ajase Ipo road, Ilorin West Local Government Area of Kwara State, within the Urban Area of Ilorin.
(2) A declaration that the plaintiff has equitable and customary interest and title in the land measuring 100ft by 125ft (30.0m by 37.5m) situate at Ita-Ayisat on the right hand side of the Ilorin Ajase Ipo Road, Ilorin West Local Government Area of Kwara State.
(3) A declaration that the issuance of Certificate of Occupancy No. KW.6678 to the defendant in so far as it covers the areas in the procession of the claimant is wrongful, illegal and unconstitutional and in breach of the fundamental rights of the claimant entrenched in the Constitution of the Federal Republic of Nigeria and the Land Use Act, 1978.
(4) An Order of the Court setting aside or directing the immediate cancellation of the Certificate of Occupancy No KW 5678 issued in favour of the defendant.
(5) Perpetual injunction restraining the defendant, its servants, agents and or privies and any person(s) claiming through or under it, from developing, building or selling, disposing, alienating or in any manner dealing with and or trespassing or further trespassing to the said parcel or piece of land in dispute.
(6) N5, 000.00 damages for trespass. ”
seen from the above Reliefs, the case of the Appellant was primarily against the Certificate of Occupancy (Exhibit D5) issued to the Respondent on the very land he claimed equitable and customary interest and title on, and for the said certificate of occupancy to be set aside, cancelled and nullified and for perpetual injunction against the Respondent, servants, agents etc. from further disturbing his peaceable enjoyment of the land.
I think what the Appellant needed to prove to succeed was that he was the lawful customary holder and occupier of the land prior to the coming into effect of the Land Use Act, 1978 and (2) that his right/interest in the land had not been validly revoked as required by law.
I have already held that the evidence led by the Appellant was satisfactory, on the 1st point, that he was the lawful customary holder/occupier of the land prior to the coming into effect of the Land Use Act on 29/3/1978. His evidence and that of the PW1, as well as the Exhibit P1, have established that limb of his claim, and are in keeping with one of the 5 known methods of proving title to land, namely:
(1) by traditional evidence;
(2) by production of documents of title duly authenticated and executed;
“(3) by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership;
(4) by acts of long possession and enjoyment and
(5) proof of possession of connected or adjacent lands in circumstances rendering it probable that the owner of such connected and adjacent lands would be the true owner of the land in dispute. see the case of Oyadare vs. Keji (2005) ALL FWLR (Pt.247)1583 at 1596; Idundun v. Okumagba (1976) 10 SC 227; Atufe vs. Oghomie nor (2004) 13 NWLR (Pt.890) 327 at 328; Ogbukwelu v. Umeana Funkwa (1994) 5 SCNJ 24.
In this case, the Appellant has relied on the right of purchase as per Exhibit P1, to prove his title as well as traditional evidence of his vendor PW1) who told the court that he inherited the land he sold to Appellant from his family, tracing to the founder/original owner – Sule Agbetu. Neither the identity of the land, nor the root of title was in dispute, as the Respondent had no answer to it and could not have challenged it. In such circumstances, the law only required the person who could prove a better title to succeed. See the case of Abdullahi Ali vs. Chief Goddy O. Ugwu (an unreported decision of this Court in CA/J/224/2009, delivered on 24/3/2011, pages 29-30 thereof; Okelola vs. Adeleke (2004) 13 NWLR (Pt. 890) 307, held 7.
Having established that he was the lawful customary holder/occupier of the land as at the coming into effect of the Land Use Act, 1978, the Respondent, who parades the certificate of occupancy over the same land, therefore, has a duty to establish that the document was duly and validly issued to him, to defeat the Appellant’s claim over the land. In the case of Kaigama vs. Namnai (1997) 3 NWLR (pt. 495) 549 this court per Edozie JCA (as he then was) held as follows:
“A certificate of occupancy is prima facie evidence of title but it will give way to a better title. Furthermore, for certificate of occupancy to be valid, there must not be in existence, at the time it was issued, a customary owner who has not been divested of his title.” see also Oluhunde vs. Adeyoju (2000) 78 LRCN 2297 and Kyari v. Atkali (2001) NWLR (pt.724) 412, where it was held that “A certificate of occupancy predicated on a defective title is a nullity, ineffective and void abinitio.”
In the case of Young Farmers Association Mallam Abba and Garin Housa in Gassol Local Government Area v. Baba Liya & Anor (an unreported decision of this court in CA/J/6/2008, delivered on 23/6/2011 pages 40 – 41 thereof, we held that:
“The duty is on the party relying on a certificate of occupancy to establish prior existing interest in the land in his favour or format and due revocation of the existing rights for overriding public interest, before the issue of the right of occupancy to him.”
In the case of Kaigama vs. Namnai (supra) held 9 and 12 this court held as follows:
“(9) It is trite law that mere production of deed of grant is not equivalent to proof of title when the origin of the title of the grantor was neither admitted nor established. In the instant case, as the respondent relied on certificate of occupancy, it was his duty to establish that he had a prior interest on the land before the grant of the certificate of occupancy (Mogaji vs. Cadbuny (Nig.) Ltd (1985) 2 NWLR (pt.7) 393; Ogunleye vs. Oni (1990) 2 NWLR (pt. 135) 745.
(12) An acquiring authority cannot rob Peter to pay Paul, by divesting one citizen of his interest in property and vesting same in another. In the instant case, even if the Jalingo Local Government had acquired the land in dispute, it was not shown that same was acquired and for public purpose. As such the Local Government could not pass anything to the Respondent through certificate of occupancy on the principle of Nemo dat quod non habet. The certificate of occupancy was therefore null and void. The Respondents’ case based on the certificate of occupancy was not sustainable…”
The position of the Respondent in the case above Kaigama vs. Namnai (supra) was not different from that of the Respondent in this case, whose only instrument of right/power to the land in dispute was the certificate of occupancy (Exhibit D5), issued to it by the Military Governor of Kwara State on 27/9/88, following its application to the state Governor for issuance of land for industrial purposes. See paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Amended statement of Defence of the Respondent (pages 69 – 70 of the Record)
There is no evidence that the Government had divested the Appellant of his customary right/title over the land in question before the grant of same to the Respondent in Exhibit D5.
Section 28 of the Land Use Act provides for how a certificate or right of occupancy can be revoked and by who: Section 28 (1) says:
“It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.” Subsection 2 of that section gives the meaning of the term “overriding public interest” for which a right of occupancy may be revoked. Sub-section 5 stipulates the grounds on which a right of occupancy may be revoked, while sub-sections 6 and 7 state as follows:
“(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.
(6)The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection 6 of this section or on such later date as may be stated in the notice.”
The Respondent had relied on Exhibit D6 (certified true copy of Public Notice contained in the Nigerian Heralds of Tuesday 15/06/1981), Exhibit D1 (letter by Ministry of Lands, dated 31/07/1985, informing the Respondents that he had been granted statutory right of occupancy in respect of Plot 44 Brock 16 on TPO 158A for commercial purpose), Exhibit D2 (Another letter of allocation by Government’s M/D) and Exhibit D3 (a letter from the Government addressed to the respondent, conveying “Approval for the grant of a Right of Occupancy in respect of Plots Nos. 4 and 4A Block 16 on TPO 158a”), to justify the said Exhibit D5 (certificate of occupancy), issued to it by the Government.
But none of those documents (Exhibits D1, D2, D3, D4 and D6) explained how/why the Government seized the Appellant’s land to give it to the Respondent, nor the requirement of due notice to the Appellant as the holder/occupier of the land before the seizure. Exhibit D6, said to have been a public notice, published in the newspaper in 1982, would not satisfy the requirement of Section 28 (6) (7) of the Land Use Act, 1978, which requires the notice of revocation to be, personally, served on the land holder, before “The title of the holder of the right of occupancy shall be extinguished.”
See the case of Alhaji Mogaji Abudu Lateju vs. Dr. Olufabayo (an unreported decision of this Court) CA/IL/29/2009, delivered on 17/11/2011, where we held on pages 17 – 18 thus:
“It is legally impossible for the above letter to pass for a revocation of the Respondents Statutory right of occupancy under Section 28 (6) (7) of the Land Use Act, even if the Respondent’s land is adjudged to be part of the land purportedly released … by Exhibit D2. Apart from the absence of evidence that the alleged released the land (Exhibit D2) was done “signified under the hand of a public officer duly authorized in the behalf by the Governor;” evidence shows that no notice of sale was given to the holder of the land (Respondent) …. It is even absurd for the Appellant to place such reliance and Exhibit D2 and claim same to have been evidence of revocation of the respondents right of occupancy, Exhibit P1 on the land…”
In the case cited above, the Respondent was the holder of the certificate of occupancy (Exhibit P1) but the Land’s department as agents of Government wrote a letter (Exhibit D2) to Appellant informing them that the land (the subject matter of Exhibit P1) had been released to them (Appellant’s family). The Appellant thereupon took steps to recover the land from the Respondent. This was disallowed by law.
Exhibit D6 in this appeal can be likened to Exhibit D2 in the case above. Exhibit D6 was said to be public Notice of acquisition of lands by Government for development of industrial Layout. The Notice was published in the newspaper and addressed to no one in particular and it affected a large expanse of land “stretching west wards for, about 1.2km then south wards for about 1.5km and then eastwards for about 1.5km to join new Afon road and following new Afon road to Ajase Ipo/Ilorin Road and then along the road north wards to the starting point.”
Certainly, that cannot be a valid notice to revoke the rights of the Appellant over his land shown on Exhibit P2, which was only 100ft by 125ft. there is nothing in the Exhibit D6 to relate to the Appellant, and the same was not addressed to him or copied to him.
It can also be seen from the heading of the EXHIBIT D6: “PUBLIC NOTICE REVOCATION OF RIGHTS OF OCCUPANCY AND INTENTION TO TAKE IMMEDIATE POSSESSION”, that it only carried an intention of government to take immediate possession of the lands advertised. That, without more, cannot amount to the revocation of the rights of the Appellant over his land, even if he were duly served with the notice.
I therefore hold that the learned trial judge was in grave error when he held that the Exhibit D5 (Certificate of Occupancy) was lawfully and legally issued to the Respondent, in the circumstances of this case.
The Appellant was not under any more duty than asserting and proving his existing customary rights in the disputed land at the time the Respondent purportedly obtained Exhibit D2 (Certificate of Occupancy) in which Appellant’s land was part.
In the case of Kaigama v. Namnai (supra) held 15, this Court said that
“There is a presumption that the person having title to land is in possession. It therefore goes without saying that the Appellants family in the instant case was in possession and thus, a holder or occupier of the land by virtue of section 36 of the Land use Act 1978.” See also the case of Young Farmers Association v. Baba Liya (supra) page 42.
I therefore resolve issues 2, 3 and 4 in favour of the Appellant too and hold that this Appeal succeeds and should be allowed. It is accordingly allowed, as I set aside the judgment/decision of the learned trial judge, Helima Saleeman J; in suit No.KWS/223/2005, and in its place grant the reliefs sought by the Appellant at the lower court, pursuant to section 15 of the Court of Appeal Act and order 4 Rules 3 and 4 of the Court of Appeal Rules.
Accordingly, it is hereby declared. That the Appellant (as claimant at the Court below):
(1) Is the deemed holder and entitled to statutory Right of occupancy over the parcel or piece of land measuring 100ft by 125ft situate at Ita-Ayisat on the right hand side of Ilorin Ajase Ipo road, Ilorin west Local Government Area of Kwara state within the urban area
(2) Has equitable and customary interest in the said land and is entitled to the same.
(3) It is hereby declared that the certificate of occupancy No. KW6678(Exhibit D5) issued to the Respondent, in so far as it covers the areas (of land) in possession of the Appellant (as per the Appellant’s site Plan dated 17/4/1977 (Exhibit P2) and to that extent, is wrongful, illegal and therefore null and void, and is according, to that extent, cancelled and set aside.
(4) The Respondent is hereby restrained by itself, servants or agents or privies from any or further acts(s) of trespass on the said land by way of building on, developing, selling, disposing, alienating or in any manner dealing with the said land of the Appellant.
(5) The Respondent shall pay N5,000.00 (Five Thousand Naira) damage to the Appellant as well as the cost of this appeal assessed at Thirty Thousand Naira (N30,000.00) only.
IGNATIUE IGWE AGUBE, J.C.A.: I was privileged to read in advance the very erudite and expository Judgment of my learned brother, Mbaba, JCA and I cannot but agree more with my Lord that the Appellant (then Claimant in the lower Court) had done all that the law required him to do in order to be granted the reliefs sought in the lower Court.
The Appellant was able to trace his root of title to the original owner in this instance one Alhaji Akanbi Ita-Ayisat and to his family from time immemorial. He even called the PW1 who confirmed the root of his (Appellant’s) title by way of sale which evidence was neither discredited nor challenged and the lower court was bound to act on that evidence to give Judgment for the Appellant. See Akinduro v. Alaya (2007) ALL FWLR (pt.381) 1653; AFRI-BANK NIG. LTD. (2008) ALL FWLR (PT.421) 877 AND MANTEE WATER TRANSPORT NIG. LTD. V. PETROLEUM (SPECIAL) TRUST FUND (2008) ALL FWLR (PT.439) 499.
He had also pleaded and proved title by tendering the purchase Receipt Exhibit P1 and shown that he had been in possession of the piece or parcel of land undisturbed for many years before the Respondent was issued with a spurious certificate of occupancy without divesting the Appellant of his deemed customary right.
I agree with the learned counsel for the Appellant that in the absence of evidence that the Appellant’s right to the land was revoked and compensation paid in the overriding public interest, Exhibits D1 and D5 are nullified and the Respondent became a trespasser since he failed to investigate whether the land purportedly granted to him was encumbered or not. see Carrena & Anor. v. Akinilase & 11 Ors. (2008) ALL FWLR (pt.444) 1403 at 1422; Aromire v. Awoyemi (1972) 1 ALL NLR (Pt.10) 101; Ayinla v. Sijuwola (1984) 1 SCNJ 410 and Ekeretsu v. Oyobebere (1992) 9 NWLR (pt.266) 438.
On the whole, I am of the candid view that the Appellant discharged the burden cast on him to prove his case on the balance of probabilities and preponderance of evidence as required in civil matters. See Sections 131-133(2) and Section 134 of the Evidence, Act, 2011 and the cases of UTB (Nig.) Ltd. v. Ajagule (2006) 2 NWLR (pt.965) 447 at 481; E.A. Ind. Ltd. v. NERFUND (2009) 8 NWLR (pt.1144) 535 at 590 and Akiniboni v. Akiniboni (2002) 5 NWLR (pt. 761) 564 at 580.
It is for the above and the fuller reasons advanced by my learned brother in allowing the. Appellant’s appeal that I also allow same and grant all the prayers of the Appellant as sought in the lower Court and herein on Appeal.
The Judgment of the lower Court delivered by Halimat Saleema, J., of the Kwara state High court in suit No. KWS/2 23/2005 is hereby set aside and. I abide by all consequential orders including costs.
OBANDE OGBUINYA, J.C.A.: I have had the privilege of reading, in draft, the lucid leading judgment delivered by my learned brother, Ita George Mbaba, JCA, and I, wholly, endorse his reasons and conclusions therein.
There is no gainsaying the fact that a certificate of occupancy, such as the one bequeathed to the respondent by the Kwara State Government, exhibit D5, is not an irrefutable proof of title over land for all purposes. In other words, it is prone or susceptible to nullification or invalidation when it is granted to a party in questionable circumstances as in this case. Exhibit D5, the certificate of occupancy, could not have conferred any toga of title in the disputed land to the respondent in the face of the subsisting and extant deemed rights of the appellant donated to him by the sacred provision of the section 34 of the Land Use Act, cap. L5, Laws of the Federation of Nigeria, 2004. Having been issued to the respondent in utter disregard of the appellant’s deemed right of occupancy, it, the certificated of occupancy, exhibit 5, passes, at best, phantom interest to it, the respondent, over the disputed land.
In the case of Adole vs. Gwar (2008) 11 NWLR (Pt. 1099) 562 at 590, Onu, JSC, affirmed that:
“A certificate of occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only Prima facie evidence of such right, interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void….
Consequently, where it is proved as in this case, that another person other than the grantee of a certificate of occupancy had a better title to the land, the court may have no option but to set aside the grant or discountenance it as invalid, defective or spurious as the case may be, see Dzungwe v. Gbishe & Another (1985) 2 NWLR (Pt 8) 528 at 540. 2. Ogunleye vs. Oni (1990) 2 NWLR (Pt.135) 735.” See, also, Omiyale vs. Macaulay (2009) 7 NWLR (Pt.1141) 597; Ilona vs. Idakwo (2003) 11 NWLR (Pt. 830) 53; Admin./Exec., Estate, Abacha vs. Eke-Spiff (2009) 7 NWLR (pt.1139) 97. So be it with the respondent’s certificate of occupancy, exhibit 5.
That is not all. Perhaps, unknown to the respondent, its production of exhibit D5, the certificate of occupancy, which it parades, as an incorruptible evidence of title in the disputed land, caries with it the further need for the court to inquire into it about the following:
(a) whether the document is genuine and valid;
(b) whether the document has been duly executed, stamped and registered ;
(c) whether the grantor had the authority and capacity to make the grant;
(d) whether the grantor had in fact what it purported to grant; and
(e) whether it had the effect claimed by the holder of the document.
These crucial inquires had been noted in a sea of cases, Kyari v. Atkali (2001) 5 SCNJ 421; Romaine vs. Romanie (1992) 4 NWLR (Pt.238) 650; Dabo Abdbilahi (2005) 7 NWLR (pt.923) 181; Oyeneyin v. Akinkugbe (2010) 14 NWLR (pt. 1184) 265; Jolasun v. Bamgboye (2010) 18 NWLR (pt. 1225) 285.
I have situated or juxtaposed the respondent’s certificate of occupancy, exhibit D5, with these outlined questions. To begin with, the exhibit (D5) is far from being genuine and valid in the sense that it was issued to the respondent in circumstances that constitute an affront to the sacrosanct provisions of the Land Use Act. It failed to recognize the prior existing right of the appellant in the disputed land. On this score, I dare to christen it a phoney document begging for genuineness and validity. Besides, since the appellant had a subsisting interest in the land, donated to him by the Land Use Act, the grantor of the certificate of occupancy, the Kwara State Government, was without the requisite vires and capacity to issue it to the respondent. It follows that the grantor had not what it purported to grant to the respondent. It stems from the foregoing that the certificate of occupancy is miles away from the effect its holder, the respondent, claims it has. This is because, it is not potent enough to vest it with any overriding interest in the disputed land as it is incapable of putting paid to the appellant’s statutory right. Going by the foregoing, I am afraid, the respondents certificate of occupancy, to say the least, is not worth the paper it is written. It is unfortunate though!
On account of these reasons, coupled with more comprehensive reasons adduced in the leading judgment, I, too, hold that the appeal is imbued with merit. Accordingly, I allow it. I abide by the orders made in the leading judgment.
Appearances
Salman Jawondo Esq. with him Idris Abdullahi Esq.For Appellant
AND
Sheni Ibiwoye Esq. with him Taiye Oniyide Esq.For Respondent
