ALHAJI ABBA ASHEIK V. BORNO STATE GOVERNMENT & ORS. (2011)

ALHAJI ABBA ASHEIK V. BORNO STATE GOVERNMENT & ORS.

(2011)LCN/4700(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 12th day of July, 2011

CA/J/39/2007

RATIO

TITLE TO LAND: WHETHER A PLAINTIFF SEEKING A DECLARATION OF TITLE TO LAND HAS A DUTY TO SHOW CLEARLY THE AREA OF LAND TO WHICH HIS CLAIMS RELATES

The law is that a plaintiff seeking a declaration of title to land has a duty to show clearly the area of land to which his claim relates, its exact boundaries and its extent as no court would be obliged to grant a declaration to on unidentified land. See Ogedengbe vs. Balogun (2007) 9 NWLR Pt 1039 page 380, Adelusola vs. Akinde (2004) 12 NWLR Pt 887 Page 295, Okochi vs. Aninkwoi (2003) 18 NWLR Pt 851 page 1. PER UZO NDUKWE-ANYANWU, J.C.A.

TITLE TO LAND: EFFECT OF A PARTY FAILING TO ASCERTAIN THE SIZE OF THE PARCEL OF LAND HE IS CLAIMING

ORDER OF PRIORITY: WHETHER THE FIRST IN TIME WILL ALWAYS PREVAIL IN LAND MATTER WHERE THERE ARE TWO CONTENDING PARTIES

The first in time always prevails in land matter, where there are two contending parties. This is in pursuit of the well known maxim “quo PRIOR est tempore, potior est jure” Auto vs. Ibe (2003) 13 NWLR Pt 837 PAGE 247, Ilona vs. Idokwo (2003) 11 NWLR Pt 830 page 53. PER UZO NDUKWE-ANYANWU, J.C.A.

TITLE TO LAND: WAYS OF PROVING TITLE TO OR OWNERSHIP OF LAND

There are 5 ways of proving title to or ownership of land. These are by (1) traditional evidence: (2) production of documents of title duly authenticated in the sense that their due execution must be proved; (3) by positive acts of ownership extending over a sufficient length of time; (4) by acts of long possession and enjoyment of the land; (5) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. Ayoola vs. Odofin (1984) 11 SC 120, Ewo vs. Ani (2004) 17 NSCQR 36, Nkwo vs. Iboe (1998) 7 NWLR (Pt. 503) 31 at 34, Adesanyo vs. Aderounmu (2000) 6 SC (Part 11) 18. The law is that the establishment of one of the five ways is sufficient. PER UZO NDUKWE-ANYANWU, J.C.A.

PRODUCTION OF A CERTIFICATE OF OCCUPANCY: WHAT THE COURT MUST BE SATISFIED WITH BEFORE THE PRODUCTION OF A CERTIFICATE OF OCCUPANCY OR DOCUMENT OF TITLE IS ADMITTED AS SUFFICIENT PROOF OF OWNERSHIP

TRESPASS: THE NATURE OF AN ACTION IN TRESPASS: WHO IS THE PROPER PERSON TO INSTITUTE AN ACTION IN DAMAGES FOR TRESPASS

In questions of trespass, the appellant cannot righty maintain an action in trespass. Trespass is a civil wrong against possession. An action in trespass presupposes that either the plaintiff is the owner of the land in dispute or he is in possession of it. The proper person to institute an action for damages for trespass is the person in possession. Where, however, a person is not in possession, there is nothing in law and in fact for the adverse party to disturb by way of trespass. Dim vs. A.G.F (2004) 12 NWLR Pt 888 page 459, Kareem vs. Ogunde (1972) 1 SC page 182. Thus a plaintiff who fails to satisfy the court that he is in possession of the land in dispute cannot succeed in an action in trespass. Oluwole vs. Abubakor (2004) 10 NWLR Pt 882 page 549. PER UZO NDUKWE-ANYANWU, J.C.A.

JUSTICES

MONICA. B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

PHILOMENA P. EKPE Justice of The Court of Appeal of Nigeria

Between

ALHAJI ABBA ASHEIK Appellant(s)

AND

1. BORNO STATE GOVERNMENT
2. ATTORNEY-GENERAL, BORNO STATE
3. PERMANENT SECRETARY, BUREAU OF LANDS AND SURVEYS, MINISTRY OF LANDS, BORNO STATE
4. BAMA LOCAL GOVERNMENT
5. COMMISSIONER OF POLICE, BORNO STATE COMMAND Respondent(s)

MONICA B. DONGBAN-MENSEM J.C.A. (Delivering the Leading Judgment): This appeal challenges the decision of the High Court of Justice Borno holden of Maiduguri coram judice Isa Othman (J) (of blessed memory).
Upon the application of the Appellant as Plaintiff at the trial Court, two Suits; to wit BA/1/2003 and BA/2/2003 were consolidated into one and was heard as BA/1/2003. The two Plaintiffs in the two suits are Alh. Abba Asheik And Alh. Abba Kolo A. Asheik.
The relief’s placed before the trial Court are stated in Appellant’s amended statement of claim as follows:
9. Whereof the plaintiff claims from the defendants jointly and severally as follows:
a. A sum of N10,000,000.00 (Ten Million Naira) being general damages for trespass to plaintiff’s properties No. BO. 43476 at Bama, Borno State.
b. A sum of N5,000,000.00 (Five Million Naira) being special damages for the cost of fencing the Property No. BO/43476 situate at Bama Town destroyed by the defendants/their agents or privies on 22nd of July, 2003.
c. An order of perpetual injunction the defendants their agents and privies from any further trespass to the said property till determination of this matter.
d. A declaration that the defendants’ action in trespassing and destroying the plaintiff’s fence on the landed property situate at Bama Town covered by Right of Occupancy No. BO/43476 is barbaric and an abuse of power.
e. A declaration that property covered by Right of Occupancy No. BO/43476 situate at Bama Town is the bona-fide property of the plaintiff.
f. A declaration that the defendants cannot revoke the interest of the plaintiff on the property by mere show of power or by destroying the fence erected on the piece of land.
g. The plaintiff further claims the cost of this suit.
Dated this 5th day of April, 2004.
The facts which metamorphosed into this appeal per the Respondents’ brief are as follows:
1. The Appellant applied to the 1st Respondent for a grant of a Certificate of Occupancy over a parcel of land situated at Bama on 26th day of July, 2001 for a residential building. His application was purported to have been approved and he was granted a right of Occupancy No. BO/43476.
2. On 28th July, 2002 a similar application was made by one Alhaji Abba Kolo A. Asheik to the 1st Respondent for a grant over a parcel of land situated of Bama also for a residential building and it was purported to have been approved and he was granted a Certificate of Occupancy No. BO/43478.
3. The 1st – 3rd Respondents shortly after the grant to the Appellant and the said Alhaji Abba Kolo A. Asheik discovered that the grant were made in error and/or on misrepresentation of facts, (as certain facts that the parcels of land were allocated to the 4th and 5th Respondents and one Sani Dara Jamal were not made available to the 1st Respondent) revoked the grants and demolished the structures on the land after directing the Appellant to remove some but the Appellant and the person concerned foiled to do so.
4. The affected persons including the Appellant were duly served with a revocation notice, a stop work order, and notice to remove the Structure.
Before I proceed with the main issues it is important that I make the point that there is only one Notice of Appeal before this Court. The learned Counsel for the Appellant has described “the grounds of appeal for both cases” as “intertwined” I am, not sure I understand what that means. The learned Counsel went on to formulate four issues but referred to having formulated five issues, from the amended Notice of Appeal and then proceeds to tie and argue issues 2, 3, 4 as relating to case No. BA/1/2003 on Right of Occupancy No. BO/43476 while issues 1 and 5 relate to case No. BA/2/2003 on Certificate of Occupancy No. BO/43478.
No process has been placed before this Court to show any order consolidating two or more appeals into one. Although an Appellant is at liberty to file more than one Notice of Appeal in one case, he cannot, without the express leave of the Court file one Notice of Appeal on two cases even if the records are the same. The implication here is that no appeal was filed on one of the cases consolidated. Consolidated cases always retain their unique character in spite of the fact of consolidation. It cannot be assumed, without a clear indication of that fact, that cases consolidated at trial are necessarily so consolidated on appeal.
By the provision of Section 25 of the Court of Appeal Act 2004 (as amended) on Appellant can file more than one Notice of Appeal formulate and argue issues on same provided the notices were filed within the prescribed statutory period and the issues are adequately tied to the relevant Notice and Grounds of Appeal. (See: CHIDOZIE IFEKANDU & ANOR V. JULIUS OZOEGWU (2008) ALL FWLR (Pt.452) 1110 at 1117 AND TAHIR V BANK OF THE NORTH LTD (2007) ALL FWLR (Pt. 388) 1072 at 1090). NATIONAL ELECTORAL COMMISSION V. PRINCE EFTIOK ARCHIBONG UBOH (2001) FWLR (Pt.55) page 501 at 512). It is however untenable to formulate issues from two distinct cases without an appeal having been filed on each , (see order 6 Rule 4 of the Court of Appeal Rules 2011). The learned trial Judge found that case No. BA/2/2003 on Certificate of Occupancy No. BO/43478 was abandoned and no appeal has been filed on same. The decision of the learned trial Judge on that piece of land therefore remains valid and unchallenged and subsisting.
APPELLANT’S ISSUES FOR DETERMINATION:
“The Appellant’s issues for determination as distilled from his Amended Notice of Appeal are:
1. Whether or not the Appellant, Alhaji Abba Asheik is the same person as Alhaji Abba Kolo A. Asheik and by virtue of that possesses the locus to institute Suit No. BA/2/03 over the land covered by the Certificate of Occupancy No. BO/43478 (Grounds 3 and 4 of the Amended Notice of Appeal).
2. Whether or not the title of the Appellant to the plots of land covered by Right of Occupancy Nos. BO/43476 and BO/43478 were validly revoked. (Grounds 1, 7, 8 and 10 of Amended Notice of Appeal).
3. Whether or not the Respondent’s were able to prove that there existed prior legal ownership over and above the interest of the Appellant in the property covered by Right of Occupancy No. BO/43476 and Certificate of Occupancy No. BO/43478. (Grounds 5 and 6 of Amended Notice of Appeal).
4. Whether or not the demolition of the Appellant’s property by the 1st – 3rd Respondents was illegal and therefore rendered the said 1st – 3rd Respondents liable (or not) to the Appellant for trespass and damages. (Grounds 2, 9, 11 and 12)
The Respondent’s issues are as follows:
“1. Whether or not based on the pleadings and the evidence in support of same the appellant proved a better title over right of Occupancy Nos. BO/43476 and BO/43478 to be entitled for a declaration of title over some. (Grounds 5 and 6)
2. Whether or not Alhaji Abba Asheik is one and same person with Alhaji Abba Kolo A. Asheik in the two suits which were later consolidated to warrant the dropping of the name Alhaji Abba Kolo A. Asheik. (grounds 3 and 4).
3. Whether or not having regard to the circumstances of this case there was a proper and valid revocation of the right of Occupancy Nos. BO/43476 and BO/43478. (Grounds 1, 7, 8 and 10)
4. Whether the appellant can maintain action for damages against the respondents for trespassing on the appellant land having regard to the evidence before the Court. (Grounds 2, 9, 11 and 12)
I have carefully read and fully assimilated the Judgment of the trial Court, the Appellant’s amended grounds of appeal and all the issues formulated for determination by both parties from the grounds of appeal. I find that the thorny issue in contest is the revocation of the title documents issued to the Appellant by the Governor of Borno State in the instruments Nos. BO/43476 and BO/43478 and procedure of issuance which seems to be shrouded in controversy. The issue of damages is also addressed.
I am therefore of the humble view that this appeal can be determined on two issues. These are:
1. Whether or not the title of the Appellant to the plots of land covered by Right of Occupancy Nos. BO/43476 and BO/43478 were validly revoked. (Grounds 1, 7, 8 and 10 of Amended Notice of Appeal).
2. Whether or not the demolition of the Appellant’s property by the 1st – 3rd Respondents was illegal and therefore rendered the said 1st – 3rd Respondents liable (or not) to the Appellant for trespass and damages. (Grounds 2, 9, 11 and 12).
Issues One, (incorporates issues 1, 2 and 3.)
The sum total of the submission of the learned Counsel for the Appellant in this issue is that there was no valid revocation of the Appellant’s rights over the lands in issue. The reason is that the 1st – 3rd Respondents failed entirely to fulfill any of the condition for a valid revocation.
It is further the submission of the learned Counsel for the Appellant that by the provision of Sections 36 and 44 of the Constitution of the Federal Republic of Nigeria 1999, Sections 28 and 44 of the Land Use set out the conditions for a valid revocation which were not followed in the revocation of the Appellant’s lands.
(i) Revocation must be by a person who has the power to revoke, that is a public officer only authorized by the Governor.
(ii) Notice shall be issued stating the purpose of revocation as prescribed by the Act.
(iii) Notice shall be served on the holder.
(iv) Notice must be proved to have come to the knowledge of the person concerned i.e. there must be receipt of such of notice.
(v) The person whose right revoked must have been given an opportunity to respond/reply to the reasons for revocation before same is carried out in pursuance of his right to fair hearing.
Cited in support of this submission ore the following cases:
1. OSHO V. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (Pt.184) 157;
2. ATTORNEY-GENERAL LAGOS STATE V. SOWANDE (1992) 8 NWLR (Pt. 261) 589;
3. LAWSON V. AJIBULU (1991) 6 NWLR (Pt.195) 44
4. MAJIYAGBE V. ATTORNEY-GENERAL NORTHERN NIGERIA (1957) NWLR 158;
5. EREKU V. MILITARY GOVERNOR, MID-WESTERN STATE (1974) 19 SC 59 and the opinion of the learned author: Professor I.O. Smith at pages 518 – 521 of his book titled “Practical Approach to Law of Real Property in Nigeria” 2nd Edition, Ecowatch Publication Ltd., 2007.
The learned Counsel for the Respondents faults the submission of the Appellant’s learned Counsel by citing the provisions of Sections 1 and 5(2) of the Land Use Act which vests the radical ownership of lands in a State in the Governor of the State and Section 28(1) of the same Act which also vests the Governor with the power to re-possess by revocation, a right of occupancy allocated to an individual for an overriding public interest. The learned Solicitor-General of Borno State submits that the revocation of both lands was proper and in accordance with the law. The learned Solicitor-General submits that all the requisite notices were served on the Appellant, through the address he provided in the file and through a security guard near the land. Appellant failed to proof better title in that he abandon his claim before the trial Court in respect of property No. BO/43478. The certificate issued to the Appellant in respect of property No. BO/43476 is subject to be surveyed before any development and it was not surveyed before Appellant developed some contrary to the terms of grant. (See evidence of DW3 page 32 – 33 line 40 – 44 and terms contained in exhibit B1.) Furthermore the grant in respect of property No. BO/43476 is ultra vires the power of the Governor being the property of the 4th Respondents and is therefore null and void ab initio. The certificate issued in respect of properties No. BO/43476 and BO/43478 were only prima facie evidence of ownership and Appellant has failed to established that the certificates bestow on him a better title to be entitle for a declaration over some having regard to fact that the land in dispute belong to 4th and 5th Respondents and it was erroneously allocated to the Appellant. 1st – 3rd Respondents have the power to correct the error by revoking the allocation made to the Appellant and to demolish the structure erected. The only option left for the Appellant was to claim for compensation for acquiring his properties for public purpose which he failed to do and opted for claim for damages for trespass by the Respondents which he is not entitle as he has foil to prove the act of trespass by the Respondents.
In a claim for trespass submits the learned Solicitor-General, the maxim qui prior est tempore portior est jure (the law protects the first in time, or the first in time is stronger in law) applied. The 4th and 5th Respondents being first in time deserve to be protected and not the Appellant against the Appellant act of trespass. 4th and 5th Respondents have shown by their pleadings and evidence that they were first in time to be in exclusive possession of the land allocated to the Appellant and that Appellant trespassed on their land. See paragraph 7 of the 4th and 5th Respondents’ statement of defence on page 20 of the record and the evidence of DW3, DW7, and DW8 on pages 32 – 33 and 37 – 38 lines 40 – 44 of the record and the case of AJERO V UGORGI (1999) 7 SCNJ PAGE 40 at 49 where the Supreme Court held:
“I entertain no doubt in my mind of all that the record shows that the plaintiffs are in exclusive possession of the land in dispute as the trial High Court found above. Possession in law means exclusive possession because if it is not exclusive the law will not protect it……. Cultivation of a piece of land, erection of a building or a fence and demarcation of land with pegs at its corners have all been held to be evidence of possession”
It must also be noted that Appellant himself admitted the act of exclusive possession of the land by the Respondents based on activities of the Respondents on the land especially the 4th and 5th Respondents activities prior to its allocation to the Appellant. (See the evidence of PW2 on page 25 line 5 – 11 page 26 lines 1 – 2 page 27 lines 25 – 28, 23 – 24, 41 and page 28 lines 6 – 8 of the record). (See AKPAN V OTONG (supra).
The learned trial Judge found and held as follows on the issue of the revocation of the two lands in issue. (pages 98 – 101 of the records, page 22 of the Judgment of the trial Court):
The file in respect of the property was also tendered in evidence and was admitted and marked Exhibit C. The Exhibit C before the Court shows that after the grant of right of occupancy to Abba Kolo A Sheik, it was discovered that it was allocated to someone, before a certificate was issued to Abba Kolo A. Sheik as shown at page 17 of Exhibit C. At page 25 of Exhibit C a memorandum was written to the Governor of Borno State asking him to revoke the certificate of occupancy of Abba Kolo A. Sheik in the public interest to preserve the Chairman residence and the Governor in exercise of his powers under Section 28 of the Land Use Act approved the revocation on 20th June 2003. As regards the property covered by the right of occupancy No. BO/43476 there is evidence before the Court that the land in question is part of the land belonging to the Police Force as shown by Exhibits D and E. In Exhibit C the defendants’ witnesses No. 2 was directed on page 15 and he indicated to the defendant witness No.3 that when he went to Bama to survey the land in question he was prevented by the Divisional Police Officer Bama who referred him to the Commissioner of Police. (The witness No. 2 minute to the then Surveyor General on Page 16 of Exhibit D that the land in question belongs to the Police since 1965 and has neither been revoked or withdrawn hence it is not possible to allocate all or any portion of it to another person. The witness identified the title plan, and identified the land belonging to the police by the beacon numbers B.3254, B.3251, B.3260, B.3259, B.3258, B.221, B.220, B.3257, B.3256, B.3255 closing back to B.3254 and stated that the land in dispute is within the beacon.
The defendant witness No. 3 the Surveyor General informed the Court that on receipt of the report of Lawan Shettima the defendant witness No. 2 on page 16 of the file he wrote to the Director of Lands that the property in question is within police land as shown by the title deed plan duly signed by the former Surveyor General. The file in question as never found again despite several searches, another temporary file was open and the witness identified the temporary file. The witness stated that he did not see the original file in the office except in the Court. The witness informed the Court that he did not survey the land in question and did not order any officer to do so. The witness contents that it is not possible to obtain beacon number without survey and the land in question cannot be identified without beacon numbers, because only a Surveyor can show you the size of your land. The witness contents that it is not possible to develop the land without identifying and no one has the right to identify a land other than the official Surveyor of the Government and in respect of the land in question no such survey was done lest it can be identified. The development on the land if any is illegal. As regard the ownership of the land in question the plaintiff himself testified that there was boys’ quarters within the land for which he has paid N20,000 showing that the land belongs to someone before. The evidence before me as testified by defence witness Nos. 2, 3, 4, 5, 7 and 8 established the fact that the land in dispute is within the land belonging to the police and Exhibits C and E have confirmed it further. (Emphasis mine)
These are weighty findings which cannot be shoveled under the carpet under any form of guise at all. The learned Counsel to the Appellant elected to ignore the legal issues raised by these findings and went rather for the limbs of the issues. Citing the decision in the cases of AWUSE V ODILI (2005) 16 NWLR (Pt. 952) 416 at 510 – 511 Paragraphs G – A: TERAB V. LAWAN (1992) 3 NWLR (Pt. 231) 569; ROTIMI V. FAFORIJI (1999) 6 NWLR (Pt. 606) 305 the learned Counsel of the Appellant derided the learned trial Judge as embarking on a voyage of investigation. Nothing could be further from the correct principles. These are election cases which are governed by a different jurisprudential procedure and the facts of those cases are clearly distinguishable from those of the instant appeal. Unlike in the case of AWUSE V ODILI AND OGBORU V UDUAGAN (supra) Exhibit “C” tendered of the trial Court was specific on the subject matter The said Exhibit is titled Alh. Abba Asheik (file No. BO/43476 while Exhibit “D” is titled Abba Kolo A. Asheik (filed No. BO/43478) and the subject matter is land; both files being those of the Ministry of Land and Survey, Maiduguri. No other party is listed on the said Exhibit “C” the admission of which the learned Counsel for the Appellant did not challenged.
In the case of BUHARI V. INEC & 4 ORS. (2008) 19 NWLR (Pt. 1120) Page 246 at 415 , the Supreme Court explained the rationale for allowing the practice of tendering bulk documents which is meant to ensure the speedy trial of election matters. Even at that the learned trial Judge is not permitted to attach value to such evidence without separating the grains from the shaft.
Equally, the learned Counsel on all sides are free to comment on documents which had been tendered in evidence including drawing inference and conclusions of the address stage.
Exhibit “C” was dully and sufficiently pleaded and the evidence of DW3 particularly adequately adumbrated on the contents of the said Exhibit “C”.
I feel bewildered by the submission of the Appellant’s learned Counsel that “Exhibit “C” is the bulky ministry file on the land in dispute and contained several documents.” Exhibit “C” bears the name of the Appellant and none other. No dissenting voice was raised by the Appellant as Plaintiff when the said Exhibit was tendered. The Appellant cannot now come to this Court to raise issues which should have been adequately trashed under cross-examination. The authorities of NTEOGWUILE V OTUO (2001) 16 NWLR (Pt. 738) 58; OLANLEGE V AFRO CONTINENTAL (NIG) LTD (1996) 7 NWLR (Pt. 458) 27: FAKOREDE V A.G. WESTERN STATE (1972) 1 ALL NLR (Pt.1) 178; IKENYE V. OFUNE (1985) 2 NWLR (Pt. 5) I therefore have no relevance in the instant appeal.
Exhibit “C” palpably demonstrates that the Governor of Borno State did not have what he purported to give and could not therefore have conferred any right on the Appellant. The Appellant therefore elected to ignore the said Exhibit “C”. An appeal is not a new trial where parties can raise fresh issues of will and argue them on appeal rather than address them squarely of the trial Court.
In proving the prior rights in existence before the null allocation of the lands to the Appellant, the Respondents applied four of the five ways of proving ownership of land in Nigeria (Refer: IDUNDUN V OKUMAGBE (1976) 9 – 10 SC 227 at 296. The allegation that the learned trial Judge went on voyage of investigation is misconceived. A Judge is entitled to draw inferences from exhibits tendered before it especially one tendered without a shred of objection. Further, it should be considered whether the lands the Appellant claims were virgin lands without encumbrance. The Appellant himself admitted that he found a building on one of the land. He also acknowledged that the land share boundary with others and these are two public organs: the residence of the Bama Local Government Chairman and the offices and barracks of the Nigeria Police which have also exhibited several acts of ownership over the surrounding land stables, burial grounds etc.
The peculiar feature of this appeal is that the revocation was not done to re-allocate the land for public interest/usage. The pieces of land were already duly assigned for public use. The learned trial Judge held that it is in the public interest to “preserve the Chairman’s residence”. It has been shown in Exhibit “C” and “E” and the testimonies of the defence witnesses that the two lands purportedly allocated to the Appellant have common boundaries with the Police and the house of the Chairman of the Local Government to the Bama Local Government. These facts were not controverted of the trial but rather affirmed by the Appellant who said he paid off N20,000.00 for an existing building on the land. The receipt of payment was not produced nor the vendor and the circumstances of purchase stated.
It has been decided in a plethora of cases that:
“… a certificate of occupancy is only a prima facie evidence of title or right of occupancy in favour of the person whose name is on the certificate of occupancy bound to examine all the surrounding circumstances, including the nature of competing claims, why the certificate of occupancy is issued in that person’s name and any other issues of law or fact on why a rebuttable of that presumption is raised”.
(See ATTA V. EXANAH (2000) 11 NWLR (Pt. 678) 363 at 385) See also AUTA V. IBE (2003) FWLR (Pt. 173) 87.
As to the dual identity of the Appellant, the learned trial Judge found and held as follows:
I agree with the submission of the learned Counsel for the defendant that the plaintiff did not plead to the fact that he is Abba Kolo A. Sheik as shown in his amended statement of claim supra. There is no evidence of any deed of assignment that transferred the title belonging to Abba Kolo to the plaintiff or any evidence to show that Alhaji Abba A. Sheik has the right to institute an action on behalf of Abba Kolo A. Sheik. There is no law that prevents a person to possess more than one plot in his own name to obtain plots.
I therefore hold that Abba Kolo A. Sheik is not Alhaji Abba A. Sheik as such the plaintiff has failed to prove title to the property in question to enable him institute on action on behalf of the holder of the certificate of occupancy No. BO/43478″.
I cannot fault this decision. The learned Counsel to the Appellant submits that the facts were stated in an affidavit. The suit was not fought on affidavit evidence but on oral and documentary evidence. Deposition in affidavit cannot take the place of pleadings supported with oral evidence which could be devalued by cross-examination.
The learned Counsel to the Appellant submits further that the Respondents, especially 4th – 5th Respondents failed to establish by the five traditional ways, that the land in question belong to them (Refer IDUNDUN V. OKUMAGBA (1976) 9-10 SC 246 and KACHALLA V BANKI (2001) 10 NWLR (Pt. 721) 442 at 451). The reason, maintains the learned Counsel, is that the Respondents only produced site plans and survey plans in the names of the Nigeria Police and the Local Government. Counsel submits that neither a survey plan nor a site plan fall under any of the five ways by which title to land is proved. Relying on the authority of ELERAN V ADEROPE (2008) 11 NWLR (1997) 50 at 76 – 78 Paragraphs e – d, 82 Paragraphs a – d that a mere of location of a plot of land to a person confers no title and such title being equitable is subject to the overriding subsequent grantee of a Certificate of Occupancy who is deemed to possess a legal title. (The cases of ROMAINE V ROMAINE (1992) 4 NWLR (Pt. 238) 650; DABO V ABDULLAHI (2005) 7 NWLR (Pt. 923) 181 etc. also relied upon).
The Respondents submit, that in a claim for a declaration of title the Appellant trespass to land, is to succeed on the strength of his case and not to depend and/or rely on the weakness of the defence. See the case of OJE V BABALOLA (1991) 4 NWLR (Pt. 185) 265 at 281 where Supreme Court held that:
‘For it has been established by numerous cases starting with KODILINYE V. ODU (1935) 2 WACA 336 that, except that a Plaintiff may take advantage of any part of a defendant’s case which supports the Plaintiff’s in a defendant’s case which supports the Plaintiff’s in a claim for a declaration of title such as this the Plaintiff must succeed on the strength of his own case and not on the weakness of the defence’s case”.
In other words the Appellant has the burden to prove that the Certificate of Occupancy No. BO/43476 was properly issued to him. Although one of the five ways by which title over land can be proved is by production of title document such as the Certificate of Occupancy tendered by the Appellant, unfortunately the production of a Certificate of Occupancy is not a conclusive prove of title as it is only a prima facie evidence of title or possession in favour of the person whose name is on the certificate of Occupancy. Where a rebuttal is raised on that presumption, then all necessary factors based on law or facts on why the rebuttal of that presumption is raised must be considered. (See the cases of OFOEZE V. OGUGUA (1996) 6 NWLR (Pt.455) 451, BALOGUN V. LABIRAN (1988) 3 NWLR (Pt.80) 66, MADU V. MADU (2002) 13 NWLR (Pt. 784) 231 at 248, ADEBAKIN V ODUJEBE (1972) 6 SC 208).
With due respect, the learned Counsel to the Appellant got it all wrong in this issue. The cases of the 4th and 5th Respondents have, gone far beyond survey plans; the Respondents are in fact in long effective possession which is a substantial element of ownership. The survey plans and the evidence of allocation of the said plans are affirmation of legal possession. Thus, the 4th and 5th Respondents are not mere bearers of allocation papers or Certificate of Occupancy without possession. They are each in effective possession with visible and extensive acts of possession also indicative of long occupation and therefore perceived ownership. The Nigeria Police Force, per the evidence of DW8, have built offices, barracks and stables on the said land and are in actual possession of the land.
The Nigeria Police is an organ of the Federal Government (Refer: Section 214 of the 1999 Constitution). It is a complete and comprehensive organ with national institutions of its own. A piece of land adjacent to one occupied by the Police cannot be on idle land which can be allocated behind the back of the said authority. There is unrequited evidence that the land officers who went to survey the Local Government land were stopped by the Police.
Similarly, Section 7(1) – (2) of the Constitution also has provisions on the Local Government and Local Government Council. These are therefore not private but public organs of Government whose land cannot be diverted in favour of an individual.
The decision of my learned brother Ogunwumiju in ELERAN V ADEROPE (2008) 11 NWLR (1997) 50 at 76 – 78 Paragraphs e – d, 82 Paragraphs a – d cited by the learned Counsel to the Appellant is clearly not applicable in the instant appeal. The 4th and 5th Respondents are in fact in “actual possession of the land”.
The Appellant made a heavy weather of his being in possession of 2 Grants of Right of Occupancy over the land in dispute. The mere possession of the Grant of Right of Occupancy is not a magic wand which can destroy existing rights over the land in dispute. The law seems to be that for a grant or even a Certificate of Occupancy to be valid, there must not be in existence at the time of the grant of Right of Occupancy or Certificate of Occupancy was issued, a customary owner who has not been divested of his title; there must be no encumbrances at all. The only way to ensure that the land is free of prior claims is to allow the Surveyor-General to perform his duties without undue influence. This the Appellant refused to do. Rather he pulled his weight over to the office of DW3 and demanded to be given the title documents in total disregard for due process. And he got what he deserved – null and void documents which conveyed nothing to him. (See generally:
1. EZEANAH V ATTA (2004) 7 NWLR (Pt. 873) 468.
2. REGISTERED TRUSTEES APOSTOLIC CHURCH V. OLOWOLENI (1990) 6 NWLR (Pt. 158) 514 at 529.
3. DANTSOHO V MOHAMMED (2003) 6 MJSC 97 at 118 – 119.
4. IBRAHIM V. MOHAMMED (2003) 4 MJSC 1.
5. OLOHUNDE V ADEYOJU (2000) 10 NWLR 562.
6. PROVOST V. EDUN (2004) 4 MJSC 94 at 116 – 117)
Thus, the mere production of a Right of Occupancy/Certificate does not by itself entitle a party to a declaration as any party without title to a piece or parcel of land in respect of which a grant of right was issued, acquires no right or interest.
The learned trial Judge, respectively examined and evaluated the evidence of positive acts of possession and ownership led by the 4th and 5th Respondents.
He categorized his finding into three, namely,
“1. Ownership of the local market situate at the boundary of the land in dispute;
2. Possession and cultivation of the said land; and
3. The use of the land for the burial of corpses.
The activities of the police on the land since 1965 has qualified the requirement to infer ownership in favour of the police. The anomaly in the grant of the police land to the Appellant is as a result of misrepresentation of the true facts to the Governor who erroneously approved the grant”.
I agree entirely with this submission.
The Appellant himself admitted in evidence on page 28 lines 6 – 8 of the record that “Yes, there is a building within the area which is occupied. I am not the one who built that building I saw it there when I was building the area”. This means the said lands are not virgin lands. There is prior customary right of a very obvious presence
The evidence of the DW3 tells it all and I cannot help but return to it from time to time in this Judgment on (page 32 of the records). The DW3 clearly sets out the procedure and how same was undermined in considering the interest of the Appellant –
‘DW3 the essence of form 1213 is to indicate the interest of any person on the land which has been applied for, and when there is any other interest the Surveyor General will be inform and the file will be sent to the Secretary Land Allocation Committee to withdraw his allocation”.
The Appellant did not allow this procedure to be followed. The original file disappeared and a temporary file was opened the contents of which totally misled the Governor into issuing Certificate of Right of Occupancy over a property he did not have.
Issue Two
The learned Counsel for the Appellant cites Section 43 of the Constitution of the Federal Republic of Nigeria 1979, the decision of the Supreme Court in the case of ATTORNEY-GENERAL LAGOS STATE V ATTORNEY-GENERAL OF THE FEDERATION & 35 ORS (2003) 12 NWLR (Pt. 833) Page 1 in arguing the illegality of the demolition of the fences put up by the Appellants. It is further the submission of the learned Counsel that:
“since the demolition of the Appellant’s property was done based on a law promulgated by the National Assembly on an item contained in the Residual Legislative List which can only apply to the Federal Capital Territory or Federal Government Land , the said demolition is grossly illegal” (See ATTORNEY-GENERAL LAGOS STATE V ATTORNEY-GENERAL OF THE FEDERATION & 35 ORS (supra).
The learned Counsel for the Respondent has in the Respondent’s brief, put it admirably in these terms:
“By virtue of the preamble of the Land Use Act all land comprised in the territory of each state are vested in the Governor of the State except land which is vested in the Federal Government or its agencies.
The Police being the agent of the Federal Government the State Governor has no power to deal with the land of the police by allocating and issuing certificate to the Appellant and the certificate issued to the Appellant therefore is ultra vires the Governor power. The grant is therefore null and void ab initio”, maintains the learned Counsel.
The evidence adduced of the trial shows that certificate No. BO/43476 was issued in total disregard to the interest of the police over the land whose interest was in existence since 1965. They did not sleep on their right. The police have been excising numerous and positive acts of ownership on the land. (See the evidence of DW8 on page 38 lines 35 – 39 of the record) where the witness stated thus:
“The police acquired the land or was granted the land by the North Eastern State Government in 1965. Since 1965 we have built barracks, stables and offices on the land. The land was open and not fenced. The place was encroached by one Alhaji Abba Asheik” (Emphasis supplied)
See also, the evidence of DW2 and DW3 of pages 30 – 33. See the case of AKPAN V OTONG (1996) 10
NWLR (Pt 476) 108 at 130 where the Supreme Court held that: “However, a party relying on acts of possession and ownership as evidence of title to land must show that such acts, not only extend over a sufficient length of time, but that they are numerous and positive enough to warrant the inference that the claimant is the exclusive owner of the land. (See EKPO V ITA (supra), ANYANWU O. V. MBARA (1992) 5 NWLR (Pt. 242) 386 at 401; PIARO V TENALO (1976) 12 SC 31 at 41: D.O. IDUNDUN & ORS. V DANIEL OKUMAGBA, (supra).
Appeals are not all about arguments but constructive arguments based on facts and the law. The land in question has been shown to be occupied by the Nigeria Police: an organ of the Federal Government of Nigeria. Section 214(1) of the 1999 Constitution of the Federal Government of Nigeria provides that:
“There shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force and subject to the provisions of this section no other police force shall be established for the Federation or any part thereof.”
There is no State Police Force and the 4th Respondent which claims possession and ownership of the said has not been made out to be the Borno Police Force but Nigeria Police Force. The said argument of the learned Counsel is therefore self-contradictory.
The case of CHIADI V. AGGO (2005) 1 NWLR (Pt. 907) Page 319 – 340, Paragraphs F – F is not relevant in this appeal. There is no question of an acquiring authority against which encroachment must be construed strictly. The Appellant is in fact the offending party who seeks to encroach on public property rights. With utmost due respect, the brilliant submission of the learned Counsel to the Appellant on the NIGERIA URBAN AND REGIONAL PLANNING ACT CAP N138, LAWS OF THE FEDERATION OF NIGERIA, 2004 (From Decree No. 88 of 1992) goes to no issue and are purely academic and of no relevance to the instant appeal.
Why should the Appellant be compensated? By the pleading and evidence placed before the learned trial Judge, particularly the evidence of DW3 at page 33 of the main records the Appellant used his influence with the Government to undermine due process which would have brought to the attention of the Governor, the fact that the Governor in fact had nothing to give out to the Appellant. The testimony is instructive and worthy of reproduction:
“Then the Permanent Secretary of my ministry at that time directed me to produce the title plan but i insisted for a written directives but the Permanent Secretary refused to write the directives. One morning the applicant came to the Permanent Secretary and said since the Surveyor General is the impediment to getting my certificate I will not leave unless he produce same. At that time I produce a title plan and the applicant went away”.
The certificate was produced within two days thereafter! Such was the force of the influence of the Appellant who confirmed his influence on page 25 of the records in these terms:
“I was on influential government functionaries during the last government”
Thus, by the use of his enormous influence, the Appellant caused the Certificate of Occupancy to be issued to him in total disregard of the existence of prior interest over the pieces of land in issue.
No doubt, it is good to have influence and have things done expeditiously. However positive influence is what the law will enhance that kind of influence which moves to right wrong, which speaks up for Justice and upholds the down trodden not negative influence which insists on its way no matter what the negative consequences are influence which seeks to undermined an official of Government, bad influence which strips on an official of his dignity because he insists on doing the right thing and upholding the tenets of due process must not be celebrated nor encouraged: nay: not by the Judiciary. Nay, the influence which this Court should uphold and support is that which draws governance nearer to the people, which makes available to children, qualitative and functional education and ensures that Government resources and authority are used to give human dignity to the people of Nigeria.
To award damages in the circumstance of this appeal would be to celebrate lawlessness. Why should the Appellant be compensated for his own wrongful act?
Not an iota of valid evidence did the Appellant adduce in support of his bogus claim of N10,000,000.00 for general damages nor of N5,000,000.00 for special damages for the building of a fence which was demolished. When asked
for the evidence of payment for the building of the fence the Appellant stated under oath that he had the receipt. When challenged to produce the receipt, his memory suddenly woke up from its deep slumber and he remembered that he had lost the receipts in far away London in the United Kingdom. He did not however report the fact of that lost to the Police in London nor did he do so back home in Nigeria.
The evidence of DW3 clearly shows how the Appellant harassed the land officer and caused the original file to disappear and under the cover of a temporary file, he got the two lands allocated to himself. He cannot be allowed to benefit from his own wrong. No. The dignity of the officials who stood for due process must be restored and upheld. No compensation shall be awarded to a man who seeks to install recklessness in the performance of official duty. Those who cannot follow due process and respect public policy have no right to be compensated for their illegal acts. The Appellant created the bitter pill, let him swallow it; perhaps it will clear his system and instill some respect for constituted authority in him. The Appellant deserves no compensation and I order none.
The Appellant has woefully failed to proof a miscarriage of justice occasioned to him by the decision of the learned trial court.
His Lordship rightly dismissed the claim of the Appellant as Plaintiff and upheld the revocation of the lands.
Nothing, i.e. no title in fact was passed to the Appellant by the Governor and therefore, there was nothing to be revoked but the worthless papers issued in the name of the Appellant by the Governor of Borno State. The issue of proper or improper revocation of the land is therefore mere legalese resulting from the wishful thoughts of the Appellant which is of no legal consequence.
The revocation of the certificate of occupancy was proper since the Governor in fact had nothing to grant to the Plaintiff in the said instrument. The Governor had to withdraw the instrument he issued out upon a misrepresentation. If the Appellant has suffered any wrong, he brought it upon himself.
This appeal is dismissed as wanting in merit.
A cost assessed at N30,000.00 is awarded to the Respondents and against the Appellants.
It is hereby so ordered.

UZO NDUKWE-ANYANWU, J.C.A.: I had the opportunity of reading in draft form, the judgment just delivered by my learned brother Dongbon-Mensern, JCA.
I agree with her reasoning and conclusion, however I will lend my voice, to the issues in question. The Surveyor General Borno State, DW3 in his evidence, stated that the land the subject matter of this appeal was not surveyed by him nor did he give any instructions to his staff to do so. Therefore it would be correct to hold that, the land in question has no beacon Numbers.
The law is that a plaintiff seeking a declaration of title to land has a duty to show clearly the area of land to which his claim relates, its exact boundaries and its extent as no court would be obliged to grant a declaration to on unidentified land. See Ogedengbe vs. Balogun (2007) 9 NWLR Pt 1039 page 380, Adelusola vs. Akinde (2004) 12 NWLR Pt 887 Page 295, Okochi vs. Aninkwoi (2003) 18 NWLR Pt 851 page 1.

One of the prerequisite of proving title to land is that the party claiming title must ascertain the size of the parcel of land he is claiming ie its size and the boundaries. Where he fails to do so, his claim will fail. Fagunwo vs. Adibi (2004) 17 NWLR Pt 903 page 544.
The Nigeria Police in this appeal have been on that piece of land the subject matter since 1965. The beacon numbers of the land were stated in proof of their possession.
Where there are two competing parties to a piece of land and they trace their common grantor to be the same person, the later in time will have to give way to the first in time. This is so because, the government of Borno state had already given the piece of land to the Nigeria Police since 1965. The Appellant was just granted a Certificate of Occupancy in 2001. See the case of Adeniran vs. Ashobi (2004) 2 NWLR Pt. 857 page 375.
The first in time always prevails in land matter, where there are two contending parties. This is in pursuit of the well known maxim “quo PRIOR est tempore, potior est jure” Auto vs. Ibe (2003) 13 NWLR Pt 837 PAGE 247. Ilona vs. Idokwo (2003) 11 NWLR Pt 830 page 53.
The Nigeria Police has been on this land since 1965 and a new contender with a Certificate of Occupancy dated 2001 has an uphill task to prove a better title. There are 5 ways of proving title to or ownership of land. These are by
(1) traditional evidence:
(2) production of documents of title duly authenticated in the sense that their due execution must be proved;
(3) by positive acts of ownership extending over a sufficient length of time;
(4) by acts of long possession and enjoyment of the land;
(5) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. Ayoola vs. Odofin (1984) 11 SC 120, Ewo vs. Ani (2004) 17 NSCQR 36, Nkwo vs. Iboe (1998) 7 NWLR (Pt. 503) 31 at 34, Adesanyo vs. Aderounmu (2000) 6 SC (Part 11) 18.
The law is that the establishment of one of the five ways is sufficient.

Production of a Certificate of Occupancy or document of title does not automatically entitle a party to a claim in declaration. Thus, before the production of document of title is admitted as sufficient proof of ownership the court must satisfy itself that:
(a) the document is genuine or valid;
(b) it has been duly executed, stamped and registered:
(c) the grantor had the authority and capacity to make the grant;
(d) that the grantor has in fact what he propose to grant; and
(e) that the grant has the effect claimed by the holder of the instrument. Romaine vs. Romaine (1992) 4 NWLR (Pt 238) 650 SC, Kyori vs. Alkali (2001) FWLR (Pt 60) 1481 SC, Dabo vs. Abdullahi (2005) 29
WRN 11 SC: (2005) 2.
It is in evidence that the Appellant breached all known procedure in his guest for the attainment of the Certificate of Occupancy. As of the time these Certificate of Occupancy was signed, the Nigeria Police was already in possession, since 1965. There were many acts of possession on the land. The Nigeria Police force had already built offices, quarters and even stables for their horses. The Police actually drove away officers of the Ministry of Land that came to survey the land. The appellant himself agreed that he saw a bungalow on the land. That should have put him on the enquiry. The Appellant knew of these but still bulldozed the government into granting him the Certificate of Occupancy. The Certificate of Occupancy granted to him by the Government of Borno State was issued in error.
The government couldn’t denote what it did not have i.e the grant of Certificate of Occupancy was null and void ab initio. The government had nothing to give the appellant and therefore strictly speaking, the appellant is not entitled to be accorded the privilege of being served with a notice. The appellant is not in lawful possession so service on him cannot be enforced Oduola vs. Nabhum (1981) NSCC vol. 12 page 180 at 194.
In questions of trespass, the appellant cannot righty maintain an action in trespass. Trespass is a civil wrong against possession. An action in trespass presupposes that either the plaintiff is the owner of the land in dispute or he is in possession of it. The proper person to institute an action for damages for trespass is the person in possession. Where, however, a person is not in possession, there is nothing in law and in fact for the adverse party to disturb by way of trespass.
Dim vs. A.G.F (2004) 12 NWLR Pt 888 page 459, Kareem vs. Ogunde (1972) 1 SC page 182.
Thus a plaintiff who fails to satisfy the court that he is in possession of the land in dispute cannot succeed in an action in trespass. Oluwole vs. Abubakor (2004) 10 NWLR Pt 882 page 549.
In the instant case the Appellant could not prove ownership so his action in trespass cannot succeed.
For these and the fuller reasons in the lead judgment I too must dismiss this appeal, it lacking in merit.
I abide by of the consequential orders in the lead judgment.

PHILOMENA M. EKPE, J.C.A.: I have had the privilege of reading in draft before now the lead Judgment delivered by my learned brother Dongban-Mensem and I agree that the appeal be dismissed as wanting in merit. It is no doubt untenable to formulate issues from two distinct cases without an appeal having been filed on each as per order 6 Rule 4 of the Court of Appeal Rules 2011.
I also agree that the Appellant has failed to prove a miscarriage of Justice occasioned to him by the decision of the learned trial court as no title has been passed to the Appellant by any authority. I abide by the consequential order as to cost as made.

Appearances

Kehinde Ogunwumiju Esq.,
A. BelgoreFor Appellant

AND

T.A. Dibal – Solicitor General (Ministry of Justice Borno State)
B. Adamu and
S.U. Mshelia Senior State CouncilFor Respondent