ALHAJI AHMADU ABBA & ANOR v. ZIGWAI Z. B. GAIYA (2016)

ALHAJI AHMADU ABBA & ANOR v. ZIGWAI Z. B. GAIYA

(2016)LCN/8310(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of March, 2016

CA/K/65/2009

RATIO

LAND LAW: TITLE TO LAND; METHODS OF PROVING TITLE TO LAND RECOGNIZED IN LAW

There are five (5) ways or methods of proving title to land recognized in law through settled judicial pronouncements by the superior Courts; which have been clearly stated in a plethora of decided cases to be:
(i) By traditional evidence.
(ii) By production of title documents, duly authenticated.
(iii) By acts of selling, leasing, renting out all or part of it, or farming on it or portion of it.
(iv) Acts of long possession and enjoyment of land.
(v) Proof of possession of connected or adjacent land in circumcisions rendering it probable that the owner of such land would in addition be the owner of the land in dispute, see Baba-Iya v. Sekile (2006) 3 NWLR (Pt. 965) P. 508 @ 528; Idundun v. Okumba (1976) 9-10 SC & 77 and Nkado v. Obiano (1997) 5 NWLR (Pt. 503) P. 31. per. IBRAHIM SHATA BDLIYA, J.C.A.

LAND LAW: TITLE TO LAND; REQUIREMENT FOR THE VALIDITY OF A CERTICATION OF OCCUPANCY

The law is trite, for a certificate to be valid it must be issued after the grant of a right of occupancy under Section 5(1) (a) or Section 6 (1)(a) and (b) or Section 34(1) of the Land Use Act. A certificate of occupancy must not be issued when there is in existence another one issued over same land.
In MADU v. MADU (2008) 6 NWLR (Pt. 1038) P. 296 @ 326, the Supreme Court held that for a certificate of occupancy, under the Land Use Act, to be valid, there must not be in existence, at the time the certificate was issued, a statutory or customary owner of the land in issue who was not divested of his legal interest to the land prior to the grant. However, this principle of law is only relevant in cases where a claimant has proved that he has a prior and un-extinguished title to the land so that the new right of occupancy cannot over-ride, extinguish or have priority over that existing right. In APOSTOLIC CHURCH v. OLAWOLEMI (1990) 10 SCNJ p. 69 @ 75, the Supreme Court also held that if the issuance of a certificate of occupancy was not in accordance with the Land Tenure Law, the certificate is defective and the holder has no basis for a valid claims. To be valid, there must not be in existence at the time the certificate was issued a customary owner who has not been divested of his title over the land. See also AZI VS. REG. TRUSTEES OF EVAN. CHURCH (1990) 6 NWLR (Pt. 196) P. 111 @ 121. The Supreme Court and the Court of Appeal have had, in a plethora of decided cases, held that a certificate of occupancy validly issued raises the presumption that the holder thereof is in exclusive possession and is entitled to hold the land to the exclusion of any other person, other than the Governor. In MADU v. MADU supra the Supreme Court held that a certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner thereof in exclusive possession of the land. A person who is granted right of occupancy and issued with a certificate of occupancy is entitled to hold the land to the exclusion of any other person unless and until the certificate is for good reasons, revoked by the authority that granted it or the grant is found to be invalid and could be set aside by a Court of law. See MADU v. MADU; GANKON v. UGOCHUKWU CHEMICAL IND. LTD; OSAZUWA v. OZO; OSHOGO v. ADEBAYO, EZEANAH v. ATTA; UCHE v. EKE; KAIGAMA v. NAMNAI. per. IBRAHIM SHATA BDLIYA, J.C.A.

LAND LAW: TITLE TO LAND; WHETHER A CERTIFICATE OF OCCUPANCY IS A CONCLUSIVE EVIDENCE OF ANY INTEREST OR VALID TITLE TO LAND
However, a certificate of occupancy issued under the Land Use Act is not conclusive evidence of any interest or valid title to the land in favour of the grantee. It is only a prima facie evidence of such right, interest or title without more, and may, in appropriate cases, be challenged and rendered invalid, null and void. Consequently where it is proved, that another person, other than the grantee of a certificate of occupancy had a better title to the land, the Court may set it aside on the ground that it is invalid, defective or spurious. See also the following decided cases by the Supreme Court and the Court of Appeal; DZUNGWE v. GBISHE (1985) 2 NWLR P.9; OGUNLEYE v. ONI; SAUDE v. ABDULLAHI; OLOHUNDE v. ADEYOTU AND LABABEDI v. LAGOS METAL IND. LTD (1990) 2 NWLR (Pt. 135) P. 745.
A certificate of occupancy or any other document of title is prima facie evidence of title, but will give way to a better title. A person in whose name a certificate of occupancy has been issued can only validly hold on to it if he can show that he legitimately acquired the land. He should be able to show that the certificate was issued in his favour after he had properly acquired the land. Thus, where it is proved that another right of occupancy resides in another person, and such right has not been extinguished, the certificate of occupancy is liable to be declared invalid. See also the following cases; ILONA v. IDAKWO; ESO v. ADEYEMI; AZI v. REG. TRUSTEES OF THE EVAN. CHURCH OF WEST AFRICA; AND REG. TRUSTEES APOSTOLIC CHURCH v. OLOWOLENI (1990) 2 NWLR (Pt. 155) P. 155. Though a validly issued certificate of occupancy raises the presumption of title in favour of the holder, where it is proved that such certificate of occupancy was issued at a time another right of occupancy was in existence and has not been revoked, such certificate of occupancy is invalid, null and of no legal effect whatsoever. See also OGUNLEYE v. ONI (1990) 2 NWLR (Pt. 135). per. IBRAHIM SHATA BDLIYA, J.C.A.

LAND LAW: TITLE TO LAND; THE POSITION OF THE LAW ON CUSTOMARY TITLE HOLDER OF LAND, AND HOW IT CAN BE PROVED

The position of the law on customary title holder of land, and how it can be proved has been settled by judicial pronouncement in a litany of decided cases, among which are; Oko v. Okenwa (2010) 3 NWLR (Pt. 1181) P. 406 @ 418, where this Court held that one of the five ways of establishing a claim for declaration of title to land is by traditional evidence. In that regard, it is not sufficient for the plaintiff to say that the land in dispute belonged exclusively to his family from time immemorial and stop there. He must show how the family got the land either from some other persons or authority in succession or that the family found it a virgin land and deforested it.
In Fayemi v. Awe (2009) 15 NWLR (Pt. 1164) P. 315 @ 340, this Court held that:
“For a traditional evidence to qualify as a reliable traditional testimony, the person who relies on it must plead the name or names of the founder of the title and those after him or them, the persons the land devolved to the last successors without having any gaps. In the instant case, a careful appraisal of the appellant’s case showed that the appellant did not sufficiently plead the name of the founder of the land in dispute.” per. IBRAHIM SHATA BDLIYA, J.C.A.

LAND LAW: TITLE TO LAND; THE IMPLICATION OF ANOTHER PERSON OTHER THAN THE GRANTEE OF A CERTIFICATE OF OCCUPANCY HAVING A BETTER TO THE LAND

Where it is proved, that another person, other than the grantee of a certificate of occupancy had a better title to the land, the Court may set it aside on the ground that it is invalid, defective or spurious. See also the following decided cases by the Supreme Court and the Court of Appeal; DSUNGWE v. GBISHE; OGUNLEYE v. ONI; SAUDE v. ABDULLAHI; OLOHUNDE v. ADEYOJU; AND LABABEDI v. LAGOS METAL IND. LTD (supra).
Though a validly issued certificate of occupancy raises the presumption of title in favour of the holder, where it is proved that such certificate of occupancy was in existence, and has not been revoked, such certificate of occupancy is invalid, and of no legal effect whatsoever. See Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) P. 53; Eso v. Adeyemi (1994) 4 NWLR (Pt. 340) P. 558; Aza v. Reg. Trustees of The Evan. Churches of West Africa (1991) 2 NWLR (Pt. 115) P. 113 and Reg. Trustees of Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) P. 514. Section 34(1) of the Land Use Act, provides thus:
“34(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under this Decree.”
A deemed grant comes into existence automatically by the operation of law, and the title holder of any land became vested with same as if it was actually granted under Section 5(1) of the Land Use Act, by the Governor.
See Savannah Bank Nig. Ltd v. Ajilo (1989) 1 NWLR (Pt. 97) P. 305; Olohanell v. Adeyogu (2000) 10 NWLR (Pt. 676) P. 562; Teniola v. Olohunkun (1999) 5 NWLR (Pt. 602) P. 280 and Adisa v. Oyiwola (2000) 10 NWLR (Pt. 674) P. 116. per. IBRAHIM SHATA BDLIYA, J.C.A.

JUSTICES:

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI AHMADU ABBA
2. MRS. JACOB GAMBO – Appellant(s)

AND

ZIGWAI Z. B. GAIYA – Respondent(s)

ALHAJI AHMADU ABBA & ANOR v. ZIGWAI Z. B. GAIYA

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kafanchan Division of the Kaduna State High Court (herein referred to as the lower Court) delivered on the 15th of October, 2008, in suit No. KDH/KAF/23/2005, wherein all the reliefs sought by Zigwai Z. B. Gaiya (the respondent) were granted, and the counter-claim of Alhaji Ahmadu Abba (the 1st appellant) was dismissed. Piqued and peeved by the decision of the lower Court, the appellants appealed to this Court vide Notice and grounds of appeal filed on 17th of October 2008, which was amended and deemed filed on the 24th of September, 2014 pursuant to an order granted on the 14/9/2009.

The facts or events leading to the institution of the suit at the lower Court by the respondent are simple and straightforward as assembled from the pleadings of the parties. The respondent (as plaintiff) commenced the action by writ of summons/statement of claim seeking for declaratory reliefs in respect of a parcel of land situate along Kagora Road, Kafanchan, Kaduna State, covered by statutory Right of Occupancy No. NC. 2178. The

respondent asserted that his late father was allocated the parcel of land by the Kaduna State government sometime in 1978. That he continued exercising acts of possession till his death. Meanwhile, one Mrs. Jacob Gambo (the 2nd appellant) was permitted to do farming on a portion of it.

The appellants, on the other hand, claimed that the land in disputed belonged to the family of the 2nd appellant under customary law in that their ancestors (forefathers) cleared/deforested the land and have since been in physical possession and farming on it. That in 1972, the Kaduna State Government acquired the land subject to payment of compensation which was not effected. Consequently, they maintained their customary ownership of the land which was later sold to the 1st appellant in 2003 for a consideration of N500,000.00. He commenced developing the land which was objected to by the respondent culminating in the institution of the suit at the lower Court.

The appellant’s amended brief of argument dated 24th of June 2015 was deemed filed on 14/10/2015 by order of Court. The respondent’s brief of argument dated 25th of May, 2015 was deemed filed on the 1/2/2016.

The appeal was argued on the 1st of February 2016, whereat Habeeb, Esq. who settled the appellants’ brief of argument adopted his brief of argument, urged the Court to allow the appeal and set aside the judgment of the lower Court. For the respondent, J.B. Amos, Esq. who settled their brief of argument adopted same and urged the Court to dismiss the appeal for lacking in merit and to affirm the judgment of the lower Court.

On page 6 of the appellants’ brief of argument, a sole issue has been formulated from the grounds of appeal. The respondent also distilled a lone issue from the grounds of appeal on page 11 in his brief of argument, which is not dissimilar to the issue contained in the appellants’ brief of argument. The issue to be resolved which would ultimately determine the appeal is therefore, thus:
“WHETHER THE LOWER COURT WAS RIGHT IN GRANTING THE RELIEFS SOUGHT BY THE RESPONDENT HAVING REGARD TO THE EVIDENCE ADDUCED BY THE PARTIES BEFORE IT?”

Before proceeding to consider the argument canvassed by both learned counsel in their respective briefs of argument, I consider it appropriate to state at this juncture that the respondent’s

counsel abandoned the notice of preliminary objection filed on the 12/6/2015, which was argued on pages 3-11 of the brief of argument. Having abandoned the preliminary objection, same was struck out together with the notice thereof.

RESOLUTION OF ISSUE:
On the issue calling for determination in this appeal, Habeeb, Esq. of learned counsel referred to the averments contained in paragraphs 1 and 3 of the Amended statement of claim and contended that where the respondent as plaintiff claimed that the parcel of land in dispute was allocated to his late father cannot maintain an action in law. For respondent to be able to maintain any action in his name, he must state in what capacity he is pursuing the action. Counsel cited Order 4 Rule 2 of the Kaduna State High Court (Civil Procedure) Rule, 2007, to buttress his contention supra. This being the case, it has been argued, means that the respondent instituted the action at the lower Court in his personal capacity since there are no averments in the Amended statement of claim to the effect that he had inherited the parcel of land upon the demise of his father.

Learned counsel further submitted that

parties are bound by their pleadings, therefore, evidence adduced by a party must be predicated on the pleadings otherwise such evidence would not be admissible in law. The case of Zenith Bank Plc v. Ekerea-wem (2012) 4 NWLR (Pt. 1290) p.207 @ 230 cited to buttress the submission supra. It has also been contended that since there have been no pleaded facts that respondent inherited the land in dispute, any evidence adduced on same would go to no issue, therefore, the findings and decision of the lower Court that the respondent has been vested with the title to the disputed land, cannot be correct in law.

On the relief sought by the respondent that he be declared the owner of the disputed land, counsel submitted that, with the coming into force of the Land Use Act, in 1978, ownership of land has been abolished. That a person can only be given right of occupancy over land, while the Governor of a State holds the land on behalf of the people, and has been empowered to grant right of occupancy to deserving applicants.

Counsel referred to the evidence of plant Div 3, and submitted that, had the learned trial Judge of the lower Court properly evaluated the

evidence of these witnesses, his decision would have been different, in that he would have given judgment in favour of the appellants because the land in dispute was owned by the ancestors of the 2nd appellant before the coming into force of the Land Use Act. Counsel further submitted that the law is trite, any person who owned a parcel of land under customary law would still be the title holder of such land, unless same has been revoked in accordance with the provisions of Section 28 of the Land Use Act. The case of Adole v. Gwar (2008) 11 NWLR (Pt. 1099) p. 562 @ 607 cited to buttress the submissions supra.

On the Certificate of Occupancy alleged to have been granted to the late father of the respondent, counsel argued that in view of the customary title of the ancestors or fore-fathers of the 2nd appellant the Certificate of Occupancy granted to the respondent’s father cannot be valid, in that because where there is in existence title over land in another person, title over same land can be granted or acquired by another. The case of Olohunde v. Adeyoju (2010) 10 NWLR (Pt. 676) P.582 @ 585 cited to reinforce the submission supra.

In conclusion,

Learned Counsel submitted that, had the learned trial Judge of the lower Court evaluated the evidence properly, he would not have granted title to the respondent over the parcel of land in question, rather it would have been granted to the appellants. The Court has been urged to re-evaluate the evidence on the printed record of appeal, and arrived at a just decision by reversing the decision of the lower Court, and in its stead, enter judgment in favour of the 1st appellant having purchased it from the family of the 2nd appellant who were the original customary title Holders. The Court has been urged to resolve the sole issue in favour of the appellant.

For the respondents, J. B. Amos, Esq. of learned counsel submitted that in civil cases, he who asserts has the burden of proof what had been asserted. That by the provisions of Section 136 of the Evidence Act, the appellants must adduced credible evidence to substantiate the averments contained in their amended statement of defence. The case of Eyo v. Onuaha (2011) 211 FWLR (Pt. 574) p.23 cited in aid. Counsel went on to contend that by the evidence adduced at the lower Court, the respondents’ late father

Â was allocated the parcel of land in dispute. That he was in possession of same till his death. Thereafter, the land had been in the respondent’s possession, until the trespass into it by the appellants’ which necessitated the institution of the action at the lower Court. That the evidence adduced by the respondent and his witnesses have not been controverted by the appellants.

This being the case, it was submitted, the lower Court was justified when it entered judgment in favour of the respondent whereby title to the parcel of land was given to him. That where the evidence of a party is cogent, credible and not controverted, a Court of law can properly rely on same in taking a decision, just as the lower Court did when it delivered its judgment in favour of the respondent. The case of Nwaogu v. Ajuma (2013) All FWLR (Pt. 693) P.1913 and Zimjaja v. River State (2013) All FWLR (Pt. 665) p. 203 were cited to buttress the submissions supra.

Learned counsel further submitted that the appellants failed to controvert the evidence adduced by the respondent at the trial Court, they cannot do that on appeal. The case of Mubo v. Alabi (2008) All FWLR (Pt. 404)

p. 1477 @ 1510 cited to buttress the contention supra. Counsel argued that with the issuance of the certificate of occupancy to the respondent, by the Government, it remains valid, and the lower Court having relied on same in its judgment, this Court cannot do otherwise, but to uphold that decision of the lower Court. Counsel did urge that the sole issue be resolved against the appellant, consequently dismiss the appeal and affirm the judgment of the lower Court.

The respondent’s (as plaintiff’s) case is that his late father was allocated the property in dispute by the Government of Kaduna State as evidenced by issuance of certification of occupancy admitted as Exhibit A sometime in 1978 and his late Father exercised acts of ownership over same which said acts continued after the death of his father.

The respondent’s Father allowed late Mrs. Jacob Gambo (the 2nd Appellant) to farm on the land for many years before she died.

The case of the appellants, (as defendant) is that the family of the 2nd Appellant is the customary owner of the disputed land as their fore bearers deforested the land and they have been in physical possession using the

portion of the property for farming.

It is also their case that sometime in 1972, the Kaduna State Government indicated interest in compulsorily acquiring the land contingent upon payment of compensation which was not effected and consequently, they had maintained their customary ownership of the property in dispute which was sold to the 1st Appellant in the year 2003 for a consideration of N500,000.

The 1st Appellant upon purchase of the disputed property began to develop same which led to a challenge by the Respondent culminating in the institution of the suit at the lower Court leading to the instant appeal.

After the filing of pleadings, issues joined, and the taking of evidence from both parties, the learned trial Judge of the lower Court in its judgment on pages 84-85 of the printed record of appeal held that:
“Having realized that a certificate of occupancy is validly in place, the right approach by the defendant should have been to attack such validity and allege non-payment of compensation and advance other reasons which Court have duly considered for or against. In the absence of the above, the certificate of occupancy is validly

in place and it covered both the uncompleted building and the piece of land in dispute. Court cannot help them here at all under the circumstances.
In the absence of a prayer to set aside an existing statutory certificate of occupancy, the only other authority and indeed the sole authority that can revoke a certificate of occupancy is the Governor of the State. See Section 28 Land Use Act 1978. The curtain is drawn in this judgment.
The plaintiff’s case succeeds and judgment is entered in his favour and against the defendant as follows;
1. The plaintiff is declared the rightful owner of the plot of the land in dispute as the heir of late Mr. Zakariya B. Gaiya, who secured ownership of same by Government allocation covered by a Certificate of Occupancy.
2. An order is granted for a perpetual injunction restraining the defendant whether by himself, agents, servants, privies, assigns or any person claiming through or from the defendant, from committing further acts of trespass into the plot the plaintiff’s of land or from interfering in anyway with the plaintiff’s use and enjoyment of the said plot and building thereon.”

Was the learned

Judge of the lower Court right when he arrived at the decision supra? There are five (5) ways or methods of proving title to land recognized in law through settled judicial pronouncements by the superior Courts; which have been clearly stated in a plethora of decided cases to be:
(i) By traditional evidence.
(ii) By production of title documents, duly authenticated.
(iii) By acts of selling, leasing, renting out all or part of it, or farming on it or portion of it.
(iv) Acts of long possession and enjoyment of land.
(v) Proof of possession of connected or adjacent land in circumcisions rendering it probable that the owner of such land would in addition be the owner of the land in dispute, see Baba-Iya v. Sekile (2006) 3 NWLR (Pt. 965) P. 508 @ 528; Idundun v. Okumba (1976) 9-10 SC & 77 and Nkado v. Obiano (1997) 5 NWLR (Pt. 503) P. 31.

The averments in the pleadings on which the case of the respondent (as plaintiff) was predicated are those contained in paragraphs 3 to 7 of the Amended Statement of claim which are thus:
“3. The plaintiff avers that the disputed plot of land lying and situate along Kagoro Road Kafanchan has

been owned by the Late Z. B. Gaiya and his family since over 20 years ago by virtue of government allocation and same is covered by a Statutory Certificate of Occupancy. The plaintiff pleads the said C of O.
3a. The plaintiff avers that he was one of several beneficiaries of the said allocation of adjacent to the plot in dispute. The plaintiff pleads the said Lay-Out plan which same is with the Kaduna State Zonal Land Registry Kafanchan.
4. The plaintiff further aver that he has a building of a bungalow with complete walls and only roofing left to be done on the plot of land in dispute since over twenty year till date.
5. The plaintiff aver that they have been in further possession of the plot of land in dispute since allocation and issuance of certificate of occupancy to his late father of the plot of land in dispute, by allowing late Mrs. Gambo, the mother of late Mr. Jacob Gambo husband of the 2nd Defendant and her family to cultivate same to earn some crops for feeding as requested by the late Mrs. Gambo and as granted by the late Plaintiff’s father who instructed his family to allow same until full utilization of the plot.
6.

The Plaintiff avers that the 2nd Defendants have been in possession of the plot in dispute only at the express permission of the Plaintiffs pending when they will complete their building.
7. The Plaintiff avers that he has been paying the ground rents on the said plot of land to the Ministry of Lands of Kaduna State till date.

The Appellants (as defendants) in their Amended statement of defence averred in paragraphs 3(a), (b), (c) and (d) as follows:
(a) The defendant avers that sometime in 1972, the Kaduna State Govt., approached the original owners of the land in the area, where the disputed land is situate including the parents of Mr. Jacob Gambo and requested to acquire their lands for the purpose of creating a Government Reservation Area, (G.R.A.) subject to the payment of compensation to the various owners of land in that Area.
(b) That it was agreed that the owners should continue to cultivate their various portions of land in dispute, since no compensation has been paid to them till date.
(c) The defendant says that government later abandoned the plan to create a G.R.A. in the area and most of the portion of land in dispute,

and they continued to farm the place, without any interference and/or disturbance from any person whatsoever.

The respondents (as plaintiff) called six (6) witnesses who testified in support of his claim. Pw1 on page 2 of the record of appeal; Pw2 on pages 5-8, Pw3 on pages 8-16, Pw4 on pages 16-19, Pw5 on Pages 19-22 and Pw6 on pages 22 to 29 of the record of appeal. The gist of their evidence is that the respondent’s father applied for a plot of land in Kafanchan which was granted to him by the Kaduna State government in 1967. He was issued with a certificate of occupancy which was admitted in evidence as Exhibit ‘A’. That his father was in possession of the land till he died in 2000 or thereabout. That after the death of his father, he inherited the parcel of land, but one of their relations, Mrs. Jacob Gambo was permitted to farm on the land. The land was sold to the 1st appellant by the 2nd appellant. He instituted an action before the lower Court claiming title to the parcel of land. That judgment was in his favour.

On the other hand, the appellants (as defendants) asserted that the land in dispute was a family land owned by the family of Mrs.

Gambo (2nd appellant). That the family sold part of the land to the 1st appellant. That the 1st appellant has been in possession of the land since the time it was sold to him.

On the pleadings and the evidence adduced by the parties, the respondent’s claim of title to the land in dispute is predicated on statutory Right of Occupancy, exhibit A; whereas the case of the appellant (as defendants) is predicated on customary title by the family of Mrs. Jacob Gambo the 2nd appellant who claimed title to the land through her forefathers or ancestors.

Taking the case of the respondent first, by relying on exhibit ‘A’, the Statutory Right of Occupancy, has he proved his title to the land as required in law. The law is trite, for a certificate to be valid it must be issued after the grant of a right of occupancy under Section 5(1) (a) or Section 6 (1)(a) and (b) or Section 34(1) of the Land Use Act. A certificate of occupancy must not be issued when there is in existence another one issued over same land.
In MADU v. MADU (2008) 6 NWLR (Pt. 1038) P. 296 @ 326, the Supreme Court held that for a certificate of occupancy, under the Land Use Act, to be valid,

there must not be in existence, at the time the certificate was issued, a statutory or customary owner of the land in issue who was not divested of his legal interest to the land prior to the grant. However, this principle of law is only relevant in cases where a claimant has proved that he has a prior and un-extinguished title to the land so that the new right of occupancy cannot over-ride, extinguish or have priority over that existing right. In APOSTOLIC CHURCH v. OLAWOLEMI (1990) 10 SCNJ p. 69 @ 75, the Supreme Court also held that if the issuance of a certificate of occupancy was not in accordance with the Land Tenure Law, the certificate is defective and the holder has no basis for a valid claims. To be valid, there must not be in existence at the time the certificate was issued a customary owner who has not been divested of his title over the land. See also AZI VS. REG. TRUSTEES OF EVAN. CHURCH (1990) 6 NWLR (Pt. 196) P. 111 @ 121.

The Supreme Court and the Court of Appeal have had, in a plethora of decided cases, held that a certificate of occupancy validly issued raises the presumption that the holder thereof is in exclusive possession and is entitled

to hold the land to the exclusion of any other person, other than the Governor. In MADU v. MADU supra the Supreme Court held that a certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner thereof in exclusive possession of the land. A person who is granted right of occupancy and issued with a certificate of occupancy is entitled to hold the land to the exclusion of any other person unless and until the certificate is for good reasons, revoked by the authority that granted it or the grant is found to be invalid and could be set aside by a Court of law. See MADU v. MADU; GANKON v. UGOCHUKWU CHEMICAL IND. LTD; OSAZUWA v. OZO; OSHOGO v. ADEBAYO, EZEANAH v. ATTA; UCHE v. EKE; KAIGAMA v. NAMNAI.
However, a certificate of occupancy issued under the Land Use Act is not conclusive evidence of any interest or valid title to the land in favour of the grantee. It is only a prima facie evidence of such right, interest or title without more, and may, in appropriate cases, be challenged and rendered invalid, null and void. Consequently where it is proved, that another person, other than the grantee of a

certificate of occupancy had a better title to the land, the Court may set it aside on the ground that it is invalid, defective or spurious. See also the following decided cases by the Supreme Court and the Court of Appeal; DZUNGWE v. GBISHE (1985) 2 NWLR P.9; OGUNLEYE v. ONI; SAUDE v. ABDULLAHI; OLOHUNDE v. ADEYOTU AND LABABEDI v. LAGOS METAL IND. LTD (1990) 2 NWLR (Pt. 135) P. 745.
A certificate of occupancy or any other document of title is prima facie evidence of title, but will give way to a better title. A person in whose name a certificate of occupancy has been issued can only validly hold on to it if he can show that he legitimately acquired the land. He should be able to show that the certificate was issued in his favour after he had properly acquired the land. Thus, where it is proved that another right of occupancy resides in another person, and such right has not been extinguished, the certificate of occupancy is liable to be declared invalid. See also the following cases; ILONA v. IDAKWO; ESO v. ADEYEMI; AZI v. REG. TRUSTEES OF THE EVAN. CHURCH OF WEST AFRICA; AND REG. TRUSTEES APOSTOLIC CHURCH v. OLOWOLENI (1990) 2 NWLR (Pt. 155) P. 155.

Though a validly issued certificate of occupancy raises the presumption of title in favour of the holder, where it is proved that such certificate of occupancy was issued at a time another right of occupancy was in existence and has not been revoked, such certificate of occupancy is invalid, null and of no legal effect whatsoever. See also OGUNLEYE v. ONI (1990) 2 NWLR (Pt. 135).

At the time the certificate of occupancy Exhibit ‘A’ was issued to the respondent, was there any title over same parcel of land vested in any other person(s), statutorily or customary? The appellants asserted that the land in dispute was owned by the family of the 2nd appellant, Mrs. Jacob Gambo, who inherited it from their forefathers (ancestors). In short, the family of Mrs. Jacob Gambo were the customary title holders of the disputed land; who sold the land to the 1st appellant. The position of the law on customary title holder of land, and how it can be proved has been settled by judicial pronouncement in a litany of decided cases, among which are; Oko v. Okenwa (2010) 3 NWLR (Pt. 1181) P. 406 @ 418, where this Court held that one of the five ways of establishing a claim

for declaration of title to land is by traditional evidence. In that regard, it is not sufficient for the plaintiff to say that the land in dispute belonged exclusively to his family from time immemorial and stop there. He must show how the family got the land either from some other persons or authority in succession or that the family found it a virgin land and deforested it.
In Fayemi v. Awe (2009) 15 NWLR (Pt. 1164) P. 315 @ 340, this Court held that:
“For a traditional evidence to qualify as a reliable traditional testimony, the person who relies on it must plead the name or names of the founder of the title and those after him or them, the persons the land devolved to the last successors without having any gaps. In the instant case, a careful appraisal of the appellant’s case showed that the appellant did not sufficiently plead the name of the founder of the land in dispute.”

On the claim of customary title to the land in dispute, DW1, Mr. S. K. Kajang testified thus as recorded on page 37 of the record of appeal:
“I live at Aduwan 11 Kafanchan. I am a traditional ruler as district head of Adwan. I am 60 years old. I know the defendants

here. I don’t know the plaintiff. I am in Court to testify at the piece of land at Adwan 1 Kafanchan. This land belong to first defendant now. That piece of land was given by our grandfather Aliyu to Mrs. Gambo Jenkin (not the 2nd defendant here) Aliyu has since died. Mrs. Jenkin Gambo is late too. Mrs. Jenkin Gambo popularly called just Mrs. Gambo. Mrs. Gambo then became its owner. Aliyu gave Mrs. Gambo the land in the 1950s. Mrs. Jenkin is a niece to me. We were cultivating that land since till I left for the army in 1967. We have been cultivating it up to 2003. In when I was still in the army, my elder brother Anthony Achi wrote me a letter that government has acquired our land. I then came down to Kafanchan to meet the then lands officer (P.w.6) and I asked him where the government acquired the land and he told me from Kagoro down to Adwan 4, where the NTA Kafanchan is presently situated. That they acquire it for G.R.A. From Kagoro road to the Railway station was not acquired by Government. The land in dispute is to the East of Kagoro. That portion was not acquired by government, so we continued farming on it. In 2003, one Inspector. Jacob Gambo, son of

Jenkin Gambo (Mrs. Gambo) told me that he wanted to sell the land. I asked him to find out whether the place had been given to somebody.
He came back to tell me nobody had been given it. So I told him to sell it, which he did at the range of N5,000,000.00 to 1st defendant. I also signed the written agreement as the District Head, on 27/4/2003. The original agreement is with 1st defendant. 2nd defendant’s full names are Mrs. Rifkatu Jacob Gambo. She is a wife to Jacob Gambo, the late Inspector. 2nd defendant is just a daughter in-law to Mrs. Jenkin Gambo.”

Dw3, C. B. Kokwain, of the Zonal Lands Office, Kafanchan testified on the disputed land which have been recorded on page 49-50 of the printed record of appeal. He said:
“I am a surveyor with the Zonal Lands Office Kafanchan I have come across a file in the office bearing the name of the plaintiff in this case. I also know the defendants. I came to testify in respect of a plot of land situate near New World Hotel, Kafanchan. This plot is a lay out in our G.R.A. on Kafanchan sheet 8 and 13 township sheet. From my records the area was planned as a Government Reservation Area. It was acquired by the

Government of Kaduna State. All the plot owners were compensated except the one in dispute and that of one Musa Marsa. Therefore, the Kaduna State Government did not allocate these two plots to any applicant. P.w.6 Musa Marsa was the then Lands Officer Jema’a Local Government. He went through our intelligent sheet and discovered that his and the one in dispute were vacant. He then applied and sent a surveyor who went, surveyed and sketched a plan over for him he (Musa) then passed his application through the then Provincial Secretary and it was recommended.
It was later approved. Musa then met the original owners of the land and paid them compensation from his pocket.
In respect of the land in dispute, Z. B. Gaiya then the Vice Principal, Rimi college Kaduna also applied like Musa and recommendation was given and approve, subject to payment of compensation to the owners. To the best of my knowledge that compensation was not paid to the land owners of the disputed land. All these knowledge I have stated above over the issue emanates from the records in my office. If compensation is not so paid the land owners have the right to continue cultivating

their land and possibly dispose of same as they wish. That is all.”

There are two 2 types of rights of occupancy that could be granted to a person who had been granted a right of occupancy over a land. The first one is a statutory right of occupancy in respect of lands in an urban area, and secondly, a customary right of occupancy granted by a Local Government in respect of land not in an urban area.
Statutory rights of occupancy are of two (2) types. The Supreme Court in the case of ADOLE v. GWAR held that under the Land Use Act, two types of statutory rights of occupancy exist, which are:
“(i) Statutory right of occupancy granted by the Governor pursuant to Section 5 (1)(6) of the Act, and
(ii) Statutory right of occupancy deemed granted by the Governor pursuant to Section 34(2) of the Act.”
A deemed grant comes into existence automatically by the operation of law and the grantee acquires a vested right just as an actual grantee of a right of occupancy.
See also the following cases: SAVANNAH BANK (NIG) LTD v. AJILO; OLOHUNDE v. ADEYOJU; TENIOLA v. OLOHUNKUN; C.S.S. BOOKSHIPS LTD v. R.T.M.C.R.S.; OGUNLEYE v. ONI; ADISA v.

OYINWOLA; ILONA v. IDAKWO.
The evidence of DW1 and DW3 have proved that the family of Mrs. Rifkatu Jacob Gambo were title holder of the disputed land before the Government of Kaduna State purportedly acquired same and allocated it to the respondent’s father. By the provisions of Section 34(1) of the Land Use Act, 1978, a Customary title holder of land, is deemed to have been granted right of occupancy over such land, and another person cannot be granted title over same parcel of land.

effect whatsoever. See Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) P. 53; Eso v. Adeyemi (1994) 4 NWLR (Pt. 340) P. 558; Aza v. Reg. Trustees of The Evan. Churches of West Africa (1991) 2 NWLR (Pt. 115) P. 113 and Reg. Trustees of Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) P. 514.

Section 34(1) of the Land Use Act, provides thus:
“34(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under this Decree.”
A deemed grant comes into existence automatically by the operation of law, and the title holder of any land became vested with same as if it was actually granted under Section 5(1) of the Land Use Act, by the Governor.
See Savannah Bank Nig. Ltd v. Ajilo (1989) 1 NWLR (Pt. 97) P. 305; Olohanell v. Adeyogu (2000) 10 NWLR (Pt. 676) P. 562; Teniola v.

Olohunkun (1999) 5 NWLR (Pt. 602) P. 280 and Adisa v. Oyiwola (2000) 10 NWLR (Pt. 674) P. 116.

The respondent relied on Exhibit ‘A’, the Right of occupancy issued and granted to him by the Kaduna State Government in 1967 or thereabout. Agreed, a certificate of occupancy issued under the Land Use Act is not conclusive evidence of any interest or valid title to the land in favour of the grantee. It is only a prima facie evidence of such right, interest or title without more, and may, in appropriate cases, be challenged and rendered invalid, null and void. Consequently where it is proved, that another person, other than the grantee of a certificate of occupancy had a better title to the land, the Court may set it aside on the ground that it is invalid, defective or spurious. See also the following decided cases by the Supreme Court and the Court of Appeal; DZUNGWE v. GBISHE; OGUNLEYE v. ONI; SAUDE v. ABDULLAHI; OLOHUNDE v. ADEYOJU AND LABABEDI v. LAGOS METAL IND. LTD.

On the other hand, the 1st appellant purchased the parcel of land in dispute though the family of the 2nd appellant who relied on customary title to the land. The evidence of Dw1 on the

customary title of the family of the 2nd appellant has not been controverted by the respondent. Dw3 a staff of the Lands Department testified that though there was move to acquire the area where the land in dispute is situate, it was incomplete in that the Government failed to pay compensation. It is to be noted that the respondent as plaintiff at the lower Court did not adduced evidence to support his assertion that the Kaduna State government did acquire, or secure the land in accordance with the rules governing such an exercise. No Gazette or Government White Paper or any other document was tendered in evidence to reinforce the acquisition of the land.

Though there is a certificate of occupancy raising the presumption of title in favour of the holder, it has been proved that such certificate of occupancy was issued at a time another a right of occupancy was in existence which has not been revoked, such certificate of occupancy is invalid, null and of no legal effect whatsoever. See Ilona v. Idokwo (2003) 1 NWLR (Pt. 830) P. 53; Esu v. Adeyemi (1994) 4 NWLR (Pt. 340) P. 558 and Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) P. 111.
The certificate of

occupancy, Exhibit ‘A’ issued to the respondent, having been issued at a time the family of the 2nd appellant were the lawful Customary title holder, which was in existence having not be revoked in accordance with the provisions of the law i.e. S. 28 of the Land Use Act, is void ab initio, requiring no order of Court to be set aside. For as pointed out in the case of Skenconsult (Nig.) Ltd v. Ukey (1981) 1 SC P. 1 @ 9:
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

The learned trial Judge of the lower Court was not right when he held on page 85 of the record of appeal that:
“In the absence of a prayer to set aside the existing statutory certificate of occupancy, the only other authority and indeed the sole authority that can revoke a certificate of occupancy is the

Governor of the State. See Section 28 of the Land Use Act 1978. The curtain is drawn in this judgment. The plaintiff’s case succeeds and judgment is entered in his favour and against the Defendant as follows…”

Consequently, the sole issue formulated in the brief of argument of the parties, is hereby resolved in favour of the appellants, against the respondent. In the result the appeal succeeds and the judgment of the lower Court delivered on the 15th of October, 2008, in suit No. KDH/KAF/23/05 is hereby set aside. The appellants are entitled to costs assessed at N30,000.00. Same is awarded to them.

UWANI MUSA ABBA AJI, J.C.A.: I have had the opportunity of reading through the judgment of my learned brother, Ibrahim S. Bdliya, JCA just delivered.

I agree with the reasoning and conclusions arrived at by my learned brother that the appeal has merit and ought to be allowed. It is for the reasons therein stated in the judgment that I too find merit in the appeal. It is also allowed by me.

Consequently the judgment of the lower Court delivered on the 15th of October, 2008 in suit No. KDH/KAF/23/2015 is hereby set

aside.
I abide by the orders therein including orders as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read the lead judgment in draft of my learned brother Ibrahim Shata Bdliya, JCA, where the facts giving rise to this appeal have been amply stated.
I must however respectfully disagree with the lead judgment of my learned brother.

The Respondent’s claim to title is through a Government allocation by Certificate of Occupancy issued in 1978 to the Respondent’s father by the Kaduna State Government. The evidence of PW6, Musa Ahmadu Marsa, a former Principal Lands Officer with Ministry of Lands, Kaduna State, now the District Head of Marsa, is that the land in dispute is from an approved layout by the Government, which land the Government had acquired. By the evidence of this witness, both the plot in dispute and his own, were part of the same plot but later split in two, as the plot was so large. Certificates of Occupancy were issued to them both. He, however, sold his own land to New World Hotel.

In his official capacity as the Lands Officer up to his retirement in 1998 there was no official

complaint on the disputed land or any of the other plots in the layout with respect to payment of compensation by the Government.

The evidence of this witness, on the facts above were not challenged.

Buttressing the evidence of this witness is the evidence of PW5, Katuka B. Gwani, Zonal Lands Officer, who confirmed ownership of the land in the Respondent’s father through his application in 1974, culminating in the issue of the Certificate of Occupancy. The files, he said, are in his custody as the Zonal Lands Officer. He confirmed that there has been no complaint with regard to this land. The facts also disclose evidence of possession of the land by the Respondent’s predecessor in title who erected a structure on the land and also by farming of the land by Pw1, who testifed that the mother of the predecessor in title of the Appellant was permitted to farm on the land following her (PW1) entreaties to the Respondent’s father, she being a widow.

The claim of the Appellants, I note, is not to the entirety of the land claimed by the Respondent but to the portion beside the structure erected by the Respondent’s father. It was beside this structure

that he erected a fence, in spite of challenges by PW1 and PW3, the Provost of the College of Education, Gidan Waya, who both were aware of the title of the Respondent.

The contention of the Appellants is however that the land devolved to the Appellant’s predecessor in title by traditional ownership of the land.

As testified by DW1, Sylvester Kajang, the District Head of Adwan, the land was given by their grandfather Aliyu to Mrs. Gambo Jenkin, the Appellant’s predecessor in title in the 1950’s. The land, he said was later acquired by the Government for a “G.R.A.” (Government Reservation Area). He said he signed the Sale Agreement to the Appellant in 2003. Under cross-examination, he contended that the Government cannot acquire land without the consent of the people. He agreed that the community had not taken the government to Court.

Dw3, Christopher Kokwain, a Surveyor with the Zonal Lands office Kafanchan agreed that the plot is a Layout in G.R.A. Kafanchan and was acquired by the Kaduna State Government. Also that all the land owners were compensated except the portion in dispute. He stated that PW6 paid compensation on his plot. Under Cross

examination, the witness admitted, inter alia, that if there was notification of payment of compensation to the land owner, he would not know. He would be surprised to know that the Respondent’s plot including the portion in dispute was formerly part of the plot of Pw 6.

The law, as stated firmly in the Lead Judgment is that possession of a Certificate of Occupancy is not sacrosanct and that for a Certificate of Occupancy to be valid, there must not be in existence at the time the certificate was issued, a statutory or customary owner of the land who was not divested of his interest. See Madu v. Madu (2008) 6 NWLR (Pt. 1038) p. 296 at 396.

As also held by the Supreme Court in Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) page 562 at 587 para. C-D per Iguh, JSC, a Certificate of Occupancy, if properly issued by a competent authority, raises a presumption that the holder is the owner in exclusive possession of the land. The evidence of such right may, in appropriate cases, be effectively challenged and rendered invalid, null and void. See also Mani v. Shanono (2007) All FWLR (Pt. 345) page 303 at 324 para C-D per Ba’aba, JCA.

The questions that

arise in this case are:
1. What is the evidence of traditional ownership of the land sufficient to challenge the grant of the Certificate of Occupancy.
2. Is there cogent evidence before the Court to challenge the acquisition of the land by the family of the Appellant’s predecessor in title?

With respect to the 1st question, the law is that where evidence of tradition is relied upon in proof of ownership of land, the Plaintiff, in order to succeed, must plead and establish the following facts:
(a) Who founded the land;
(b) How he founded it; and
(c) The particulars of the intervening owners through whom he claims, from the founder, down to him, otherwise the claim will fail. There should be no missing link.
SeeAnyafulu v. Meka (2014) 7 NWLR (Pt. 1406) page 396 at 411 para. D-F per Aka’ahs, JSC; Awodi v. Ajagbe (2015) 3 NWLR (Pt. 1447) page 578 at 613 Para B-E per Ngwuta, JSC.
A Court, it has been held, has no jurisdiction to supply any missing link in a genealogical tree from progenitors to a claimant. See Awodi v. Ajagbe supra at 604 para. per Fabiyi, JSC.

In the instant case, ‘save’ the evidence of Dw1 that the land

in dispute was given by their grandfather Aliyu to the Appellant’s predecessor in title Mrs. Gambo Jenkin ‘in the 1950’s’, there is no evidence from the family of the Appellant’s vendor, of who founded the land and how he founded it.

To disprove a Certificate of Occupancy issued by the Government, the evidence of traditional ownership must be cogent and compelling, I hold. The evidence of traditional ownership, I however hold, is sadly deficient.

Furthermore, with respect to the 2nd question, for the issue of non-compensation of land to annul a Certificate of Occupancy, the evidence of the challenger must be cogent. In the instant case, there is no evidence of letters written or any evidence of effective challenge of the Respondent’s grant.
Indeed, it is curious as to how the land of PW6, was, by the evidence of DW3, compensated for, while compensation was not paid for that of the Respondent, which land was originally part of the plot of Pw6.

I also note, as held by the trial Judge that there is no relief from the Appellant asking the Court to set side the said Certificate of Occupancy.

The Counter Claim of the Appellant at the trial

Court was for the following:-
(i) Declaration that the Defendant had lawfully acquired his right, interest and title over a piece of land known, situate and adjacent to New World Hotel, Kafanchan, and directly opposite flake filling station Kafanchan, measuring 100ft. & 185 feet on the Kafanchan, Kagoro Road by virtue of an agreement dated 26th April, 2003.
(ii) The Defendant is entitled to the Statutory Right of Occupancy over all that land measuring 100ft & 185 feet situate Beside New World Hotel, Kafanchan Kagoro Road, Kafanchan.
(iii) The sum of N200,000.00 as general damages for all the delays, loss of time, and Business opportunities caused the Defendant by the Plaintiffs action.
(iv) An order of perpetual injunction, restraining the Plaintiff by himself or his Heirs, assigns, privies, agent, servants, successors in title and or Representative-in-interest from trespassing into and/or tampering with the land in any manner whatsoever.

The Trial Judge at page 85 the Record held:-
“There is no relief from the Defendant asking Court to set aside the said certificate of occupancy and Court, not being a Father Christmas

cannot, on its volition, grant it without such request. Having realized that a Certificate of Occupancy is validly in place, the right approach by the Defendant should have been to attack such validity and allege non-payment of compensation and advance other reasons which Court have duly considered for or against. In the absence of the above, the certificate of occupancy is validly in place and it covered both the uncompleted building and the piece of land in dispute. Court cannot help the here at all under (sic) the circumstance.
In the absence of a payer (sic) to set aside an existing statutory Certificate of Occupancy, the only other authority and indeed the sole authority that can revoke a Certificate of Occupancy is the Governor of the State. See Section 28 Land Use Act 1978. The curtain is drawn in this judgment. The plaintiff’s case succeeds and judgment is entered in his favour and against the Defendant as follows;
(1) The Plaintiff is declared the rightful owner of the plot of the land in dispute as the heir of late Mr. Zakariya B. Gaiya, who secured ownership of same by Government allocation covered by a Certificate of Occupancy.
(2)

An order is granted for a perpetual injunction restraining the Defendant whether by himself, agent, servants, privies, assigns or any person claiming through or from the Defendant, from committing further acts of trespass into the plot, the Plaintiff’s plot of land or from interfering in any way with the Plaintiff’s use and enjoyment of the said plot and building thereon.
(Signed) JUSTICE L. D. ABA
15.10.08

I have no reason to disagree with the decision of the trial Judge. I would dismiss this appeal and affirm the judgment of L. D. Aba J of the High Court of Kaduna State Holden at Kafarchan, delivered on 15/10/08.

Appeal allowed.

Appearances

I. O. Habeeb, Esq. For Appellant

AND

J. B. Amos, Esq. For Respondent