ALHAJI ALIYU MUHAMMAD HADEJIA v. ALHAJI BAFALE ABBAS
(2016)LCN/8385(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2016
CA/K/233/2012
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
ALHAJI ALIYU MUHAMMAD HADEJIA Appellant(s)
AND
ALHAJI BAFALE ABBAS Respondent(s)
RATIO
LAND LAW: CERTIFICATE OF OCCUPANCY: CONDITIONS FOR A CERTIFICATE OF OCCUPANCY TO BE VALID
For a certificate of occupancy 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. 1083) P.286 @ 325, 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 @ 25, 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 issue a customary owner who has not been divested of his title over the land See also AZI v. REG. TRUSTEES OF EVAN. CHURCH (1990) 5 NWLR (Pt. 195) P.111 @ 121.
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; DSUNGWE v. GBISHE; OGUNLEYE v. ONI (1990) 2 NWLR (Pt. 135) P. 745; SAUDE v. ABDULLAHI; OLOHUNDE v. ADEYOJU 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 (2003) 11 NWLR (Pt. 830) P. 53; ESO v. ADEYEMI; AZM REG. TRUSTEES OF THE EVAN. CHURCH OF WEST AFRICA (1991) NWLR (Pt. 155) P. 113; AND REG. TRUSTEES, APOSTOLIC CHURCH v. OLOWOLENI (1995) 6 NWLR (P.158) P. 514. PER. IBRAHIM SHATA BDLIYA, J.C.A.
LAND LAW: TITLE TO LAND; WHERE MORE THAN ONE PERSON CLAIM TITLE TO LAND WHO TAKES PRIORITY IN LAW
The law has been settled for long that where two or more persons claim title to land or a right of occupancy over the same land, the first in time takes priority as it is stronger in law. The latter grantee is deemed not to have been granted any title or right of occupancy. A grantor of title or right of occupancy cannot give title or right of occupancy to two persons, one must be valid, the other invalid. The law is trite one cannot grant title over a parcel of land and still be in legal position to grant such title to another. He would have no such title to grant to the latter grantee under the doctrine of “nemo dat quad non habet”. See FBB Ind. Ltd. v. Mutunci Co. (Nig.) Ltd. (2012) 6 NWLR (P.1297) P.487 @ 524; Omiyale v. Macaulay (2007) 7 NWLR (Pt. 1141) P.597; Ibrahim v. Osunde (2009) 6 NWLR (Pt. 1137) P. 382; Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) P. 1 and Dantsoho v. Mohammed (2003) 6 NWLR (Pt.817) P. 457. PER. IBRAHIM SHATA BDLIYA, J.C.A.
COURT: NON-SUIT; WHEN A NON-SUIT ORDER IS TO BE MADE
I agree with the learned counsel to the appellant that where the evidence adduced by the plaintiff in a civil proceedings is credible to prove the claims, and at the same time the defendant has failed to adduce evidence to sustain his defence against the claim of the plaintiff, the Court should make an Order of non-suit. This position of the law has been reemphasized in the case of Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) p. 208 @ where Nnaemaka-Agu J.S.C (of blessed memory) said:
“The overriding consideration at all times appears to be that considering the justice of the case of the parties, justice demands that the plaintiff should be given a chance to institute another action on the same issues – and should not be shut out for good and that the defendant is not entitled to judgment.
A non-suit is a final decision which decides that none of the parties has won, but preserves the plaintiff’s right of another action on the same subject-matter and the same issues”
In Dada v. Ogunremi (1967) NWLR P. 181, the Court clearly stated when a non-suit order is to be made thus:
“It is well established that where neither of the parties before the Court is entitled to judgment, the Court is entitled to enter a non-suit instead of a dismissal.” However, in Ukaegbu v. Nwololo (2009) 1-2 MJSC P. 98 the Apex Court held that:
“Where in a trial of an action, evidence has been adduced by both parties and the plaintiff fails to prove his case the proper order is that of dismissal.” PER. IBRAHIM SHATA BDLIYA, J.C.A.
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): The appellant (the plaintiff at the lower Court) claimed that he bought the parcel of land in dispute from Muhammed Shahada in 1983.? That the parcel of land was allocated to him by the Hadejia Local Government. A certificate of occupancy was issued to him by the Ministry of Lands, Kano State. In 2004, he discovered that the respondent (defendant at the lower Court) had trespassed in to the parcel of land.? The respondent asserted that he purchased the land from one Yusuf Garba in 2004. That Yusuf Garba purchased the parcel of land from the original allottee who was allocated the land in 1973 by Hadejia Native Authority and a certificate of occupancy was issued to him by Kano State Ministry of Work and Survey in 1975.
? The appellant being dissatisfied with the claim of the respondent, instituted an action before the High Court of Jigawa State (the lower Court) against the respondent. The respondent counter-claimed against the appellant. After taking of evidence from the parties and addresses of learned counsel, the lower Court delivered its judgment on the 22nd
of December, 2010, dismissing the claims of the appellant, and granted the counter-claim of the respondent. Dissatisfied with the judgment of the lower Court, the appellant filed Notice and grounds of appeal to this Court on the 22nd of March, 2011 which was amended on the 22nd of May, 2013.
The appellant’s brief of argument was filed on the 7th of June 2013. The respondent’s brief of argument was filed on the 10th of November 2015. A Reply brief was filed by the appellant on the 1st of February 2016.?The appeal was argued on the 3rd of February, 2016 whereat, learned counsel to the appellant adopted the brief of argument, and did urge the Court to allow the appeal, and set aside the judgment of the lower Court.
Learned counsel to the respondent did adopt the brief of argument, and urged the Court to dismiss the appeal and affirm the judgment of the lower Court. Four (4) issues have been distilled from the grounds of appeal on page 2 of the appellant’s brief of argument for determination. They are thus:
“(1) Whether the learned trial Judge was right to dismiss the appellants claims on the bases of inter alia.?DW2’s evidence and
then enter judgment for the respondent on his counterclaim on the quality of the evidence he adduced?
(2) Whether the learned trial Judge’s failure to consider the appellants Reply and Defence to counterclaim amounted to a breach of his right to fair hearing which occasioned a miscarriage of justice?
(3) Whether the learned trial Judge by suo motu raising the issues of the purported in authenticity of Exhibit 12 and lack of governors consent without inviting the parties and their lawyers to address the same breached the right to fair hearing and occasioned a miscarriage of justice?
(4) whether the learned trial Judge having found that the appellant had failed to prove his case should not have entered a non-suit on the basis of the respondent also failing to prove his own?”
The respondent adopted the 4 issues contained in the appellant’s brief of argument.
RESOLUTION OF ISSUES
The 4 issues formulated by both learned counsel in their respective brief of argument are hereunder resolved in the following Order, 2,3, 1 and 4, respectively.
ISSUE 2
Whether the failure of the learned trial Judge of the lower Court to consider
the appellant’s Reply and defence to the counter-claim tantamount to a breach of his right to fair hearing which occasioned a miscarriage of justice? Majiyagbe Esq. who settled the appellant’s brief of argument contended that the Reply and the defence to the counter-claim which were filed by an Order of Court granted on the 12th of April 2006, were not taken into consideration by the lower Court when it found and held that the appellant did not file same in its judgment. That having not considered the Reply and the defence of the appellant his right to fair hearing had been breached because a Court of law must consider the case of both parties before taking a decision appropriately. Counsel argued that it is irrelevant that even if the Court has had considered the Reply and the defence, its judgment would not have been different. Counsel adumbrated that justice must not only be done, but must be seen to have been done in the view of a reasonable man observing the entire proceedings of the Court. Learned counsel cited the case of Ekiyor v. Bomer (1997) 9 NWLR (pt.519) p. 1 wherein it was held that the mere failure to consider any evidence (documentary or oral)
of party to the dispute, is fundamental error, even if such document or oral evidence would not have made any difference to the decision reached by the Court. In the instant case, counsel contended, whether or not the appellant’s Reply and defence to the counter-claim would have swayed the learned trial Judge’s or made any difference at all is immaterial. That the failure to consider them at all, is the issue, which fatally breached the right to fair hearing, of the appellant. Counsel did urge that issue 2 be resolved in favour of the appellant.
Nassarawa Esq., contended that all issues raised in the defendant’s statement of claim were not controverted in the defence to counter-claim, therefore, they are deemed admitted. That where averments are not traversed by the defence, they are deemed admitted. The case of GMBH v. T. D. Industries Ltd (2010) 42 (Pt. 2) NSCQR 1 cited to buttress the submissions supra. Counsel further argued that the statement of claim of the appellant and the evidence adduced in support have been considered and reviewed by the lower Court in the judgment, but no evidence led on the averments in Paragraph 7 of the defence to the
counter-claim. That facts pleaded without evidence adduced to support same, are deemed abandoned. The case of UBA v. AB Ltd (2010) 41 (Pt.2) NSCQR P. 16 cited to reinforce the contention supra. That in view of the foregoing, there were nothing left in the defence to the counter-claim to be considered. Consequently, there was no breach of fair hearing as alleged by the appellant.
Learned counsel referred to the findings and the conclusion reached on page 182 of the printed record of appeal?and contended that the lower Court did consider all the pleadings, and the evidence before it in arriving at its decision. That there was no breach of the appellant’s right to fair hearing which occasioned a miscarriage of justice to him. Counsel urged the Court to disregard the case of Ekiyor v. Bomer (1997) 9 NWLR (Pt.519) P. 1 cited by learned counsel to the appellant, for same is not relevant to the issue at hand. The Court has been urged to resolve issue 2 against the appellant.
The defence to the counter-claim are contain in Paragraphs 6 and 7, which are thus:
“6. The plaintiff repeats all?the averments in his statement of claim and avers that the 1st
defendant is not entitled to any of the reliefs claimed in the counter-claim or any reliefs at all.
7. The plaintiff avers that the Certificate of occupancy that the 1st defendant claims to have must be a forgery.
Particulars
i. The Certificate of Occupancy is unknown to the officials of the Ministry of Lands & Physical Planning in both Kano and Jigawa.
ii. The Certificate of Occupancy was not issued by an unauthorized Person or body.”
These averments have not been controverted by the appellant. Averments in pleading not controverted or traversed are deemed to be admitted.
?No evidence adduced to prove the allegation of forgery as alleged. Pleadings not supported by evidence are deemed abandoned.
See UBA v. ABCWA Ltd (2010) 41 (Pt. 2) NSCQR P. 16 and Sani Abacha Foundation v. UBA (2010) 41 (Pt.1) P. 376. There was nothing to consider in the defence to counter-claim other than averments in the statement of claim. In view of the foregoing, there was no breach of fair hearing to the appellant. On page 182 of the printed record of appeal, the lower Court held that:
“…The above piece of evidence has not been
controverted and is in accordance with the averments contained in Paragraphs 8-16 of the Statement of Defence. The Court of Appeal in Bello v. Apuwa (1999) 8 NWLR (Pt. 675) P. 454 held that “A party is only entitled to judgment if a trial Court believes and accepts his evidence and if such evidence supports his case. The mere fact that, the Court rejected the evidence of a defendant does not entitle the plaintiff to judgment.”
From the portion of the judgment reproduced supra, the learned trial Judge of the lower Court considered all the pleadings and the evidence before him in arriving at a decision. There was, therefore, no breach of fair hearing occasioned to the appellant. I am in agreement with Nassarawa Esq. that the principle of law and the decision in Ekiyor v. Bomer (1997) 9 NWLR (Pt. 519) P.1, cannot be applicable to the instant appeal, in that the facts and events are not same. The case of Ekiyor v. Bomer is therefore distinguishable from the instant appeal.?Issue 2 is hereby resolved against the appellant.
ISSUE 3
Whether the learned trial Judge, by raising suo motu the issue of the authenticity of Exhibit 12 and lack of Governor’s
consent without inviting the parties or counsel to address on same, did not breach the right to fair hearing and occasioned miscarriage of justice to the appellant?. Majiyagbe Esq., submitted that the learned trial Judge of the lower Court raised the issue of Exhibit 12 being unauthentic and the lack of consent by the Governor for the transfer of title over the parcel of land in dispute, without inviting the parties to address him, before taking a decision violating the appellant’s constitutional right to fair hearing. Learned counsel pointed out that Exhibit 12 is vital to the determination of the dispute before the lower Court. That his relying on the said Exhibit 12 without hearing the parties, on its authenticity or otherwise, certainty was not in the interest of the appellant. In this regard, it was submitted, the failure of the lower Court to invite the parties, to address it before taking a decision violated the right of fair hearing, which occasioned a miscarriage of justice to the appellant.
That where a Court of law raised an issue suo motu, and rely on same to arrive at a decision without hearing the parties to the dispute, such decision is
but a nullity, null and void liable to be set aside by an appellate Court. The cases of Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) P.556; Kato v. CBN (1999) 6 NWLR (Pt. 607) P. 411 and Ogundele v. Agiri (2009) 18 NWLR (Pt. 1173) P. 249 cited to buttress the submissions supra. Counsel further adumbrated that even if the decision of the Court would not be different had the parties been invited to address the Court on the issue raised suo motu, it is not the issue but that the essential point is that, parties to a dispute must be given a hearing before a decision is taken, in their favour or against them. In view of the foregoing, learned counsel did urge that issue 3 be resolved in favour of the appellant.
Nassarawa Esq., of learned counsel, did contend that the learned trial Judge did not raise the issue of Exhibit 6 and 12 suo motu. That the issue has been raised by the parties regarding the authenticity of Exhibit 12 and the desirability of Governor’s consent for any transfer of title in land to be valid as required by the provisions of Sections 21 and 26 of the Land use Act.
Though it is ordinarily not wrong for a Court or Tribunal to raise a vital
issue suo motu, where an issue is so raised the Court must afford the parties or their counsel the opportunity to address it on the issue so raised.
This is to ensure compliance with the rules of fair hearing in order to do justice to both parties.
See Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) P.1 @ 33; Dalek (Nig) Ltd v. OMPADEC (2007) 7 NWLR (pt. 1033 P. 402); Shasi v. Smith (2009) 18 NWLR (Pt. 1173) P.330.
When a Court, for any compelling reason, finds it necessary, and particularly in the interest of justice, to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such a point or issue. This rule applies even with greater force in favour of the party that would be prejudiced as a result of the point raised without the prompting of any of the litigants in the case. The implication is that its violation amounts to a flagrant breach of the aggrieved party’s right to fair hearing as entrenched in the Constitution. It amounts to a miscarriage of justice; meaning, a failure of justice or justice which is not in consonance with the law, Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410; Atanda v. Lakanmi (1974)
3 SC 109; Odiase v. Agho (1972) 3 SC 73; Kraus Thompson Org. Ltd. v. Unical (2004) 9 NWLR (Pt.879) 631; Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267; Ugo v. Obeikwe (1989) 1 NWLR (Pt. 99) 566; Owoso v. Sunmonu (2004) 30 WRN 93; Ojo v. Anibire (2004) 10 NWLR (Pt.882) 571.
In Ugo v. Obeikw (1989) 1 NWLR (Pt. 99) 566, the Apex Court held as follows where an issue has been raised suo motu, and resolved without inviting the parties to address the Court before taking a decision.
“it is basic and fundamental in our system of administration of justice that no one can have a decision entered against him without his being heard. This is the essence of the maxim: audi alteram partem. That maxim implies not only that all parties to be affected by a decision are entitled to be heard in the case on hand before the decision is given out but also that if, in the course of hearing, any new point material to the decision arises, each of such patties shall be heard on it before a decision based upon it can rightly be handed down… Quite apart from this, a judge who in our system must be and be seen as an impartial umpire will be anything but that if he takes up a
material point, no matter how clear it may appear, and, without hearing any of the parties to be affected by the decision, decides it. That cannot be even-handed justice. A Court ought never raise an issue for either of the parties and, without hearing both parties proceed to base his judgment on it”.
Again in Kato v. CBN (1999) 6 NWLR (Pt. 607) P.411, the Apex Court when considering the raising of an issue suo motu and resolving same without hearing the parties to the dispute said:
“Worse still is the fact that the Court of Appeal not only erroneously raised the issue of jurisdiction suo motu, it proceeded to decide the appeal upon that point without inviting counsel to address the Court thereupon. This, again is a serious error in law for on no account should a Court of law raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve the case between the parties thereon without inviting them or counsel on their behalf to address the Court on that point. If it does so, it will be in breach of part’s fundamental right to fair hearing”.
?Did the learned trial Judge of the lower Court raise the issue of the authenticity
of Exhibits 6 and 12 suo motu, as well as the lack of consent of the Governor to transfer title over the disputed land to the appellant, and resolved same in favour of the respondent, without first inviting the parties to address him on it. From the decision of the lower Court, the authenticity of Exhibits 6 and 12, has been raised by evidence of DW2. The issue of fraud was therefore raised that is why the Court held that the appellant has not proved his root of title which he traced to DW2. The Court further considered whether Exhibit 12 (certified English translation of the sale agreement) could transfer a valid title. The Appellant’s counsel in his final written address raised this issue when he argued that since Hadejia Local Government had approved the transaction between the appellant and Alhaji Mohammed Maishahada, it means that he had sufficiently complied with Section 21 of the Land use Act. Therefore, the purported sale to the respondent is by virtue of S.26 of the Land Use Act null and void as it did not comply with Section 21 of the same Act. It is therefore not correct to say that the learned trial Judge raised this issue suo motu without allowing
counsel to address him. Therefore, the issue as to whether Exhibit 12 can confer title to the appellant was not raised by the learned trial Judge suo motu. Consequently, issue 3 is resolved against the appellant.
ISSUE 1
Whether the learned trial Judge of the lower Court was right in dismissing the appellant’s claims on the evidence adduced, therefore entered judgment for the respondent in respect of the counter-claim. Majiyagbe Esq., of learned counsel, submitted that contrary to the findings and decision of the lower Court the issue of the identity of the parcel of land was not an issue because same was known to the parties. That where the identity of the land was known to the parties, there was no requirement raised to it by the pleadings of the parties, especially the respondent. Counsel cited and relied on the cases of Ilona v. Idokwo (2003) 11 NWLR (Pt. 830) P. 53 @ 85; Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) p. 292 @ 301 to buttress the submissions supra.
On the root of title to the disputed land counsel contended that the appellant had pleaded and adduced cogent evidence, documentary and oral to establish same. That the appellant
purchased the land from one Muhammed shahada to whom the land was allocated in 1983 by the Hadejia Local Government vide an agreement in the presence of witnesses.
Submitting further, counsel pointed out that the appellant was granted right of occupancy in 1985 by the Hadejia Local Government and subsequently a certificate of occupancy was issued to him by the Kano State Ministry of Lands.
On the rejection of Exhibits 3, 6 and 12 by the learned trial Judge of the lower Court, counsel contended out that the reasons given by the learned trial Judge is not tangible. That even without Exhibits 6 and 12, there are cogent evidence before the lower Court proving the title of the appellant as required under customary law transactions in land. The case of Gaji v. Daye (2003) 8 NWLR (Pt.823) P. 583 @ 607 cited in aid.
In conclusion, learned counsel submitted that the evidence adduced by the respondent did not controvert the evidence by the appellant to warrant the decision arrived at by the lower Court. Counsel urged the Court to resolved issue 1 in favour of the appellant.
?Nassarawa Esq., of learned counsel to the respondent, submitted that in a
claim for declaration of title to land, it is the duty of the claimant to prove his case by cogent and credible evidence, not on the weakness of the defence. The case of Osuji v. Ekeocha (2009) 7 MJSC P.74 cited to reinforce the submission supra. Learned counsel contended that the appellant relied on documents of title to prove his claim, but the evidence of DW2, the alleged original title holder that the land never allocated to him had discredited whatever evidence the appellant relied on in proving his title to the land.
On whether the learned trial Judge of the lower Court was right in dismissing the appellant’s claims and entered judgment for the respondent in the counter-claim, learned counsel contended that the evidence of DW2, Exhibits 3, 6 and 12 and 13 clearly established the title of the respondent, therefore, the lower Court was right in dismissing the appellant’s claims and entered judgment in favour of the respondent. Learned counsel did urge that issue 1 be resolved against the appellant.
The appellant (as plaintiff) sought the following reliefs in his amended statement of claim:-
“i. A Declaration that the property is still the
legitimate property of the plaintiff.
ii. A Declaration that the defendant has no right of claim either in law or in equity over the property.
iii. A Declaration that the plaintiff has never by himself or through his servants, agents or privies entered into any transaction or agreement with the defendants that gives him title to or a lien on the property.
iv. A Perpetual Injunction restraining the defendants, his servants, agents or privies from mortgaging, transferring, assigning, alienating, leasing or in any way dealing with the property in any manner which is prejudicial to the rights and interests of the plaintiff over the property.
v. AN ORDER of possession of the property
vi. Damages
vii. N500,000.00 to cover the plaintiff’s Solicitor’s fees.
viii. The cost of filing this action.”
?The respondent (as defendant) sought the following reliefs in his counter-claim against the appellant.
“A declaration that the 1st defendant counter claimant is the legitimate owner of the plot of land subject matter of this suit covered by Certificate of Occupancy No. KN 1361 dated 2nd July, 1975.
A declaration that the
purported grant of a Certificate of Occupancy No. LKN/CON/RE5/83/252 in June 1985 to the plaintiff upon the allocation already made to Abdulkadir Haruna on Certificate of Occupancy No.KN. 1361 dated 2nd July, 1975 and its conversion to Certificate of Occupancy is illegal, unlawful, null and void.
A declaration that the Kano State Ministry of Land’s and Survey has no power in law to grant a statutory right of occupancy No. LKN/CON/RES/83/252 over the said land subject matter of this suit in June 1985 after it had already granted a statutory right of occupancy No. KN. 1361 to Abdulkadir Haruna on 2nd July, 1975.
Defendant’s/counter claimant’s ownership and possession of the plot of land covered by Certificate of Occupancy No. KN.1361 of 2nd July, 1975.
N500,000,00 damages for trespass and attempting to confiscate, the 1st Defendant’s/counter Claimant’s plot of land covered by Certificate of Occupancy?No. KN.1361 of 2nd July, 1975 by purportedly obtaining a right of Occupancy over the said land after it had already been granted to Abdulkadir Haruna.”
Learned trial Judge of the lower Court, after taking evidence from the witnesses and
address of learned counsel to the parties, found and held as follows on page179 of the printed record of appeal:
“In the circumstances of this case, I have no doubt in my mind that no plaintiff in favour of the defendant/counter claimant whose interest is more on declaration of title to him of the land in dispute and not more no less. Consequently the 1st, 2nd, 3rd, 4th and 5th reliefs are sufficient to the defendant/counter claimant and the same are hereby granted. However, the award of general damages is dismissed.”
Was the learned trial Judge right in his decision supra. The law is trite, in an action seeking for a declaration of title to land, the claimant can only succeed if cogent, credible and reliable evidence have been adduced to establish such claim. In Adisa v. Onyiwola (2000) 10 NWLR (Pt.674) P. 116 @ 179; Ayoola J.S.C, enunciated that:
“Where in a claim for declaration of title to land, title is claimed by grant, the Court has to be sure of the nature of the grant before a declaration is granted. In other words, where a party relies on, and pleads a grant as his root of Court. Other evidence of acts of possession after the grant
will merely go to strengthen the grant. But where proof of the grant is inconclusive, the bottom is knocked out of the claim… This is because, where the radical title pleaded is not proved, it is not permissible to support or substitute a non-existent or failed root with acts of possession which should have derived that root”. Emphasis supplied.
See also Yusuf v. Adegoke (2007) 11 NWLR (Pt.1045) P.332; Ayorinde v. Kuforiji (2007) 4 NWLR (Pt.1024) P.341.
The appellant’s case is that in 1983, he bought the parcel of land (when it was still part of Kano State) which is located in Hadejia, Jigawa State from one Mohammed Shahada, who was allocated same by Hadejia Local Government. It was a customary sale transaction before witnesses. In 1985, having verified his ownership from Hadejia Local Government, the Ministry of Lands, Kano State granted him a Certificate of Occupancy.
The respondent’s case is that he bought the land from Yusuf Garba in 2004. Yusuf Garba had himself purchased it from one Abdulkadir Haruna, the alleged original allottee of the land, who was granted same in 1973 by Hadejia Native Authority. A Certificate of occupancy was
issued to him by Kano State Ministry of Works and Survey in 1975.
It is pertinent to note, at this juncture, that the appellant’s case is predicated on the averments contained in Paragraphs 3-8 of the amended statement of claim. Similarly, the case of the respondent has been predicated on the averments in Paragraphs 8-17 of the statement of defence and counter-claim. Did the appellant and the respondent adduce cogent and credible evidence in support of their respective claims having regard to the pleadings and the evidence adduced by each of them before the lower Court?
The law is trite that in a claim for a declaration of title to land, the onus of proof lies on the plaintiff to satisfy the Court that he is entitled to such a declaration. See Adesina v. Bac Ekeland Ltd (2007) All FWLR (Pt. 969) p. 1279 @ 1321.
?A declaratory relief is a discretionary one which is not granted as a matter of course. The plaintiff must adduce strong and credible evidence in support of his claim to be entitled to judgment. see Networks Security Ltd. v. Dahiru (2008) All FWLR (Pt. 419) P. 4750 @ 47.
They are five (5) ways of proving title to land as enumerated in
the cases of Dabo v. Abdullahi (2005) 5 MJSC P.57 @ 68; Idundun v. Okusmagba (1976) MC 227 and Ayoola v. Odofin (1984) 2 SC 120. The five (5) ways to prove title to land are:
(a) by traditional evidence;
(b) production of documents of title duly authenticated and authorized;
(c) acts of selling, leasing, renting out all or part of the land or farming thereon or part of it;
(d) acts of long possession and enjoyment of the land, or
(e) 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.
The appellant (as plaintiff,) gave evidence at the lower Court as PW1. He called 5 other witnesses who testified on his behalf. The gist of their testimonies are thus: PW7, the appellant stated that he purchased the parcel of land from one Alh. Mohammed Shahada in 1983. He was issued letter of grant No. LKN/CON/RES/83/252 and right of occupancy No. LKN/CON/RES/85/212 which were admitted in evidence as Exhibits 1 and 2 respectively. The land was originally allocated to Alh. Mohammed Shahada vide letter of
allocation NO. HLG/SUR/316, which is Exhibit 3.
That there was a sale agreement between him and Alh. Shahada which is Exhibit 4 and 5. Change of ownership admitted as Exhibits 6. Letter of grant and right of occupancy as Exhibit 8, 9 and 10.
The respondent gave evidence and called witnesses who testified on his behalf. He gave evidence as DW1. He stated that he bought the land from one Alh. Yusuf Garba. That there was sale agreement which is Exhibit 14A and 14B. That Alh. Yusuf Garba purchased it from Alh. Abdulkadir Haruna who was the original allottee. It was allocated to him by the Hadejia Local Government and later converted to right of occupancy in 1974 and a certificate of occupancy issued to him, which is Exhibit 15. The 2nd witness is Alh. Muhammed Shahada. He denied any allocation of land to him by Hadejia Local Government. He also denied selling any parcel of land to the appellant. DW3, Alh. Yusuf Garba testified that he bought the land from Alh. Abdulkadir Haruna. Deed of assignment was executed, it is Exhibit 16. DW4, Alh. Abdulkadir Haruna testified that:
“I know the piece of land in dispute and it is situated at New GRA?Hadejia. To
the best of my knowledge I am the initial owner of the plot. The plot was allocated to me by Hadejia Native Authority in 1974. I applied for Certificate of Occupancy from former Kano State Government which was issued to me on the 2nd May 1974. He identified the certificate. Later I mortgaged the certificate to Arab Bank in Bello Road, Kano. I retrieved the certificate 5 years back which was in 2005. I then sold the plot to one Yusuf Garba.
From the time I sold the plot up till now there is no development on the plot. From that date up to the time I sold it I have no knowledge of whether the plot had been allocated to another person as I was in UK then. I was also at that time working in the Ministry of works and the certificate was signed by Alhaji Muhammadu Kazaure, Magaiin Garin Kazaure who was the commissioner for work under Audu Bako regime”.
There are five (5) ways to prove title to land as enunciated in a plethora of pronouncement by the superior Courts, among which are Baba-Iya v. Sekile (2005)3 NWLR ((Pt. 965) P. 508 @ 528 wherein it was stated that; title to land may be proved by any of the following:
(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 appellant relied on Exhibits 1, 2,3,4,5, 6, 7, 8, 9, 10, 11 and 12 as title documents as well as the evidence of PW1-6 to prove his title to the parcel of land in dispute. Exhibit 8 is letter of grant and Exhibit 9 is certificate of occupancy. Exhibit 8 was issued/granted on 1985 and Exhibit 9 issued on 2nd of June, 1985. The respondent relied on Exhibits 14A, 14B, 15 and 16 was well as the evidence of DW1, DW2 and DW3 to establish his title to the disputed land. Exhibits 8, 9, 15 and 16 are letter of grant and certificate of occupancy. Being certificates of occupancy, they raise presumption that the
person named therein is the holder of title thereof.
See Mani v. Shanono (2007) All FWLR (Pt.724) P.305 @ 318.
For a certificate of occupancy 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. 1083) P.286 @ 325, 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 @ 25, 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 issue a customary owner who has not been divested of his title over the land See also AZI v. REG. TRUSTEES OF EVAN. CHURCH (1990) 5 NWLR (Pt. 195) P.111 @ 121.
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; DSUNGWE v. GBISHE; OGUNLEYE v. ONI (1990) 2 NWLR (Pt. 135) P. 745; SAUDE v. ABDULLAHI; OLOHUNDE v. ADEYOJU 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 (2003) 11 NWLR (Pt. 830) P. 53; ESO v. ADEYEMI; AZM REG. TRUSTEES OF THE EVAN. CHURCH OF WEST AFRICA (1991) NWLR (Pt. 155) P. 113; AND REG. TRUSTEES, APOSTOLIC CHURCH v. OLOWOLENI (1995) 6 NWLR (P.158) P. 514.
The law has been settled for long that where two or more persons claim title to land or a right of occupancy over the same land, the first in time takes priority as it is stronger in law. The latter grantee is deemed not to have been granted any title or right of occupancy. A grantor of title or right of occupancy cannot give title or right of
occupancy to two persons, one must be valid, the other invalid. The law is trite one cannot grant title over a parcel of land and still be in legal position to grant such title to another. He would have no such title to grant to the latter grantee under the doctrine of “nemo dat quad non habet”. See FBB Ind. Ltd. v. Mutunci Co. (Nig.) Ltd. (2012) 6 NWLR (P.1297) P.487 @ 524; Omiyale v. Macaulay (2007) 7 NWLR (Pt. 1141) P.597; Ibrahim v. Osunde (2009) 6 NWLR (Pt. 1137) P. 382; Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) P. 1 and Dantsoho v. Mohammed (2003) 6 NWLR (Pt.817) P. 457.
The certificate of occupancy the appellant relied on to prove his title to the disputed land was issued on 2nd June 1985, whereas, the certificate the respondent relied on to prove his title to the same land was issued on the 2nd May, 1974. Where two or more persons claim title to land by virtue of a certificate of occupancy, the first in time takes precedence over and above the former. Furthermore, the law is trite, any title or right of occupancy acquired over a parcel of land when there is in existence another certificate of occupancy, which has not been revoked in accordance with
the law, the latter title cannot be valid in law. See Adole v. Gwar (2008) 11 NWLR (Pt. 1099) P. 562; Salami v. Oke (1987) 4 NWLR (Pt. 63 )P. 1; Ajilo v. SBN Ltd (1989) 1 NWLR (Pt.97) P. 555 and Ogunleye v. Oni (1995) 2 NWLR (Pt. 135) P.745.
The evidence adduced before the lower Court clearly showed that the appellant’s title to the disputed land has been predicated on Exhibit 8 and 9 which were issued on 2nd of June 1985, whereas that of the respondent was issued on 30th May, 1974. The certificate of occupancy issued in 1974 supersedes and takes priority over the one issued in 1985. Where two persons trace their root of title to the same source, the earlier in time prevails. See Ejuetam v. Olaiya (2001) RSCNJ P. 140 @ 168.
The certificate of occupancy Exhibit 9 and the grant of the right of occupancy Exhibit 8 on which the appellant relied on to prove his title to the disputed parcel of land, having been granted and or issued at a time the respondent had acquired title over same land by virtue of Exhibits 14A, 14B and 15, and 16 which were in existence, and not having been revoked in accordance with the law, are void ab initio, null and void. See
Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) P. 53; Eso v. Adoyemi (1994) 4 NWLR (Pt. 340) P. 558; Azi v. ATECWA (1991) NWLR (Pt. 155) P. 113 and RTAC v. Olowoleni (1995) 6 NWLR (Pt.158) P. 514.
On page 177 of the printed record of appeal, the learned trial Judge of the lower Court found thus:
“In the case at hand, the evidence adduced by the counter-claim supports his pleadings and the stories therein is more probable and acceptable than that?of the plaintiff, particularly when the evidence of all the witnesses are consistent and unchallenged. I therefore believe and accept the evidence of these witnesses as credible. ”
I am in agreement with the findings of the learned trial Judge of the lower Court supra. Consequently, issue 1 is hereby resolved against the appellant.
ISSUE 4
Whether the learned trial judge having found and held that the appellant had failed to prove his case should have entered a non-suit because of the respondent having failed to prove his case?
Majiyagbe Esq. submitted that if the appellant had not adduced sufficient evidence to prove his case, an Order of non suit ought to have been made, because the evidence
of the respondent did not prove his claim of title to the land. The case of Okpala v. Ibeme (1989) 2 NWLR (pt. 102) p, 208 @ 224 cited in aid. That where neither of the parties to the dispute had adduced credible evidence which the Court can rely on to decide the case in favour of any of them, the order of non-suit should be made to enable the plaintiff to reinstitute same suit in future. The case of Dada v. Ogunremi (1967) NWLR P. 181 cited to reinforce the submission supra.
Nassarawa Esq., for the respondent submitted that the respondent by his evidence proved the counter-claim. That the learned trial Judge had found that the appellant did not adduce credible evidence to support his claims, that was why it was dismissed. That in view of the foregoing, an order of non-suit would have been improper in law.
I agree with the learned counsel to the appellant that where the evidence adduced by the plaintiff in a civil proceedings is credible to prove the claims, and at the same time the defendant has failed to adduce evidence to sustain his defence against the claim of the plaintiff, the Court should make an Order of non-suit. This position of the law
has been reemphasized in the case of Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) p. 208 @ 224 where Nnaemaka-Agu J.S.C (of blessed memory) said:
“The overriding consideration at all times appears to be that considering the justice of the case of the parties, justice demands that the plaintiff should be given a chance to institute another action on the same issues – and should not be shut out for good and that the defendant is not entitled to judgment.
A non-suit is a final decision which decides that none of the parties has won, but preserves the plaintiff’s right of another action on the same subject-matter and the same issues”
In Dada v. Ogunremi (1967) NWLR P. 181, the Court clearly stated when a non-suit order is to be made thus:
“It is well established that where neither of the parties before the Court is entitled to judgment, the Court is entitled to enter a non-suit instead of a dismissal.”
However, in Ukaegbu v. Nwololo (2009) 1-2 MJSC P. 98 the Apex Court held that:
“Where in a trial of an action, evidence has been adduced by both parties and the plaintiff fails to prove his case the proper order is that of
dismissal.”
The lower Court after considering the evidence adduced before it by both the appellant and the respondent, found that the case of the appellant was not proved by credible evidence. It accordingly dismiss the appellant’s case. The lower Court then considered the evidence of the respondent on his counter-claim and came to the decision that same was proved by credible evidence. In the circumstances, an Order of non-suit could not have been appropriate. For the foregoing reason, I resolve issue 4 against the appellant. Having resolved the 4 issues against the appellant, the appeal fails. The judgment of the lower Court delivered on the 22nd of December 2010, in suit No. JDU/HC/HJ/24/2004, is hereby affirmed. The respondent is entitled to costs assessed at N30,000.00. Same is hereby awarded to him.
UWANI MUSA ABBA-AJI, J.C.A.: I read in draft the judgment of my learned brother, Ibrahim S. Bdliya, JCA just delivered.
I agree entirely with the views expressed therein and the conclusions arrived at that the appeal is devoid of any merit. For the comprehensive reasons in the judgment that I too
dismiss this appeal for lacking in merit. I too affirm the judgment of the lower Court delivered on the 22nd of December, 2010 in suit No. JUD/HC/HJ/24/2004.
I also abide by the consequential order made including orders as to costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.:?The facts of this case and the contentions of Counsel to the parties have been amply set out in the lead judgment.
My learned brother Ibrahim S. Bdliya JCA has adequately dealt with the issues in dispute. I am in agreement that the appeal lacks merit.
?The judgment of the lower Court is accordingly affirmed with costs of N30,000.00 to the Respondent.
Appearances
J. M. M. Majiyagbe, Esq.For Appellant
AND
I. A. Nassarawa, Esq.For Respondent
