ALHAJI MOGAJI ABUDU LATEJU V. DR OLU FABAYO (2011)

ALHAJI MOGAJI ABUDU LATEJU V. DR OLU FABAYO

(2011)LCN/4799(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of November, 2011

CA/IL/29/2009

RATIO

REVOCATION OF RIGHT OF OCCUPANCY: POSITION OF THE LAW ON REVOCATION OF RIGHT OF OCCUPANCY

By section 28 of the Land Use Act, clear procedures are stipulated as to how a certificate or right of occupancy can be revoked and by who, as follows: 28 (1) “It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest” Sub-section 2 of that section gives the meaning of the term overriding public interest for which a right of occupancy or deemed right of occupancy can be revoked. Sub-section 5 stipulates the grounds on which a statutory right of occupancy can be revoked, while sub-sections 6 and 7 state as follows: “(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly anthorised in that behalf by the Governor and notice thereof shall be given to the holder. (7) the title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection 6 of this section or on such later date as may be stated in the notice.” PER ITA G. MBABA J.C.A

CERTIFICATE OF OCCUPANCY: WHETHER MERE PRODUCTION OF CERTIFICATE OF OCCUPANCY IS AN EVIDENCE OF TITLE

By law, mere production of certificate of occupancy is a prima facie evidence of title, until the adverse party can establish a better title. See the case of KAIGAM V. NAMNAI (1997) 3 NWLR (Pt. 495) 549; MADU V. MADU (2008) ALL FWLR (Pt. 423) 1217. PER ITA G. MBABA J.C.A

REVOCATION OF RIGHT OF OCCUPANCY: WHETHER THE HOLDER OF THE LAND MUST BE SERVED WITH THE REVOCATION NOTICE FOR THERE TO BE A VALID REVOCATION OF RIGHT OF OCCUPANCY

RESPONDENT’S NOTICE: CIRCUMSTANCE WHERE A RESPONDENT OUGHT TO FILE A RESPONDENT’S NOTICE

The law is that, where a Respondent seeks to move the Appellate Court to affirm the decision of the lower Court, but on a different ground, other than the ground(s) relied upon by the trial judge, the Respondent ought to file a Respondent’s notice to that effect and outline the said ground he wants to rely on, which the lower Court did not consider. See Order 9 Rule (1) and (2) of the Court of Appeal Rules, 2011; See also the case of Adamawa State House of Assembly 2 ors V. Chubado Batti Tijjani and 23 Ors (unreported decision of this Court) in CA/J/304m/2009, delivered on 20/1/2011. PER ITA G. MBABA J.C.A

EVIDENCE OF A WITNESS: WHETHER THE EVIDENCE OF A WITNESS IN AN EARLIER PROCEEDING IS RELEVANT IN A LATER TRIAL

By law, evidence given in a previous suit cannot be relied upon in a subsequent proceeding without compliance with section 34 (1) of the Evidence Act. See the case of SODIPO V. OGIDAN (2008) 4 NWLR (Pt.1077) 342 held 6, where Ogunbiyi JCA held: “Evidence of a witness in an earlier proceeding is not relevant in a later trial, except for the purpose of cross examination and for that purpose only…” See also OBAWOLE V. COKER (1994) 6 SCNJ 20; ABUBAKAR V. JOSEPH (2008) 13 NWLR (part 1104) 307. PER ITA G. MBABA J.C.A

JUSTICE

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

Between

ALHAJI MOGAJI ABUDU LATEJU – Appellant(s)

AND

DR OLU FABAYO – Respondent(s)

ITA G. MBABA J.C.A., (Delivering the Leading Judgment): This is an appeal against the final decision of Hon. Justice H.O. Ajayi of Kwara State High Court in suit No. KWS/85/2004, delivered on 29/10/2008, wherein his lordship found for the Respondent as follows:
(a) That the plaintiff (now Respondent) is the owner of the land in dispute located off the university of Ilorin permanent site, subject matter of Certificate of Occupancy No. KW5540;
(b)That the entry of the Defendant (Appellant herein) on the land constituted trespass;
(c) N50, 000.00 (fifty thousand Naira) to the Respondent as damages for trespass;
(d) An order restraining the Appellant, his agents, privies and any other person from further trespassing on the Respondent’s land.
The Respondent’s claim at the lower court had prayed for the above reliefs, and in respect of damages, had sought N100,000.00 (one Hundred Thousand Naira) and had also prayed for an order setting aside the purported sale of the plaintiff’s land to the 2nd Defendant by the 1st Defendant. (Pages 3-5 of the Record).
Being dissatisfied with the whole decision, the Appellant filed this Appeal on 25/11/2008 and raised eight (8) grounds of Appeal as shown on Pages 131 to 135 of the Record of Appeal.
Appellant filed their Brief of Argument on 21/5/09 and formulated eight (8) issues for determination, each on each ground of the appeal, as follows:
(1). Whether the trial High Court was right to have found that Certificate of Occupancy dated 30/9/2005 (sic) (Exhibit P1) was valid and existent in view of the letter of revocation, (Exhibit 2) dated 15/2/2005 issued by the Kwara State Ministry of Lands and Housing, Ilorin.
(2) Whether all what the Plaintiff was required to prove was to produce and tender Exhibit P1.
(3) Whether the trial High Court was right in holding that evidence of the Defendant (now Appellant) that his family protested that the Kwara State Government cannot use the family land to compensate the family for the purported acquisition of their family land amounts to the family rejection of the land released to the family vide Exhibit D2
(4) Whether the trial High Court was right when it found that the Defendant was claiming the land only on the ground of being a family land.
(5) Whether the Respondent had been in peaceful possession of the land in dispute since 1986.
(6) Whether Appellant trespassed on the land by entering the land based of Exhibit D2.
(7) Whether the trial court was right when it found that there was no evidence either by the Claimant or the Defendant that Exhibit P1 was at any time revoked
(8) Whether the Judgment in Suit No. CUF/93/2003 (Exhibit D1) was relevant to this suit or not.
The Respondent, on his part, filed his Brief of argument on 21/10/10 and the same was deemed duly filed on 19/4/2011. The Respondent adopted the issues for determination as formulated by the Appellant.
This Appeal was heard on 12/10/11 when the learned Counsel on each side adopted and relied on their Briefs, and the Appellant also relied on his Reply Brief filed on 21/4/11. They urged the Court accordingly.
A brief facts of this case shows that the Claimant (Respondent) was allocated the land in dispute by the Kwara State Government, as per Certificate of Occupancy No. 5540 of 30/9/86, the same being the subject matter of survey plan No. KWDP. 65. He enjoyed peaceable possession of the land, until March 2004, when the 1st Defendant challenged the Claimant therein, and caused his arrest and prosecution at the Upper Area Court 1, claiming the land to be part of a larger land of the 1st Defendant’s family, which they had earlier released to Government for the purpose of building a dam (Agba Dam). They (Defendant’s family) said that recently they found that people had developed structures on their said family land without their consent, claiming to have been allocated same by the Government; that they (Defendant family) went to the Government to ask why, and to challenge Government. The Defendant said that the Government then released part of their said family land to them, and that the portion of the land in dispute is part of the land the Government released to them (Defendant’s family). The Defendant denied attempting to settle the dispute over the land with the Claimant or demanding and collecting some money from the Claimant to settle the 2nd Defendant whom the Claimant said 1st Defendant had sold the land to. (Originally, there were two Defendants in the case but the Claimant later applied to withdraw against the 2nd Defendant).
The court found that the Respondent was duly allocated the land by the Government and, that he was, in fact, in possession of same, and so held against the Appellant for trespass.
I think the 8 issues formulated by the Appellant can be reduced, as many of the issues appear to relate to one and the same thing. For instance, issues 1, 2, 5, and 7 relate to the question about the validity of the Certificate of Occupancy with which the Respondent claimed right of possession of the land, whereas issues 3, 4, 6 and 8 relate to the defence which the Appellant canvassed to justify their entry into the land. I shall therefore consider this appeal on two main issues which I think, are embracive of the eight (8) issues formulated by the Appellant. These are:
(1) Was the trial judge right in relying on the Certificate of Occupancy issued to the Respondent in 1986 to award him the land, in the circumstances of this case?
(2) Did the claim of the Appellant that the land was his family land which the Government later released to them, justify the Defendant’s entry into the land to recover same?
Appellant’s Counsel, F.B. Fabiyi Esq (who settled the Brief), argued Appellant’s issues 1 and 2 together and submitted that the trial court was wrong to have held that Exhibit P1 (Certificate of Occupancy No. KW 5540 of 30/9/86) was still valid and existent, despite the issuance of Exhibit D2 (Letter of the release of the land purportedly covered by Exhibit P1) to the Appellant dated 15/2/05). Counsel said that Exhibit D2 was issued after the Ministry of Lands and Housing must have revoked any existing right, that may have existed under Exhibit P1; that Exhibit D2 was issued 19 years after, Exhibit P1 by the same Authority; that it supersedes Exhibit P1, especially as there was no evidence that there was any further official transaction between the Respondent and the Ministry of Lands and Housing or the Kwara State Government (e.g. payment of rent); that the Ministry of Lands and Housing (Government) released the Land in dispute to the Appellant, through the Exhibit D2, consequent to his family protest to the Ministry that the land had not been properly acquired.
Counsel submitted that Exhibit D2 had revoked all existing rights or title which the Respondent had on the land, vide Exhibit P1; that by virtue of section 28 of the Land Use Act, the Kwara State Government has power to revoke exiting title or right already conferred on any person as per Exhibit D2; that the Respondent had the duty to establish before the trial Court that his right or title to the land in dispute was still valid and subsisting, after the issuance of Exhibit D2. And he should have done this by calling the grantor as witness or tendering document to establish official transaction or business between himself and the Kwara State Government, after the issuance of the Exhibit D2; that he (Respondent) failed to do this!
Counsel relied on section 135 and 139 of the Evidence Act – that he who asserts must substantiate his assertion with concrete evidence. He also relied on the case of ODI v. IYALA (2004) 8 NWLR (pt. 875) 283 at 315; NEKA BBB. MFG Co. LTD v. ACB LTD (2004) 2 NWLR (Pt. 858) 521 at 594; TUKURU V. SABI (2005) 3 NWLR 544 at 569; NWPA V. OLAGUNJU (2005) 3 NWLR (pt. 913) 602 at 626.
Counsel further submitted that mere production of Exhibit P1, without other concrete evidence to discountenance Exhibit D2, was not sufficient or strong enough to entitle the Respondent to the declaratory relief he sought; that Respondent had told the court he had some receipts in his possession to show that he had transaction with the Ministry of Land and Housing, after the issuance of Exhibit P1, but failed to produce or tender them; that that failure to tender the documents worked against the Respondent, because the withheld documents would be against him, if tendered; that the Respondent had some facts to hide keeping away such documents, or that they never existed! He relied on section 14 of the Evidence Act; YESUFO V. ACB LTD (1981) ANLR 293 at 309.
Counsel further said that it was not the duty of the Appellant to show that the Respondent had been issued a revocation notice; that by Section 150 of the Evidence Act, the acts of the Ministry of Lands and Housing are presumed to be regular before the issuance of Exhibit D2, as the Ministry is presumed to have complied with all the necessary procedure or internal rules before issuance of Exhibit D2.
On issues 3 and 4, Counsel for the Appellant submitted that the trial Court was wrong to hold that the Appellant’s family had rejected the portion of land released to them vide Exhibit D2, when the family protested to the Ministry of Lands and Housing that the whole Land of the Appellant’s family be released to them: that there was no evidence that the Appellant’s family rejected the Land released to them in Exhibit D2; that his family was the traditional and customary owner of the land in dispute and had been so adjudged the customary owner of all the family land, measuring 309 hectres (wherein the land in dispute situates) by a competent court in suit No. CUF/93/2003; that it would amount to travesty of Justice to hold that Appellant’s family protest, to demand for release of their whole family land, amounted to rejection and forfeiture of the right and title to the plots of land released to them, through Exhibit D2; that after all, the Court had reviewed the content of Exhibit D2 and held:
“From the above stated content of Exhibit D2, the Ministry of Lands and Housing, Ilorin, had released to the family of the defendant (Appellant) the claimant’s (Respondent) allotted land, among other plots of land, the said plot of land having been released to the family in lieu of compensation to the family.” (Page 120, lines 1-4 of the Record).
Counsel relied on the case of IROLO V. UKA (2002) 14 NWLR (pt. 786) 195 at 238, on the meaning of perverse decision, and said that the decision of the trial Court, not having been based on the evidence before it, but rather on a matter which the trial court ought not to have taken into consideration, occasioned a miscarriage of Justice.
Counsel added that the Appellant did not only claim the land on the ground of being family land, but also based on Exhibit D1 and D2, which were issued to the Appellant, after the issuance of Exhibit P1; that there was evidence that Exhibit D2 released the land to his family, while his family was also declared by competent court as bonafide owner of the expanse of land within which the land in dispute is situate. See pages 126 lines, 4-14; 128 lines 9-11 of the Record.
On their issues 5 and 6, Counsel for the Appellant submitted that the trial court was wrong to hold that the Respondent had been in peaceful possession of the land in dispute since 1986, because there was no evidence to establish that; that the Appellant had testified that his family had been carrying on farming activities on the land and that it was in 2004, when the Respondent commenced construction work on the land that Appellant challenged him – (page 25 lines 1-5 and 16- 19 of the Record); that the Respondent told the Court he opted to settle, and even paid some money to the Appellant in a bid to purchase the land from the Appellant’s family (page 16 lines, 21 – 25 of the Record).
Counsel queried why the Respondent would pay for what rightly belonged to him? And urged us to conclude that Respondent’s act of making payment (how be it part payment) amounted to admission of the Appellant’s ownership of the land; that under section 75 of the Evidence Act, that constitutes an admission against interest by the Respondent. He relied on the case of ODEJEGBA V. ODEJEGBA (2004) 2 NWLR (Pt. 858) 566 at 583.
Thus, Counsel submitted, it was wrong for the trial court to hold that the Appellant’s entrance on the land in dispute constituted trespass, when in fact; Appellant had established that his family was traditional and customary owner of the land.
On issue 7, Counsel submitted that the trial Judge was wrong in holding that there was no evidence that Exhibit P1 was at any time revoked, when indeed the Appellant had told the court that he was issued with Exhibit D2 by the Kwara State Ministry of Land and Housing, and that Exhibit D2 amounted to revocation of the Respondent’s title to the land that Exhibit D2 was superior to Exhibit p1 (page 32 lines 19 – 29 of the Record).
Counsel said that the Respondent did not controvert that aspect of evidence by the Appellant and that that amounted to admission. He relied on the case of HARY FARMS LTD & Ors V. M/V MAHTRA (SISTER VESSEL) & Ors (2007) 6 SC (Pt.11) 85 at 114; IYERE V. Bendel & FLOUR MILL LTD (2008) 7-12 SC 151.
On their issue 8, Counsel for the Appellant urged us to hold that the trial court was wrong to have held that the judgment in suit No. CUF/93/2003 (Exhibit D1) was not relevant to this case, when the subject matter of this suit constituted part of the subject matter in suit No. CUF/93/2003, which judgment is still subsisting? He relied on sections 6 and 52 of the Evidence Act – that judgment and orders of courts are relevant where they are fact in issues.
Counsel urged us to resolve the issues in favour of the Appellant.
Replying, the Respondent’s Counsel, Manzuma Issa Esq. (who settled the Respondent’s Brief), on Appellant’s Issues 1 and 2, submitted that the trial court was right to have found that the Certificate of Occupancy (Exhibit p1), issued to the Respondent in 1986, was valid and extant; that the only known procedure for revocation of certificate of occupancy is as provided by section 28 of the Land Use Act, 1978; that Exhibit D2 is unknown to section 28 of the Land Use Act; that there is nothing like a letter of release of Land (covered by certificate of occupancy) under the Land use Act, which has the consequence of revoking a certificate of occupancy. He relied on the section 28 (6) (7) of the Act on the only notice that can revoke a right of occupancy. He also relied on CSS Bookshop Ltd. v. The Registered Trustees of Muslim Community in Rivers & Ors (2006) 4SC (Pt.11) 142, 160 – 62.
Counsel submitted that Exhibit D2, not being a notice of revocation of right of occupancy as required by law (section 28 (6) (7) of the Land use Act), cannot revoke the Respondent’s right of occupancy. He further submitted that, where a notice of revocation is validly issued, under the Act, it has to be served on the party personally.
Counsel further submitted that the Respondent had discharged the burden of proof on him as required by law and referred us to paragraph 8 of the statement of claim (page 4 of the Record) as well as paragraph 7 of the statement of the Respondent on oath on (page 17 of the Record) which, he said, were not challenged by the Appellant. He relied on the case of DABO V. ABDULLAHI (2008) ALL FWLR (Pt.255) 1039, that all a claimant reeds to do in proving the existence of certificate of occupancy is by tendering it in Court. He also relied on the case of ANYANKW-OKO V. OKOYE & Ors (2010) SC (Pt.11) 30 at 49.
Counsel added that since Exhibit D2 was purportedly issued to the Appellant 19 years after the Respondent was issued with the Exhibit P1, the burden was on the Appellant to prove that Exhibit P1 had been revoked before the Exhibit D2 was issued, because the law does not contemplate of two competing titles existing on the same piece or parcel of land. He relied on the case of ODI V. IYALA (supra); NEKA B.B.B. MFG Ltd V. ACB Ltd (supra); TUKURU V. SABI (supra) – al cited by the Appellant.
Counsel further relied on the case of ELEMA V. AKENZUA (2000) 6 SCNJ 226 at238, on the appropriate burden of proof in this case, where it was held that while the burden of proof in civil cases initially lies or the Plaintiff, the proof or rebuttal of issues which arise in the course of the proceedings may shift from the claimant to the defendant and vice – versa, as the case progresses. Thus, whereas the Respondent had produced Exhibit P1 and proved that it was subsisting, it was the duty of the Appellant to lead evidence to debunk the Exhibit P1 and prove that it had been revoked, by calling credible evidence to prove it. Counsel submitted that the provision of section 14 of the Evidence Act can not apply to favour the Appellant in the circumstance, especially as the Record of Appeal (pages 44 – 51 and 85 – 87) shows the circumstance that prevented the Respondent from producing the receipts/documents complained of.
Further more, Counsel submitted that the issue of withholding evidence was never raised and pronounced upon by the trial court, and is being raised for the first time before this court and with out leave of this court; and that the issue is not covered by any of the grounds of appeal nor issue for determination, and so should be discountenanced. He relied on NWANKWO & ANOR V. (EDSC) U.A. (2007) 1-2 SC 145 at 160 and 180; OGBE V. ASADE (2009) 12 SC (Pt 111) 34 at 55-57 Counsel further argued that assuming (but not conceding) that the Respondent had not been paying ground rent on the land, that was not the business of the Appellant, since that only entitled the Government to revoke the right of occupancy, (which the Governor has not done in this case).
On the issues 3 and 4, Counsel for the Respondent submitted that the trial court was right in holding that the Appellant’s family had rejected the portion of land released to them vide Exhibit D2, when the family protested to the Ministry of Land and Housing that the whole of the Appellant’s family land be released to them. He relied on paragraph 1 (k) of the statement of defence (page 26 of the Record) and the evidence of the Appellant (pages 29 – 33 of the Record). See also page 101 of the record, where the Appellant said:
“we are arguing that they cannot use our land to pay us, yes, we rejected the suggestion by the Ministry of Lands to use our Land to compensate us.”
Thus, Counsel said Appellant was consistent that his family had rejected the idea of using the family land to compensate the family by virtue of exhibit D2, contrary to the submission of Appellant’s Counsel. Counsel said that that was a clear admission against interest and cannot be rescinded from, on appeal. He relied on SEISMOGRAPH SEVICES NIG LTD V. CHIEF KIKE OGBEKWE EYAUFE (1976) 9 – 10 SC. 135 at 146. Counsel added the case of IROKO V. UKA (supra) was inapplicable, as the court in this case relied on the statement of defence and the evidence by the Appellant to hold as it deed.
On issues 5 and 6, Counsel for the Respondent submitted, that the trial Judge was right to have held that the Respondent had been in peaceful possession of the land since 1986. He relied or paragraph 5 of the statement of claim (page 3 of the Record) and Paragraph 3 of the statement of Respondent on oath (page 16), and submitted that these averments and the evidence of the Respondent on this were not challenged. Counsel added that it was, in fact, the Appellant that approached the Respondent for settlement and demanded for N75, 000.00 from the Respondent to pay off the person to who in the Appellant had wrongly sold off the plaintiff’s land; that the Respondent agreed to that proposal, thinking it would save him the trouble of litigation and disturbance from land speculators. Counsel also referred us to page 32 of the Record (Appellant’s, averments on oath) where Appellant denied ever collecting money from the Respondent! But he submitted that Appellant Counsel’s submission on this was an attempt to take the advantage of the payment, suggesting, the Appellant, in fact, collected the money! Counsel submitted that the allegation of the Respondent admission against interest was therefore unfounded, that the Respondent could not have waived his right to the certificate of occupancy duly issued to him, even if he had acted ignorantly in a bid to avoid disturbance.
On issues 7, Counsel submitted that there was no evidence of revocation of the Respondent’s certificate of occupancy, guided by section 28 of the Land use Act, and the notices stipulated therein for such purpose.
On issue 8, Counsel submitted that the trial Judge rightly held that Exhibit D1 was not relevant to this case because it was not between the Appellant and the Respondent; that the Upper Area Court also had no jurisdiction to adjudicate on a piece of land covered by certificate of occupancy. He relied on section 39 of the Land Use Act and said that sections 6 and 52 of the Evidence Act are not applicable to this case,
He urged us to hold against the Appellant and dismiss the Appeal.
I have earlier compressed the Appellant’s eight (8) issues for determination into two. The 1st issue formulated which takes care of Appellant’s issue 1, 2, 5 and 7, is whether the trial court was right in relying on the certificate of occupancy issued to the Respondent in 1986 to award him title to the land, in the circumstances of this case.
In his argument, learned counsel for the Appellant had submitted that mere production of the certificate of occupancy (Exhibit P1) by the Respondent was not enough, considering the letter (Exhibit D2) by the same Ministry of Lands and Housing, dated 15/2/2005, which released to the Appellant their family land, of which the land in dispute (Exhibit P1) was part; that the Respondent needed to have proved, with concrete evidence, that the Exhibit P1, issued to him was still valid, or his right/title to the land was still subsisting, after the issuance of the Exhibit D2 to the Appellant; that he (Respondent) should have called the grantor or tender documents to establish official transaction or business between him and the Kwara State Government after the issuance of Exhibit D2 to the Appellant.
The legal status of the Exhibit P1 as certificate of occupancy issued by the Military Governor of Kwara State on 30/9/86 to the Respondent in respect of the land in dispute was never disputed by the Appellant, who had given evidence to show that the Government had acquired their said land (though they now complain of nonpayment of compensation or adequate compensation). See pages 18 to 21 (and paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 of the statement on oath of the Appellant filed on 13/3/07 pages 29 to 33) of the Record.
The Military Governor derived power under the Land Use Act, 1978, to grant statutory right of occupancy to the Respondent and the grant was subject only to the rules stipulated in the Act, with regard to revocation of the grant, if any. By section 28 of the Land Use Act, clear procedures are stipulated as to how a certificate or right of occupancy can be revoked and by who, as follows:
28 (1) “It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest”
Sub-section 2 of that section gives the meaning of the term overriding public interest for which a right of occupancy or deemed right of occupancy can be revoked. Sub-section 5 stipulates the grounds on which a statutory right of occupancy can be revoked, while sub-sections 6 and 7 state as follows:
“(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly anthorised in that behalf by the Governor and notice thereof shall be given to the holder.
(7) the title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection 6 of this section or on such later date as may be stated in the notice.”As rightly pointed out by learned Counsel for the Respondent, there is nothing in that provision that suggests or supports the claim of the Appellant i.e. that the issuance of a letter of release of land (effectively covered by a statutory right of occupancy, endorsed by the Governor of a State) to a 3rd party or to an original customary owner, without notice to and knowledge of the person who was granted the right of occupancy, can revoke the Certificate of Occupancy.
Exhibit D2 relied upon by the Appellant was issued by one B.M. Eletu on 15/2/2005, who signed same for Honourable Commissioner, Ministry of Lands and Housing, Kwara State. It was addressed to Magaj Abdul Olataju family and stated as follow:
“RELEASE OF 28 PLOTS OF LANDS AT TPS 153 ILORIN
Following the resolution reached at the end of the series of meetings on the non payment of compensation fee on land acquired by the State Government (part of the layout tagged TPS 153), I am directed to inform you that the following plots are hereby released for your family use in lieu of compensation:
S/No.     Block     Plots     Description
1.    7    Plots    1&2
2.    8    Plots    1
3.    10    Plots    3&17
4.    11    Plots    10, 12, 16, 18 & 20
5.    12    Plots    19
6.    13    Plots    4, 26 & 28
7.    15    Plots    9, 19 & 21
9.    17    Plots    6, 4 & 10
10.    18    Plots    13 & 15
11.    32    Plots    1 and 2
12.    Misc. 165 Plots     4
I am further directed to request you to come forward for site identification.
Signed
B.M. Eletu
For: Honourable Commissioner”
It is legally impossible for the above letter to pass for a revocation of the Respondent’s statutory right of occupancy, under section 28 (6) (7) of the Land Use Act, even if the Respondent’s land is adjudged to be part of the land purportedly released to the family of the Appellant by Exhibit D2. Apart from the absence of evidence that the alleged release of the land (EXHIBIT D2) was done “signified under the hand of a public officer duly authorized in that behalf by the Governor,” evidence shows that no notice of the same was given to the holder of the land (Respondent).
I think the Appellant was grossly in error to have submitted that it was the duty of the Respondent to call evidence to establish that the certificate of occupancy or right of occupancy, issued to him remained valid, or had not been revoked, upon the issuance of Exhibit D2 to the Appellant. That burden resided and remained with the Appellant, who sought to use Exhibit D2 to debunk the claim of the Respondent in Exhibit P1. Of course, the Exhibit D2 cannot, itself, also amount to revocation of the Respondent’s right of occupancy, as it falls far short of the requirements of section 28 (6) and (7) of the Land Use Act, 1978.
By law, mere production of certificate of occupancy is a prima facie evidence of title, until the adverse party can establish a better title. See the case of KAIGAM V. NAMNAI (1997) 3 NWLR (Pt. 495) 549; MADU V. MADU (2008) ALL FWLR (Pt. 423) 1217.

There can also not be a valid revocation of right of occupancy, where the holder of the land has not been served with the revocation notice, duly issued, under the Section 28 of the Land Use Act, 1978. (JEGEDE V. CITICON NIG LTD (2001) 3 WRN1)It is even absurd for the Appellant to place such reliance on Exhibit D2 and claim same to have been evidence of the revocation of the Respondent’s right of occupancy (Exhibit P1) on the land, when, in fact, the Appellant had even rejected the offer in the Exhibit D2, on the ground that the Government could not use the same (that is releasing part of their land) as compensation for their family land acquired by Government. They had insisted on the release of the whole of their family lands. See page 101 of the Record where the Appellant said:
“We are arguing that they cannot use our land to pay us, yes, we rejected the suggestion by the Ministry of Lands to use our land to compensate us.”
See also pages 26 and 29-33 of the Record, where the Appellant stated their rejection of the Exhibit D2 and asked for the whole of their land to be released to them. Of course, the findings of the learned trial Judge on that point was right, that the Appellant had rejected the gesture of the Government in the Exhibit D2, as the Appellant saw the same as an attempt to use their land to compensate them for their family land acquired by Government.
The evidence of the Respondent’s right and effective possession of the land since 1986, after the issuance of the certificate of occupancy, was also upheld by the trial judge, when he said:
“From the evidence of the claimant and the defendant, I am of the view that since the claimant was issued with the certificate of occupancy No. 5540 dated 18/1/85 (sic) he has a valid title to the land and in as much as the title subsists with out being revoked by the issuing authority, then the defendant’s challenge to the claimant over the land would amount to trespass..”
Of course, the Respondent had pleaded various uses of the land before the Appellant challenged him in 2004, and the Appellant also supported this when he admitted that some construction work was done on the land at the time he (Appellant) caused the Respondent to be arrested on the land.
I think the Appellant also displayed some mischief and tried to be smart, when Appellant’s Counsel sought to use the fact of the Respondent’s admission of payment of some money to the Appellant in pursuance of their attempt to settle the dispute, upon the demand by the Appellant to pay off the person he (Appellant) had sold the land, as evidence of acknowledgment of Appellant’s ownership by the Respondent!
Learned Counsel for the Appellant had asked.
“… Why should the Respondent paid (sic) for what he claimed rightly belonged to him? The conclusion which my lords should draw is that the Respondent’s act in making payment (how be in part payment) amounts to admitting the Appellant’s ownership of the land, which, under Section 75 of the Evidence Act, constitutes admission against the Respondent’s interest. (See paragraph 7.04 of the Appellant’s brief)
While making that submission, Appellant appeared to have forgotten that he (Appellant) had earlier denied both the circumstance of the payment and the payment! (See page 32 of the Record – paragraphs 22 to 24 of the Appellant’s statement on oath.)
This Court cannot draw such conclusion suggested by the Appellant, as it is obvious the Appellant opted for that settlement and must have misled the Respondent to believe that the effort would save him the litigation and further disturbance.
I therefore agree with the learned trial judge that in so far as the Exhibit p1 remained valid and subsistent as the Exhibit D2 could not revoke the right of occupancy of the Respondent, it vested the Respondent with the right/ title to the land in dispute.
I therefore resolve this issue against the Appellant.
Issue 2
Did the claim of the Appellant that the land was part of their family land, which the government later released them, justify the Appellant’s entry to recover it from the Respondent?
Of course, the Appellant had made pathetic submissions which showed that the land in dispute was part of their family land, which they had released to government for a Dam project and which the government subsequently accepted to release back (part of their said customary land) to them, as per Exhibit D2, having failed to pay compensation on the land acquired from the family for the dam project. Exhibit D2 tends to support the claim of the Appellant, as to the acquisition of their family land without compensation by Government. Even the findings of the trial Judge was to the effect that “from the content of Exhibit D2 the Ministry of Lands and Housing, Ilorin, had released to the family of the Defendant the claimant’s allotted land among other plots of land, the said plots having been released to the family in lieu of compensation to the family”
(See page 120 lines 1-4 of the Record)
That, however, would not entitle the Appellant to enter the allotted land of the Respondent, without his consent and I or authority, since the purported release of the Respondent land to the Appellant did not amount to anything substantial in law, by reason of the defects earlier out lined in this judgment, relating to non-revocation of the Respondent’s right of occupancy on the land. Moreover, this suit was not one by Appellant challenging the Government for taking their Land, without compensation.
The said letter by the Ministry of Land and Housing must have misled the Appellant to take the unlawful step which resulted in the trespass on the Respondent’s land. He may have the author of the letter (Exhibit D2) to blame for his confusion and misadventure, but that cannot excuse his act of trespass.
The Appellant had also sought to rely on the Exhibit D1 – the judgment in suit No. CUF/93/2003 to establish his family right to the land, saying that the Judgment there-of, awarding the land to the family, was subsisting order of a competent court; that the learned trial judge was wrong to have held that the said judgment in CUF/93/2003 was not relevant.
Replying to that issue learned Counsel for the Respondent had submitted that the Upper Area court which gave the decision in CUF/93/2003 had no jurisdiction to adjudicate on a piece of land covered by a certificate of occupancy, and had relied on section 39 of the Land Use Act 1978.
With due respect to the learned Counsel for the Respondent, I think that answer sought to introduce an issue not raised by the trial court in its judgment and not raised in the grounds of Appeal, nor in any of the issues formulated by the Appellant.
The law is that, where a Respondent seeks to move the Appellate Court to affirm the decision of the lower Court, but on a different ground, other than the ground(s) relied upon by the trial judge, the Respondent ought to file a Respondent’s notice to that effect and outline the said ground he wants to rely on, which the lower Court did not consider. See Order 9 Rule (1) and (2) of the Court of Appeal Rules, 2011; See also the case of Adamawa State House of Assembly 2 ors V. Chubado Batti Tijjani and 23 Ors (unreported decision of this Court) in CA/J/304m/2009, delivered on 20/1/2011.The Learned trial Judge had, however, made a well considered ruling and rightly so, in my view, on the applicability of the said Exhibit D1 (suit No. CUF/93/2003) to the case at hand, when he came to the conclusion that the same was not relevant. I think he was right.
By law, evidence given in a previous suit cannot be relied upon in a subsequent proceeding without compliance with section 34 (1) of the Evidence Act. See the case of SODIPO V. OGIDAN (2008) 4 NWLR (Pt.1077) 342 held 6, where Ogunbiyi JCA held:
“Evidence of a witness in an earlier proceeding is not relevant in a later trial, except for the purpose of cross examination and for that purpose only…”
See also OBAWOLE V. COKER (1994) 6 SCNJ 20; ABUBAKAR V. JOSEPH (2008) 13 NWLR (part 1104) 307.Of course, the Appellant was trying to place reliance on the said judgment in CUF/93/2003, as if the same amounted to a defence of res judicata. But he did not plead or state so. Even then, that would still not apply, as the Respondent was not a party to the suit in Exhibit D1, and the same did not relate to him. The trial Judge, at the lower Court, had held as much, as per his findings on pages 126 to 128 of the Record, which findings have not been disputed or appealed against.
I therefore resolve this issue too against the Appellant and hold that this appeal fails and is hereby dismissed.
I affirm the Judgment of the trial judge in suit No. KWS/85/2004, delivered on 29/10/2008.
Each party to bear own cost.

TIJJANI ABDULLAHI (PJ), JCA: I read in draft the lead judgment just delivered by my learned brother, I.G Mbaba, JCA. I agree entirely with the reasoning and conclusion arrived thereat. However in support of the judgment the following points are hereby made.
There is nothing like a letter of release of land covered by a certificate of occupancy under the Land use Act which has the consequence of revoking a certificate of occupancy as vigorously canvassed by the learned counsel for the appellant. The only notice which could revoke a right of occupancy is as provided for under section 28 (6) (7) of the Land use Act. The notice envisage in the said section must be served personally on the holder of the certificate of occupancy. See C.S.S. Bookshop Ltd V. Registered Trustees of Muslim Community in Rivers and 3ors (2006) 45 (pt.11) 142, 160-162.
A cursory look at Exhibit D2 would reveal the fact that it is not a notice of revocation as contemplated by section 28(6) (7) of the Land Use Act. This being the case, the said Exhibit cannot revoke the respondent’s certificate of occupancy.
For these reasons and the more detailed ones ably and fully set out in the lead judgment, I too dismiss the appeal as lacking in merit and abide by the consequential order(s) contained therein

JUSTICE JOSEPH SHAGBAOR IKYEGH: I concur in the succinct judgment delivered by my learned brother, Mbaba, JCA, which I had the benefit of reading in advance.
There was no valid revocation of the certificate of occupancy, Exhibit P1, dated 30th September 1986, issued to the respondent by the Governor of Kwara State, the grantor, to take life out of Exhibit P1 before the piece of land covered by it was re-allocated or released by the Ministry of Lands and Housing, Kwara State, in Exhibit D2 to the appellant on 15th February, 2005, some nineteen years after Exhibit P1 was issued to the respondent as the lawful occupier of the plot of land.
Revocation of certificate of occupancy must be by a positive act. The positive act of revocation must be communicated to the occupier of the plot of land before the act of revocation would be accomplished. It is not done by way of letter of release or re-allocation as happened in Exhibit D2, without affording the occupier of the plot of the land the opportunity to be heard before the revocation was made- see Obikoya and Sons Ltd. v. Governor of Lagos State (1987), 1 NWLR (pt.50) 385, L.S.D.P.C. v. Foreign Finance Corporation (1987) 1 NWLR (pt.50) 413 and J. Olat Majiyagbe v. Attorney-General and others (1957) N.R.N.L.R 158.
For the reasons stated (supra) and the fuller reasons contained in the judgment of my learned brother, Mbaba, JCA., I too see no merit in the appeal and hereby dismiss it and abide by the consequential orders stated therein.
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Appearances

F.B. Fabiyi Esq.For Appellant

AND

Manguma Issa Esq.For Respondent