ALHAJI MOHAMMED MAKINTA v. BABA M. AJI
(2019)LCN/13510(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of June, 2019
CA/J/180/2016
RATIO
LAND LAW: DECLARATION OF TITLE TO LAND: A PARTY CLAIMING OWNERSHIP MUST SUCCEED N THE STRENGTH OF HIS CASE AND NOT THE WEAKNESS OF THE DEFENDANTS CASE
It is settled law that in an action for declaration of ownership to land, a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party?s case. Where this onus is not discharged the weakness of the other party’s case will not entitle him to Judgment and the proper Judgment is for the other party. See Lawal v Akande (2009)2 NWLR (Pt.1126) 425, Chwukwu v Amadi (2009)3 NWLR (Pt.1127) 56, Usung v Nyong (2010)2 NWLR (Pt.1177) 83, Ogunjemila v Ajibade (2016) 11 NWLR (Pt.1206) 559. The claimant must prove to the satisfaction of the Court that he has better title than the defendant and the standard of proof is on a balance of probabilities. See Abaye v Ofili (1986)1 NWLR (Pt.15) 134, Akintola v Solano (1986)2 NWLR (pt.24) 298, Eyo v Onuoha (2011)11 NWLR (pt.1257)1 and Momoh v Umoru (2011)15 NWLR (Pt.1270) 217.PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
ALHAJI MOHAMMED MAKINTA Appellant(s)
AND
BABA M. AJI
(Representing all the heirs/beneficiaries of the estate of late Aji Ahmed) Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Borno State in Suit No. BOHC/MG/CV/24/2017. The Appellant herein had taken out an originating summons which the lower Court directed that in view of the contentious issues raised therein, the suit be contested on the basis of pleadings and ordered pleadings be filed.
The Claimants Statement of Claim dated 17th day of August, 2015 contained 19 paragraphs. The reliefs claimed against the defendant are as follows:
i) A declaration that, the claimant is entitled to the right of occupancy in the property contained in BO/48431.
ii) An order for immediate possession against the defendant in respect of the 2 bedroom bungalow occupied by him.
iii) An order of perpetual injunction restraining the defendant, his agents, servants or privies from any further acts of trespass in the claimants property.
iv) Costs of this suit.
The defendant on the other hand denied the claim and filed a 6 paragraph statement of defence, on the 7th day of September, 2015.
The brief facts of the
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claimants case as can be gleaned from the statement of claim are as follows: in the year 2002, claimant applied and obtained approval from Borno State Government to purchase the property known as Kamfut quarters situate at Hilman Road, off sir Kashim Road, Maiduguri at the price of N1,000,000.00. The property contains two sets of two bedroom flats with two shops and boys quarters. Upon payment of the purchase price, a Deed of Assignment was executed and subsequently, a Certificate of Occupancy No. BO/48431 was granted the claimant by Borno State Government over the property. The claimant alleges that he has been paying all charges due on the property up to 2015. That he recently wanted to develop the property and discovered the Defendant is occupying one of the flat. Upon inquiry through his lawyer, claimant was briefed that the Defendant and others are heirs to one Aji Ahmed now deceased who claims to have bought the flat the Defendant occupies.
On the part of the defendant the facts as disclosed in the Statement of Defence run thus: In addition to denying the claimant?s claim on all material facts, the Defendant avers he is heir to Late Aji
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Ahmed. Late Aji Ahmed was a staff of Borno State Government and was allocated one of the bungalows at Kamfut quarters as official residence in 1992. In the year 2002, pursuant to owner/occupier policy of Borno State Government. The late Aji Ahmed was sold the bungalow he occupied as official resident by the Borno State Government, since 1992, the family of late Aji Ahmed has been in possession of the two bedroom bungalow in the said Kamfut quarters. The defendant alleges that the claimant misrepresented facts to Borno State Governor to purchase the property and therefore was fraudulent.
Following the filing of pleadings as ordered by the lower Court, trial commenced with appellant testifying and called one witness in proof of his claim. The Respondent also testified and called one witness in his defence. Several Exhibits were tendered and admitted, while two were rejected by the trial Court. At the close of evidence, final written addresses were ordered, filed and adopted by both counsel. The learned trial Judge thereafter entered Judgment in favour of the Respondent and dismissed the Appellant?s claims in its entirety. Not satisfied with the said
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Judgment delivered on 23/03/2016, Appellant lodged an Appeal to this Court vide his Notice of Appeal filed on 28/04/2016 containing two grounds of appeal.
In compliance with the rules of Court, parties exchanged their Briefs of Argument. Appellant?s brief of Argument settled by A.A. Sani Esq., was dated 10/01/2018 and filed on 22/01/2018 but deemed properly filed on 28/02/2018. While the Respondent?s Brief settled by Nankham Ayuba Dammo Esq., was dated 02/03/2018 and filed on 20/03/2018. When the appeal came up for hearing both counsel adopted their respective Briefs of Argument. Appellant?s counsel urged the Court to allow the appeal. While Respondent?s counsel urged the Court to dismiss the appeal.
The Appellants Brief of Argument contained one issue for determination as follows:
Whether the respondent has acquired legal title over house No. 2 occupied by him in Kamful Quarters Maiduguri under the Borno State Government policy of owner/ occupier.”
On the part of the Respondent, he adopted the sole issue formulated by the Appellant as such I do not find it necessary to reproduce same. The sole
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issue formulated by the appellant will be adopted in the determination of this appeal.
ISSUE 1
In arguing the sole issue, learned counsel for the appellant first referred to the finding of the learned trial Judge at page 148 of the record. Learned counsel submitted that the defendant/respondent purchased the property in dispute based on the alleged Borno State Government policy of owner/occupier of government landed properties. That the policy was allegedly introduced in the year 2002. According to counsel the respondent occupies the house in dispute from 1992 when he was allocated same as civil servant and as a tenant while he became a licensee of the said house from 2002 to date when same was sold and granted to the claimant. That the Borno State Government policy of owner/occupier was introduced in 2002, and the claimant was granted the whole of Kamfut quarters wherein the house in dispute is contained vide Exhibits AMM1A, AMM1B, AMM2 and AMM2 (a). See pages 28, 29, 34 and 36-40, of the record. That it became crystal clear that the offer made to the Respondent in Exhibit UAS6 was void ab nitio. Learned counsel submitted that the evidential
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burden of proof is always on the person who asserts. See S.131(1), S.132 and 136(1) of the Evidence Act 2011. According to counsel the introduction of the alleged Borno State Government policy of owner/occupier remained an issue which the trial Court did not resolve. That respondent pleaded the facts and even listed the said policy to be frontloaded at the trial but they failed to establish the existence and scope of the alleged policy of the Borno State Government of owner/occupier. On the definition of policy counsel referred to Black?s Law Dictionary 10th edition and case of Federal Military Government v Sani (No.2), (1989) 4 NWLR (Pt.117) 624 @641, para E wherein the Court held that, ?The Policy of any Government which has not received the force of law cannot be the basis of punitive measure.” Counsel contended that the Borno State Government Policy of owner/occupier is not one of the laws of Borno State Government.
Learned counsel further submitted that the Appellant has been granted an approval for the grant of a right of occupancy and a statutory certificate of occupancy in file No. BO/48431 all in 2002. That as per the record of
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the Land Registry of the Borno State Ministry of Land and Survey, the appellant remain the valid holder and owner of the property in BO/48431. Counsel submitted that the Deed of Assignment of both parties were tendered and rejected by the Court. That the position of the law has always been that, a registrable instrument that was not registered cannot be given as evidence but equitable title be bored thereon. See Onwugbufor v Okoye (1996)1 NWLR (Pt.424) @ 289 paras E-F. Learned counsel referred to Section 5(1) of the Land Use Act 1978, Adole v Boniface (2008)4 SCNJ pg.1 @ P14 para 5, Chinda v Amadi (2002)7 NWLR (Pt.678) 505 CA and submitted that the Governor of a state has the power to make grant of land to anybody anywhere in the state. That where such grant is made, all existing rights to the use and occupation of the land so granted shall be extinguished under S.5(2) of the same Act. Counsel also referred to the case of Auta v Ibe (2003)13 NWLR (Pt.837) 247 SC where it was held that a statutory certificate of occupancy is evidence of executive possession of the rights provided for in favour of the person in possession of such certificate. Counsel submitted
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that respondent as defendant at the trial Court was a Licensee in house No. 2 Kamfut Quarters. It was his contention that mere payment of the purchase price coupled with the possession of house No. 2 Kamfut Quarters cannot ripen to confer legal title to the respondent over same as the said title documents of the Respondent cannot be compared to that of the Appellant who possessed Exhibit AMM 2(a) and in view of the Exhibits ?BGH5? and AMM4. Counsel submitted that Exhibit AMM2(a) dated 5th day of November 2002 issued to the Appellant, extinguishes all previous existing rights to the use of an occupation of the land (Kamfut Quarters) so granted. See Chinda v Amadi (supra) and S.5(2) of Land Use Act 1978. That Governor of Borno State did not make another grant of the same Kamfut Quarters or part of it to the Respondent or anybody else to give rise to any competing rights. That in an action for title to land, Judgment must be for party who proves better tile. Reliance placed on Engr. Bayo Akinterinwa v Cornelius (2000)4 SCNJ 149. Counsel contended that the Respondent did not possess any Legal interest that is
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registered to defeat the statutory right of the appellant. That where a vendor has no title or right to the land any subsequent sale of the land by him is void. See Oladipo v Esan (2001) 12 SCNJ 401. He urged the Court to resolve the sole issue in favour of the Appellant.
In response, learned counsel for the respondent referred to the findings and decision of the lower Court which appellant contended as erroneous. See pages 147-149 of the record and pages 150-151 of the record. Learned counsel submitted that the Appellant?s claim in the lower Court is for declaration of title to the house in dispute. That Appellant?s claim is predicated upon purchase of the premises from the Borno State Government, in proof of which he tendered Exhibits AMM1A, AMM1B, AMM2, AMM2A and BGHS. That Respondent on the other hand predicated his right to the premises upon purchase of the premises from the Government of Borno State. Learned counsel at page 6 of the Respondent?s Brief of Argument enumerated from the evidence adduced six facts which according to him are not disputable. Counsel submitted that there are five acceptable ways of proving title to land, and
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the proof of any of the five ways suffice to establish title. Reliance placed on Idundun v Okumagba (1976)1 NMLR. P. 200 at 210; Awoyoolu v Aro (2006)4 NWLR (pt.971) p.481 at 496; Mani v Shanono (2012)4 NWLR (Pt.969) 132 at 147 and Fatoki v Baruwa (2012)14 NWLR (Pt.1319) 1 at 25. Learned counsel submitted that the Appellant, in proof of his claim for declaration of title relied on one of the five ways, which is the production of documents of title. That Appellant tendered Exhibits AMM1A, AMM1B, AMM2 and AMM2A. Counsel submitted that these are the receipts of payment, the letter of grant of right of occupancy and the statutory certificate of occupancy. According to counsel mere production of receipts and certificate of occupancy do not in themselves confer title. That a certificate of occupancy is only prima facie but not conclusive proof or evidence of title. Cited in aid Otukpo v John (2012)7 NWLR (Pt.1299) 357 at 377; Edohoekat v Inyang (2010)7 NWLR (pt.1192) 25 at 42-43 and Olohunde v Adeyoju 2 SCQR P.1472 at 1496. Counsel cited case of Adole v Gwar 2 LLAC 10 at 30 to show that certificate of occupancy is only prima facie but not conclusive proof or
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evidence of title.
Learned counsel further submitted that the thrust of the policy is that only occupants and tenants of Government Quarters and house will benefit thereunder. Reference made to the testimony of DW1 at pages 101-102 and his witness statement under oath, at pages 78-81 of the record. Counsel submitted that credible and unchallenged evidence was led to establish the fact that the Appellant was not entitled to benefit under the policy being one who was neither an occupant or tenant of the premises in dispute. That Respondent led evidence to show that his father was the occupant of the premises in dispute, and have been occupying same since 1992, when he was allocated as his official quarters uptill when he purchased same following the introduction of the Owner/Occupier Policy. Counsel submitted t
