ALHAJI TANKO MAI KURINGA & ANOR v. DINO AGRIC & DAIRIES NIGERIA LIMITED & ORS
(2019)LCN/12816(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of March, 2019
CA/K/362/2015
RATIO
COURT AND PROCEDURE: WHETHER A PARTY CAN CALL A PARTICULAR WITNESS
“…that a party is bound to call a particular witness, if he can prove his case otherwise. The law does not prescribe any number of witnesses a party should field before he gets judgment in his favour. Before a trial judge who had heard the evidence of the parties in a civil action comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he first of all puts the totality of the testimony adduced by both parties on an imaginary scale. He puts the evidence of the Claimant on one side of the scale and that of the Defendant on the other side and weighs them together. He sees which is heavier and this does not depend on the number of witnesses called by each party but on the quality and probative value of the evidence of those witnesses. For these principles see Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 324 Para F-G; (2015) All FWLR Part 813 Page 1673 at 1773 Para B-C per Ogunbiyi JSC – Musa v. Yerima (1997) 7 NWLR Part 511 Page 27 at 50 Para E, per Ogundare JSC; Onowhosa v. Odiuzou (1999) 1 NWLR Part 586 Page 173 at 183, Para A-B, per Ogwuegbu JSC.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A .
LAND LAW: PROVING OWNERSHIP OF LAND
“…the five ways of proving ownership of land are as follow:
1. Traditional evidence;
2. By production of documents of title which must be duly authenticated in the sense that their due execution must be proved;
3. Acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land;
5. 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. Each of the five ways stated above suffices, I hold, to establish title to a disputed piece of land. See Idundun v. Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 329-330 Para H-A per Peter-Odili JSC; Orianzi v. A/G Rivers State (2017) 6 NWLR Part 1561Page 224 at 264-265 Para H-C per Galinje JSC; Addah v. Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 343- 344 Para C-A; (2015) All FWLR Part 775 Page 200 at 211 Para C-G per Fabiyi JSC.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A .
LAND LAW: LENGTH OF TIME TO DETERMINE POSSESSION AND ENJOYMENT OF LAND
“On what length of time will constitute long possession and enjoyment of land to warrant the inference of ownership, the law, the Supreme Court held in Oni Vs Arimoro (1973) 3 SC 163, is that possession of land for fifteen years was sufficient. In Arefunwon Vs Barber (1961) All NLR 916, the Supreme Court stated that a continuous possession and user of land for a period of twelve years was necessary to create title by possession. In Igiehon Vs Omoregie (1993) 2 NWLR (Pt 276) 398, the Court of Appeal held that possession of the land in dispute for about forty-eight years was more than enough in quantum to support a claim of title to land. In Akintola Vs Balogun (2000) 1 NWLR (Pt 642) 532, the Court stated that the uncontested and admitted evidence of the appellant’s family undisturbed possession of the land in dispute for nearly sixty years raised the inference of ownership. Also in Saidi Vs Akinwunmi (1956) 1 FSC 107, the Court stated that adverse possession of land for a period of sixty years was enough to raise the presumption.
By these authorities 40 and 22 years are sufficient to entitle the Appellants to ownership by long possession and I so hold.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A .
LAND LAW: WHETHER CERTIFICATE OF OCCUPANCY PROVES OWNERSHIP
“…Certificate of Occupancy, properly issued, raises the presumption that the holder is the owner in exclusive possession. This presumption is however rebuttable. In Atanda v Iliasu (2013) 6 NWLR Part 1351 Page 529 at 559 Para D-F the Supreme Court, quoting Ezeanah v Attah (2004) 7 NWLR Part 873 Page 468 at 501 Para A-C held, per Ogunbiyi JSC:’A certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebutable because if it is proved by evidence that another person had better title to the land before the issuance of the certificate of occupancy then the Court can revoke it.'” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A .
JUSTICE
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI TANKO MAI KURINGA
2. BABA TUNDE ADEYEMO Appellant(s)
AND
1. DINO AGRIC & DAIRIES NIG LTD
2. THE EXECUTIVE GOVERNOR OF KADUNA STATE
3. THE ATTORNEY GENERAL OF KADUNA STATE Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A .(Delivering the Leading Judgment):
This is an appeal against the decision of the Kaduna State High Court, delivered by Gwadah J on 18th day of September, 2014 dismissing the Appellants claim for title but granting the Counterclaim of the 1st Respondent for the same. Dissatisfied with the decision, the Appellants appealed to this Court, by Notice of Appeal filed on 22/10/14.
In prosecution of their appeal, the Appellants, with leave of this Court granted on 8/1/17, filed their Appellants Brief. The Appellants Brief, settled by Ogbeni Biola Oyebanji, Sani Kilawa, Godwin Ochai, Usman Abdullahi, H. T. Oyebanji Esqs of Biola Oyebanji & Co and filed on 31/1/17, raised two issues for the Courts determination, namely:
1. Whether or not there was evidence from the 2nd & 3rd Respondents of any revocation of the Appellants customary rights before vesting same in the 1st Respondent.
2. Whether or not the learned trial Judge was right in making up cases for the parties moreso, when there was no pleading supporting same.
The 2nd and 3rd Respondents, in spite of service on them of all processes and notification of the hearing date, filed no Briefs of Argument, were absent throughout the proceedings and were not represented at the hearing. The Appellants, by Motion filed on 18/5/17 sought and were granted leave on 15/2/18 for hearing of the appeal on the Appellants Brief alone, the Respondents having failed to file any.
The singular issue that arises for determination and under which the issues raised by the Appellants shall be argued is:
Whether the lower Court rightly dismissed the Appellants’ claim and granted the 1st Respondents Counterclaim.
At the lower Court, both Appellants, who were the Plaintiffs thereat, testified as PW1 and PW2 respectively. The 1st Respondent, who was the 1st Defendant at the lower Court, testified through its Managing Director, one Shankar Naraindus Kiapalani, as DW1, and called Jerry J. Samba, a Civil Servant with the Kaduna State Ministry of Lands and Survey, as DW2.
The parties testified by witness deposition, in accordance with the Rules and were cross examined by opposing Counsel.
From the Statement of Claim of the Appellants and the deposition on oath of the 1st Appellant, Alhaji Tanko Mai Kuringa, who is an 80 year old farmer, the late Sarkin Nassarawa, Alhaji Adamu Garba, in view of their friendship, gave him a piece of land in 1970 for farming. The Sarkin Nassarawa inherited the land from his father, who owned the land from time immemorial. On his death, his son, Alhaji Galadima has been exercising control over the expanse of land. Since the gift of the land to him (PW1), he had been cultivating the land and had been in exclusive possession, without any interference from anyone, including the state Government. He sold the land in dispute, measuring 296 feet x 182 feet to the 2nd Appellant on the 1st day of February 1988 for the sum of N1,500 (One Thousand Five Hundred Naira). The sale was witnessed by Sarkin Hakim, the Madakin, the District Head of Nassarawa, along with other witnesses. The Madakin issued a letter of introduction on the 4th November 2007 recommending the issuance to the 2nd Appellant of a Certificate of Occupancy.
It was on 1st April 2010 that the representatives of the 1st Respondent, accompanied by some officials of the 2nd and 3rd Respondents invited the 2nd Appellants representative and informed him that the land had been allocated to the 1st Respondent. When this claim was rejected by the representative, the same not having come to his knowledge, the 1st Representative came to the site with officials of the Complaints Commission to direct the representative to collect a paltry sum as compensation, which was refused. When it was clear that the Respondents were bent on divesting them of the land without the notice required, they decided to institute the instant action.
The Appellants insisted that they could not be divested of the land, the allocation to the 1st Respondent not being for public interest.
They thus claimed the following reliefs:
1. A declaratory order of this honourable Court that the piece of parcel of land measuring 296ft x 182ft situate at Kudenda Nassarawa village, near Burial Ground, Chikun Local Government and as depicted in the sketch belongs to the Plaintiff at all times prior to the trespass committed by the defendants.
2. An order of perpetual injunction against the defendants, their agents and those claiming authority and on behalf of the defendant jointly and severally from interfering with the possession of the Plaintiff which he had acquired from time immemorial.
3. An order of this honourable Court restraining the defendants from perfecting any titles, beneficial, tenurial and of whatever form in favour of any other person, corporate or incorporate except to formalize and specifically to grant the issuance of the Statutory right of Occupancy in favour of the Plaintiff.
4. An order of this honourable Court declaring null and void any other title in favour of any person(s) corporate or incorporate which covers or is superimposed on the piece or parcel of land already vested in the Plaintiffs.
5. An order of this honourable Court setting aside all or any of title created in favour of any person corporate or incorporate which title runs contrary to the pre-existing and subsisting title of the Plaintiffs.
6. A declaration that the 2nd Plaintiff entitled to a declaration of the Right of Occupancy of that piece of land measuring 6614 sq on along Sunglass Road Kudenda which is particularly described on the attached sketch map which is attach to this claim.
7. The cost of this suit.
The case of the 1st Respondent, presented through its two witnesses is that it is the rightful owner of 6.27 acres of land covered by C of O No. NC 4528 situate at Maichibi Close in Kaduna South Industrial Estate, which was taken over or acquired by the Federal Government while dualizing the Kaduna- Abuja Road in 1992 for public purposes. The 1st Respondent thereafter applied for equivalent land in replacement, from the Kaduna State Government, who then allotted to him 2.61 acres of land at Kudenda Industrial Estate, covered by Certificate of Occupancy No. KD 11969 dated 19/9/2005.
After the grant of the Certificate of Occupancy, the Ministry of Lands and Survey directed the 1st Respondent to compensate the customary title holders. The 1st Respondent duly compensated all the customary title holders except one Mr. Balogun who rejected the compensation. They denied that the Appellants are among the customary title holders recognized by the Ministry of Lands and Survey or the Sarki of Kudenda, both of whom participated in the process of compensating the holders. It denied that the 1st Respondent was either in possession, is farming on the land or had any legal or equitable right to the land.
The Respondents thereupon counterclaimed for the following:
1. A declaration that the 1st Defendant is the rightful owner in possession of the land situate at Kudenda Industrial Estate, Kaduna, measuring 2.61 acres and covered by the Certificate of Occupancy No. KD 11969 registered as No. 80 at page 80 in volume 120 (Certificate of Occupancy) in the State’s Land Registry Office, Kaduna.
2. An order of perpetual injection (sic) restraining the Plaintiffs, their servants, privies, agents, successors-in-title and assigns or anybody whatsoever claiming through them from ever trespassing into the land aforesaid.
The trial Judge, in his judgment held it deduced from the Appellants pleadings and evidence that the Appellants are relying on traditional evidence or history and also acts of long possession and enjoyment of the land. He held it insufficient for the Appellants to merely plead that the father of the then Sarkin Nassarawa had owned the land in dispute from time immemorial, without more, and without calling evidence to this effect or that the land was given to him as a gift. Acts of long possession and enjoyment of the land could therefore not establish their claim of ownership of the land, proof of their root of title having failed. It thereupon dismissed the Appellants claim.
Granting the Counterclaim, it held that by reason of the Certificate of Occupancy issued to the 1st Respondent and payment of compensation to the customary owners, it is evident that there were not in existence customary owners whose title has not been revoked. The grant of the Certificate of Occupancy was thus proof that all other rights had been extinguished.
Learned Counsel to the Appellants, in the Appellants Brief of Arguments, has argued that the Appellants proved ownership of the land by long possession, without disturbance from any person or government. They also proved how they came to be in possession, giving the history thereof. There were no issues joined therewith, except the general traverse, which, he submitted, has been held to be no traverse. In consequence, it is proved, he submitted, that they were in possession prior to the purported allocation to the 1st Respondent.
Counsel submitted that the effect of Section 34(2) of the Land Use Act 1978 is that any party holding land in an urban area prior to the Land Use Act shall continue to hold same as if he were the holder of a Statutory Right of Occupancy issued by the Governor under the Act, contending that since the 1st Appellant has been in occupation before the introduction of the Land Use Act, he is the deemed holder of the Statutory Right of Occupancy from the commencement of the Land use Act in 1978, as opposed to the issue by 2nd and 3rd Respondents to the 1st Respondent of a Certificate of Occupancy in 2005.
Learned Counsel further submitted that the mere production of a Deed of Assignment or Certificate of Occupancy does not automatically devolve ownership of land to the person who produced same and that for the Certificate of Occupancy to be valid, it must be issued to the holder only where there is no customary title holder over the same piece of land at the time of the grant. He cited the case ofAbioye vs Yakubu NWLR (Part 190). The Land Use Act, he submitted, has not done away with all the incidents of customary land tenure, citing Ogunleye vs Oni (1990)2 NWLR (Part 135) Page 745 at 772 Para B-C.
It was Counsels further contention that the fact that a State Certificate of Occupancy is issued over a land held under a deemed customary right is of no moment, unless and until the source of the Certificate of Occupancy is proved validly to have extinguished the earlier right. Failure to properly extinguish or revoke the subsisting customary right presupposes that the issuance of a subsequent Certificate of Occupancy, from the onset, is wrongful, improper, null and void. He accused the 2nd and 3rd Respondents of not complying with Section 44 of the Land Use Act before revoking the Appellants right of occupancy and issuing same to the 1st Respondent. He cited the case of FGN & 2 Ors vs Rasaki Akinde & 2 Ors. (2013) 7 NWLR (Part 1353) Page 355 at 372, submitting that the 2nd and 3rd Respondents are thus caught by the Latin maxim “nemo dat quod non habet as no one can give what he has not got. The purported grant of the Certificate of Occupancy to the 1st Respondent is, in consequence, void ab initio. In revoking a Right of Occupancy for public purpose or any other purpose or reason, the governor should accord all those aggrieved or likely to be aggrieved by the revocation fair hearing as stipulated in Section 36(1) of the 1999 Constitution, he submitted, citing Dr. Tosin Ajayi vs Oba John Ojomo (2000) 14 NWLR (Part 688) Page 447 at 456.
As pointed out by the lower Court, the five ways of proving ownership of land are as follow:
1. Traditional evidence;
2. By production of documents of title which must be duly authenticated in the sense that their due execution must be proved;
3. Acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land;
5. 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.
Each of the five ways stated above suffices, I hold, to establish title to a disputed piece of land. See Idundun v. Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 329-330 Para H-A per Peter-Odili JSC; Orianzi v. A/G Rivers State (2017) 6 NWLR Part 1561Page 224 at 264-265 Para H-C per Galinje JSC; Addah v. Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 343- 344 Para C-A; (2015) All FWLR Part 775 Page 200 at 211 Para C-G per Fabiyi JSC.
It is also the position of the law that all modes of proof of title are independent and none is superior to the other. It is sufficient if only one of the ways is proved. So where traditional evidence fails, a party may still rely on any of the four other modes to prove title to land in dispute. See Owhonda v Ekpechi (2003) 17 NWLR Part 849 Page 326 at 354 Para A-B; 367 Para D-F per Musdapher JSC (as he then was); Onovo v. Mba (2014) 14 NWLR Part 1427 Page 391 at 420-421 Para F-D per Ogunbiyi JSC.
In the instant case, the Appellants have pleaded and, in their deposition, given facts that infer ownership by traditional evidence and long possession. The 1st Appellant, as aforesaid, alleges ownership through a gift from the late Sarkin Nassarawa, Alhaji Adamu Garba in 1970, who, he stated, inherited the larger area of land from his father who had been the owner from time immemorial.
Apart from the general traverse in Paragraph 1 of the Amended Statement of Defence, that Save and except as herein expressly admitted, the Defendant denies all the material allegations in the Statement of Claim as if same are set out and traversed seriatim, there has been no denial by the Respondents of the Appellants history of ownership of the land.
A general traverse has been held to be no traverse. A denial of a material allegation of fact must not be general or evasive, but specific. Every allegation of fact, if not denied specifically or by necessary implication shall be taken as established at the hearing. See Orianzi v. A/G Rivers State (2017) 6 NWLR Part 1561 Page 224 at 266-267 Para H-A per Galinje JSC; Oshodi v. Eyifunmi (2000) 13 NWLR Part 684 Page 298 at 337, Para B, per Iguh JSC.
There being no effective traverse of the devolution of the land to the 1st Appellant and the sale of a portion thereof to the 2nd Respondent, it is held undisputed that the family of the 1st Appellants predecessor in title has been in possession of the land for a number of years. I also hold it undisputed that the 1st Appellant was given land to farm on by the late Adamu Garba in 1970, out of which land he sold part thereof to the 2nd Appellant in 1988.
While the trial Judge has held that the claim to ownership by traditional evidence fails for lack of specificity on the original owners of the land, viz the founder etc, and which I agree with, the claim of long possession was not adequately considered by the trial Court, I hold.
A claim of long possession, as held in the authorities above, is one of the modes of proof of ownership of land and is not necessarily dependent on proof of ownership by traditional evidence, I hold. Thus, the fact that the lower Court held the Appellants not to be entitled to ownership by traditional evidence did not preclude the availability of the defence of long possession to them.
The lower Court again held that the 1st Appellant failed to show or call any witness to confirm and or corroborate his assertion that the land was indeed given to him by the family of late Alh. Adamu Garba and that there is no evidence documentary or oral to show that the land was actually given to him as a gift. There is no evidence of devolution of the land through successive ancestors as submitted by 1st Defendants Counsel.
It is not the law, I hold, that a party is bound to call a particular witness, if he can prove his case otherwise. The law does not prescribe any number of witnesses a party should field before he gets judgment in his favour. Before a trial judge who had heard the evidence of the parties in a civil action comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he first of all puts the totality of the testimony adduced by both parties on an imaginary scale. He puts the evidence of the Claimant on one side of the scale and that of the Defendant on the other side and weighs them together. He sees which is heavier and this does not depend on the number of witnesses called by each party but on the quality and probative value of the evidence of those witnesses.
For these principles see Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 324 Para F-G; (2015) All FWLR Part 813 Page 1673 at 1773 Para B-C per Ogunbiyi JSC – Musa v. Yerima (1997) 7 NWLR Part 511 Page 27 at 50 Para E, per Ogundare JSC; Onowhosa v. Odiuzou (1999) 1 NWLR Part 586 Page 173 at 183, Para A-B, per Ogwuegbu JSC.
It is thus not compulsory for the Appellants to have called the family of the owners of the land to corroborate the testimony of PW1, which I have observed above, was not challenged.
Furthermore, the 1st Respondents Managing Director (DW1) and DW2 from the Ministry of Lands and Survey, admitted that there were customary owners on the land and which were compensated, all except one Mr. Balogun, who refused to collect any compensation. This Mr. Balogun has been stated by the Appellants to be the representative of the 2nd Appellant on the land.
DW2, Jerry Samba, whose duty is carrying out assessment of compensation on land, economic trees and any other development, variation for assignment, interceding for disputes concerning land confirmed this under cross examination when challenged on the prior occupation of the land, responding:
Yes before the Certificate of Occupancy was given to the 1st Defendant the person that was there was a customary tenant.
I can’t remember how much was offered to Mr. Balogun.
I assessed the compensation payable to the customary title holder in this land in issue.
Yes it is correct that I assessed and offered Mr. Balogun payment of money because he had land there.
I know the former Sarki of that area, he is late now. Yes it is his son that is now the Sarki.
Yes I have seen Exhibit ‘7’ and its attachments. No. ‘1’ on the list on Exhibit ‘7’ is Mr. Balogun. Yes the size of his plot is mentioned there. The size of his assessed land is 0.214 hectares and that translates to about 6 or so plots of land.
Yes I have ever met Mr. Balogun at the site on the day of the assessment and he is in this court room.
The Plaintiff I say do not have land.
Yes I acknowledge that Mr. Balogun had land that was why he was included in the schedule of assessment of compensation.
The Appellants in both their Statement of Claim and the deposition of the 1st Appellant, confirmed that the representative of the 1st Respondent, accompanied by some officials of the 2nd and 3rd Respondents invited the 2nd Appellants representative, who however refused to collect the compensation offered. It is therefore clear that Mr. Balogun referred to by the 1st Respondent is the same person referred to by the Appellants as 2nd Appellants representative.
The 1st Appellant, I accordingly hold, has successfully discharged the burden of proving his possession of the property since 1970 and the sale of the portion in dispute to the 2nd Appellant in 1988. This sale is contained in an agreement, Exhibit 1, which transaction was witnessed by the Sarkin Kudenda, as the land is stated in the agreement to be situate at Kudenda, Nassarawa Village, Kaduna South.
The account of the 1st Respondent is thus improbable that the Sarki of Kudenda, who DW2 said participated in the compensation process, was not aware of the Appellants ownership of the land, when he signed Exhibit 1 as a witness to the Sale Agreement between the 1st and 2nd Appellant.
In further proof of 2nd Appellants possession of the land is Exhibit 2, whose English translation is Exhibit 3. This is letter dated 4/11/2007, from Madakin Gbagyi Chiefdom, District Head of Nassarawa Chikun Local Government, Kujama, Kaduna State addressed to the Secretary Chikun Local Government, Kujama, Kaduna State, informing him that investigations revealed that there was no encumbrance on the farm land of the 2nd Appellant and recommending that a Certificate of Occupancy be issued to him.
The occupation of the 1st Appellant from 1970 until the institution of the action in 2010, I note, is a period of 40 years and that of the 2nd Appellant from 1988 to 2010 when the action was instituted is 22 years.
In Usman Dung Ndah v Atari Waya (2017) LPELR-43357(CA) at Pp. 29-30, Paras. F-E this Court, per Abiru JCA, on a review of the cases with regard to the number of years that have been held to qualify as long possession, held as follows:
On what length of time will constitute long possession and enjoyment of land to warrant the inference of ownership, the law, the Supreme Court held in Oni Vs Arimoro (1973) 3 SC 163, is that possession of land for fifteen years was sufficient. In Arefunwon Vs Barber (1961) All NLR 916, the Supreme Court stated that a continuous possession and user of land for a period of twelve years was necessary to create title by possession. In Igiehon Vs Omoregie (1993) 2 NWLR (Pt 276) 398, the Court of Appeal held that possession of the land in dispute for about forty-eight years was more than enough in quantum to support a claim of title to land. In Akintola Vs Balogun (2000) 1 NWLR (Pt 642) 532, the Court stated that the uncontested and admitted evidence of the appellant’s family undisturbed possession of the land in dispute for nearly sixty years raised the inference of ownership. Also in Saidi Vs Akinwunmi (1956) 1 FSC 107, the Court stated that adverse possession of land for a period of sixty years was enough to raise the presumption.
By these authorities 40 and 22 years are sufficient to entitle the Appellants to ownership by long possession and I so hold.
The question is thus whether, as held by the lower Court, the subsequent issue to the 1st Representative of the Certificate of Occupancy, obliterated the title of the Appellants.
It is settled law that a Certificate of Occupancy, properly issued, raises the presumption that the holder is the owner in exclusive possession. This presumption is however rebuttable.
In Atanda v Iliasu (2013) 6 NWLR Part 1351 Page 529 at 559 Para D-F the Supreme Court, quoting Ezeanah v Attah (2004) 7 NWLR Part 873 Page 468 at 501 Para A-C held, per Ogunbiyi JSC:
“A certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebutable because if it is proved by evidence that another person had better title to the land before the issuance of the certificate of occupancy then the Court can revoke it.”
The Appellants Counsel has however relied on Section 34(2) of the Land Use Act 1978 as vesting the land in dispute in the 2nd Appellant, as a deemed holder, whose title must be extinguished first, as provided in Section 44 of the Act, before a reallocation of the land could be made.
I accordingly set out the salient portions of Section 34:
LAND USE ACT
SECTION 34
[TRANSITIONAL PROVISIONS ON LAND IN URBAN AREAS.]
1 The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.
2 Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.
3 In respect of land to which Subsection (2) of this section applies there shall be issued by the Governor on application to him in the prescribed form a certificate of occupancy if the Governor is satisfied that the land was, immediately before the commencement of this Act, vested in that person.
4. Where the land to which Subsection (2) of this section applies was subject to any mortgage, legal or equitable, or any encumbrance or interest valid in law such land shall continue to be so subject and the certificate of occupancy issued, shall indicate that the land is so subject, unless the continued operation of the encumbrance or interest would in the opinion of the Governor be inconsistent with the provisions, or general intendment of this Act.
5. Where on the commencement of this Act the land is undeveloped, then-
a. one plot or portion of the land not exceeding half of one hectare in area shall subject to Subsection (6) of this section, continue to be held by the person in whom the land was so vested as if the holder of the land was the holder of a statutory right of occupancy granted by the Governor in respect of the plot or portion as aforesaid under this Act; and
b. all the rights formerly vested in the holder in respect of the excess of the land shall on the commencement of this Act be extinguished and the excess of the land shall be taken over by the Governor and administered as provided in this Act.
6. Paragraph (a) of Subsection (5) of this section shall not apply in the case of any person who was on the commencement of this Act also the holder of any undeveloped land elsewhere in any urban area in the State and in respect of such a person all his holdings of undeveloped land in any urban area in the State shall be considered together and out of the undeveloped land so considered together-
a. one plot or portion not exceeding half of one hectare in area shall continue to be held by such a person as if a right of occupancy had been granted to him by the Governor in respect of that plot or portion; and
b. the remainder of the land (so considered together) in excess of half of one hectare shall be taken over by the Governor and administered in accordance with this Act and the rights formerly vested in the holder in respect of such land shall be extinguished.
7. No land to which Subsection (5) (a) or (6) of this section applies held by any person shall be further subdivided or laid out in plots and no such land shall be transferred to any person except with the prior consent in writing of the Governor.
8. Any instrument purporting to transfer any undeveloped land in contravention of Subsection (7) of this section shall be void and of no effect whatsoever in law and any party to any such instrument shall be guilty of an offence and liable on conviction to imprisonment for one year or a fine of N5,000.
9. In relation to land to which Subsection (5) (a) or (6) (a) of this section applies there shall be issued by the Governor on application therefor in the prescribed form a certificate of occupancy if the Governor is satisfied that the land was immediately before the commencement of this Act vested in that person.
Underlining Mine
The lower Court, in its judgment, confirmed the land to be in an urban area.
Explaining the status of a deemed holder, the Supreme Court held, in the case of Provost Lagos State College of Education v Dr. Kolawole Edun (2004) 6 NWLR Part 870 Page 476 at 479 Para C-H per Iguh JSC:
There is firstly the statutory right of occupancy granted by a State Governor pursuant to Section 5(1)(a) of the Act and the customary right of occupancy granted by a Local Government under Section 6(1)(a) of the Act. The second classification is the statutory right of occupancy deemed to have been granted by a State Governor pursuant to Section 34(2) of the Act as against the customary right of occupancy deemed to have been granted by a Local Government under Section 36(2). There therefore exist in both cases of statutory and customary rights of occupancy actual grant as well as deemed grant.
An actual grant is naturally a grant expressly made by the Governor of a State or by a Local Government whilst a deemed grant came into existence automatically by the operation of law. See Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1NWLR (Pt. 97) 305; Alhaji Adisa v. Emmanuel Oyinwola and Others (2000) 10 NWLR (Pt. 674) 116 etc.
The respondents in the present case were in exclusive physical possession of the land in dispute and were using the same for agricultural purposes in a non-urban area or village called Otto/Ijanikin, Awori immediately before the commencement of the Land Use Act on the 29th March, 1978. They are therefore deemed holders of customary right of occupancy in respect of the land in dispute by operation of law at the commencement of the Land Use Act, 1978 on the 29th March, 1978. Their deemed grant is no less effective than a customary right of occupancy expressly granted by the appropriate Local Government. Deemed grants, whether of statutory or customary right of occupancy are as valid as express grants and may not be defeated by any unlawful subsequent dealing in respect of such land by the original owners thereof. Underlining Mine.
In Ilona v Idakwo (2003) 11 NWLR Part 830 Page 1 at 83-84 Para F-B the Supreme Court, per Edozie JSC held as follows:
Since the land in dispute was vested on the heirs or successors of the respondents’ father from 9th October, 1976 when he died till 1978 when the Land Use Act came into effect and the land being developed and located in an urban area, the land continued to be vested in the said heirs or successors of the respondents’ father and are deemed to be holders of a statutory right of occupancy in respect of that land. That right of occupancy is irrevocable unless under Section 28 of the Land Use Act for overriding public interest. As was observed by Belgore, J.S.C. in Kari v. Ganaram (supra) at p. 400.
“Where there is a subsisting right of occupancy, it is good against any other right. The grant of another right of occupancy over the same piece of land will therefore be merely illusory and invalid. The appellant’s right of occupancy subsists up to now as it has not been revoked and the wrongful grant to the 1st respondent has no effect whatsoever on its authenticity.”
When, therefore, in the instant case the appellant was on 24th April, 1984 granted a statutory right of occupancy (exhibit D1) over the land in dispute, that grant was invalid because there was already a subsisting statutory right of occupancy over that land which has not been revoked.
See also the case of Kokoro-Owo v Lagos State Govt. (2001) 11 NWLR Part 723 Page 237 at 250 Para A where the same Court, per Ogwuegbu JSC, interpreting Section 34(2) of the Land Use Act Supra held:
The Act did not equate the certificate of occupancy with title. It gives a right of occupancy to an “occupier”, meaning, any person lawfully …occupying the land in accordance with customary law
It is thus settled from the foregoing, that the Appellants, being in exclusive physical possession were deemed holders of a right of occupancy in respect of the land in dispute by operation of law. Their deemed grant is no less effective and is as valid as a customary or statutory right of occupancy and cannot be defeated by any unlawful subsequent dealing in respect of such land.
While not contesting the right of a Governor to revoke a right of occupancy under Section 28 of the Act, such revocation must however precede a subsequent grant, as stipulated in Section 28(4) and (6) of the Act, by a Notice to that effect under the hand of the Governor or an officer on his behalf. See Dantsoho v. Mohammed (2003) 6 NWLR Part 817 Page 457 at 485-486 Para C per Katina-Alu JSC (as he then was).
In the instant case, it is not in doubt that there was no notice of revocation. The case of the Respondents is that they applied to the State Government for land in replacement of their land acquired by the Federal Government and were allocated an expanse of land which covers the area in dispute. That it was after the allocation of the land to them that they approached the customary owners for payment of compensation.
In the absence of a Notice of Revocation, no subsequent allocation of the land is effectual, I hold. The power of revocation, I further hold, must be exercised with due compliance with the provisions of the Land Use Act and interpreted strictly against the acquiring authority. See CSS Bookshops Ltd v. Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR Part 992 Page 530 at 578 Para D-E per Tobi JSC. <br< p=””>
The grant of a Right of Occupancy without revoking the earlier one does not amount to the revocation of such existing right, I hold, and having been done in violation of the provisions of Section 28 of the Land Use Act is invalid, null and void and confers no title. See CSS Bookshops Ltd v. Registered Trustees of Muslim Community in Rivers State Supra per Mohammed JSC (as he then was).
The consequence of this is that the Right of Occupancy of the Appellants subsists and is good against any other right and the wrongful grant of a Certificate of Occupancy to the 1st Respondent over the land of the Appellants is invalid and of no effect.
Furthermore, allocation of land acquired, to a private individual or organization for commercial use does not qualify as overriding public purpose. See Ibafon Co Ltd v. Nigerian Ports Plc (2000) 8 NWLR Part 667 Page 86 at 103 Para C-E per Aderemi JCA (as he then was).
I can only thus hold the trial Judge to be wrong when he held that:
..at the time Exhibit 5 was issued there was not in existence a customary owner whose title has not been revoked In consequence of a grant of Statutory Right of Occupancy to the 1st Defendant to the 1st Defendant as evidence by the Certificate of Occupancy Exhibit 5, all rights to the use and occupation of the land in dispute are extinguished.
The lower Court, I accordingly hold was in error to have dismissed the Appellants claim and granted the 1st Respondents Counterclaim. I accordingly resolve the sole issue for determination in favour of the Appellants. This appeal succeeds. The judgment of the lower Court is hereby set aside.
The Appellants, not having been alleged to be in adverse possession where the law only permits their claim to be a shield and not used as a sword, their claim to ownership by long possession accordingly succeeds. See Idundun v Okumagba Supra, rendering them eligible, on application to the Governor, to be granted a Certificate of Occupancy over the land, being deemed holders. The land in dispute, having been shown in the site plan (Exhibit 4) to be 296 feet x 182 feet, I hold them entitled to the reliefs sought in their Statement of Claim.
I accordingly make the following orders:
1. A declaratory order is granted that the piece or parcel of land measuring 296ft x 182ft situate at Kudenda Nassarawa village, near Burial Ground, Chikun Local Government and as depicted in the sketch belongs to the 2nd Appellant at all times prior to the trespass committed by the Respondents.
2. An order of perpetual injunction is granted restraining the Respondents jointly and severally, their agents and those claiming authority under them from interfering with the possession of the Appellants.
3. An order of this Court is granted restraining the Respondents from perfecting any titles of whatever form, in favour of any other person, corporate or incorporate, save to grant the issuance of the Statutory Right of Occupancy in favour of the Appellants.
4. An order of this Court is granted declaring null and void any other title in favour of any person(s) corporate or incorporate which covers the piece or parcel of land already vested in the Appellants.
5. An order of this Court is granted setting aside any title created in favour of any person corporate or incorporate which title runs contrary to the pre-existing and subsisting title of the Appellants.
6. A declaration is granted that the 2nd Appellant is entitled to the grant of a Right of Occupancy over that piece of land measuring 6,614 sq metres along Sunglass Road, Kudenda which is particularly described in the sketch map, Exhibit 4
The parties shall bear their respective costs.
OBIETONBARA O.DANIELKALIO, J.C.A.: I have read the Judgment of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA and I agree with the said Judgment. The appellant relied on long possession of the land in dispute. While long possession cannot ripen into ownership against the interest of the true owner of Land (See Da Costa v Ikomi (1968) 1 All NLR p 394 at 398 and 399), where long possession is established, it affords a prima facie evidence of ownership under Section 35 of the Evidence Act, 2011 (formerly Section 46 of the Evidence Act). See Yusuf v Adegoke & Anor (2007) 11 NWLR part 1045 p. 332. For this reason and the fuller reasons given by my lord in the lead Judgment, the appeal is allowed.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read in advance the lead judgment delivered by my learned brother, Oludotun Adefope-Okojie, JCA. The vital issues for the determination of this appeal were beautifully treated by my Lord. I have nothing useful to add. I therefore adopt my Lords conclusion that the appeal has merit and is allowed. The judgment of the lower Court is thus set aside. I abide by my Lords orders, including the order as to costs made in the judgment.
Appearances:
Usman AbdullahiFor Appellant(s)
Respondents not representedFor Respondent(s)
