DAN A. D. PETROLEUM & GAS LTD & ANOR v. JIGAWA STATE GOVT & ORS
(2022)LCN/16358(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Tuesday, January 11, 2022
CA/K/561/2018
Before Our Lordships:
OyebisiFolayemiOmoleye Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
1. DAN A. D. PETROLEUM & GAS LIMITED 2. ALHAJI TEA MUHAMMAD APPELANT(S)
And
1. JIGAWA STATE GOVERNMENT 2. THE HON COMMISSIONER, MINISTRY OF LAND & HOUSING, JIGAWA STATE 3. HADEJIA JAMA’ARE RIVER BASIN DEVELOPMENT AUTHORITY 4. MUHAMMADU BARDE & SONS NIGERIA LIMITED 5. ALHAJI MUHAMMADU BARDE RESPONDENT(S)
RATIO:
THE WAYS OF PROVING TITLE TO LAND
In an action for declaration of title to land, the burden is on the claimant to prove that he has title to the land in dispute and this he can do by proof of any of the following five ways of proving title to land:
(i) By traditional evidence;
(ii) By production of title documents which must of course be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in the circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more at the date of the contract;
(iii) By acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land or farming on it or on a portion of it.
(iv) Acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece of landwith reference to which such acts are done.
(v) 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. ABUBAKAR MU’AZU LAMIDO, J.C.A
THE COURT MUST ACT ON AN EVIDENCE THAT IS UNCHALLENGED AND UNCONTRADICTED
It is to be noted that all the Respondents pleaded that title to the land in dispute was vested in the 3rd Respondent which is an agency of the Federal Government since its creation and the grant was made by the old Kano State. The Appellant must therefore challenge and controvert the deposition and oral evidence adduced by the Respondents. The law is well settled that where there is unchallenged and uncontradicted evidence adduced by a party, the Court must act on such evidence except where the evidence in itself is self-defeating and unacceptable. See DAUDA VS. ALIYU (2016) LPELR-41293; LAWAL & ORS VS KAZEEM (2018) LPELR-45324. ABUBAKAR MU’AZU LAMIDO, J.C.A
THE ISSUANCE OF A STATUTORY RIGHT OF OCCUPANCY
Now, the law is well settled that where a statutory right of occupancy is issued in favour of a person over a piece of land when a valid right in the said land exists in another person and that right has not been revoked, the statutory right of occupancy becomes a worthless document because there cannot be in existence two title holders over one and the same piece of land at the same time. As of necessity, one must be invalid and the invalid one must be the latter right granted without first revoking the earlier title. See TENIOLA & ORS VS. OLOHUNKUN (1999) LPELR-3141, ILONA VS. IDAKWO (2003) 11 NWLR (PT. 830) 53, OMIYALE VS. MACAULAY (2009) 7 NWLR (PT. 1141) 597 and MUHAMMED VS. BELLO & ORS(2019) LPELR-46894. ABUBAKAR MU’AZU LAMIDO, J.C.A
THE ESTABLISHED SETTLED PRINCIPLE OF LAW IN THE CONSTRUCTION OF STATUTORY PROVISION
In AG BENDEL STATE & ORS VS. AIDEYAN(1989) 9 SC 127, the Supreme Court held that:-
“It is now firmly established that in the construction of a statutory provision, where a statute mentions specific things or persons the intention is that those not mentioned are not intended to be included.”
See AG ONDO STATE VS. AG. EKITI STATE (2001) LPELR-622, BUHARI & ANOR VS. YUSUF & ANOR (2003) LPELR-812 and SHINKAFI & ANOR VS. YARI & ORS (2016) LPELR-26050.
A closer look at both Sections 28 and 29 of the Land Use Act will reveal that the latter Section is inapplicable to the facts of this case. The reason is that for the Section to apply the revocation must have been done for any cause enumerated in Section 28. ABUBAKAR MU’AZU LAMIDO, J.C.A
THE LAW DOES NOT BAR A COURT FROM RAISING ISSUES SUOMOTU
Our law is well settled that a Court should confine itself to issues raised before it by parties both in their pleadings and evidence.
The law did not bar a Court from raising issues suomotu, where a trial Court chooses to raise a point suomotu, parties to the suit must be given an opportunity to address the Court on the issue raised before a determination of that issue. See TINUBU VS. IMB SECURITIES PLC (2001) LPELR-3248 and ODEDO VS. PDP (2015) LPELR-24738. ABUBAKAR MU’AZU LAMIDO, J.C.A
ABUBAKAR MU’AZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Jigawa State sitting in Dutse delivered on 27th June, 2018. Coram: Taura, J. At the trial Court, the plaintiff/Appellants claimed against the defendants/Respondents jointly the following reliefs:
1. A DECLARATION that the claimants are the rightful owners of the property lying and situate at Hadejia town of Jigawa State covered by Certificate of Occupancy No. JGLN/COM/2015/68 more properly described and delineated in survey plan No. 22 by the Jigawa State Surveyor General.
2. A PERPETUAL ORDER OF INJUNCTION restraining the defendants jointly and severally either by themselves, agent, privies, legal representatives or any other person or body acting for or on their behalf from further encroaching trespassing and/or claiming ownership of the property lying and situate at Hadejia town of Jigawa State of Nigeria covered by Certificate of Occupancy No. JGLN/COM/2015/68 and more properly described and delineated in survey plan no. 22 under the hand and seal of the 1st defendant dated 18th May, 2015.
3. AN ORDER of the Honourable Court directing the defendants particularly the 3rd – 5th defendants to pay the plaintiffs the sum of N15,000,000.00 (Fifteen Million Naira) as damages for trespassing on the plaintiffs’ property and subjecting the plaintiff to all forms of humiliation and embarrassment.
4. Cost of filing and prosecuting this suit assessed at N5,000,000.00 (Five Million Naira only).
Upon settlement or pleading, parties opened their cases wherein the plaintiffs/Appellants presented a lone witness and tendered in evidence 6 exhibits. The defendants/Respondents called 5 witnesses and tendered in evidence 4 exhibits. In a considered judgment, the trial Court dismissed the plaintiff’s/Appellant’s claim entirely.
Dissatisfied with the judgment of the trial Court, the plaintiff/Appellant appealed to this Court by filing their notice of appeal containing 10 grounds of appeal. The grounds of appeal are as follows:
GROUND ONE
The learned trial judge erred in law and clearly misdirected himself when he held that the claimants (now Appellants) have failed to prove their root of title and as such their claim for declaration of title must fail.
GROUND TWO
The learned trial judge erred in law and misdirected himself which error seriously occasioned a miscarriage justice when he held that the purported service of both the revocation notice and the certificate to have duly complied with the law as provided under the Land Use Act of 1978 and therefore valid based on the evidence DW1, a director in the office of the 2nd Respondent who testified that their dispatch rider and messenger have dropped the notices at the address of the Appellants
GROUND THREE
The learned judge erred in law when having listed the legal and lawful requirements for a valid revocation of a title to land on the allottee as provided by Section 28 of the Land Use Act, turned a blind eye to the clear inability of the 1st and 2nd Respondents to satisfy the conditions for revocation which include among others, adequate compensation and wrongly held the revocation of the Appellants title by the 1st and 2nd Respondent as proper.
GROUND FOUR
The learned trial judge erred in law and further misdirected himself when he shifted the burden of proving that the land in dispute does not belong to the3rd Respondent (as defendant) on the Appellants (then claimants) where he held that “the claimants have failed to discharge their burden by proving that the land in dispute does not belong to the 3rd defendant”.
GROUND FIVE
The learned trial judge erred in law when relying on the provisions of Sections 49 and 50 of the Land Use Act came to a perverse conclusion that the land in dispute belongs to the 3rd Respondent in the complete absence of a single evidence adduced before the trial Court to that effect.
GROUND SIX
The learned trial judge erred in law and misdirected himself when he erroneously assumed the power which he never had to set aside the duly and lawfully issued Certificate of Occupancy No. JGLN/COM/2015/68 which constituted the fulcrum of the appellants’ case.
GROUND SEVEN
The learned trial judge erred in law which error accessioned serious miscarriage of justice when he suo moto raised the issue of the non-revocation of the purported title of the 3rd Respondent and further relying on the same self-raised issue, came to the irresistibly wrong conclusion that having not revoked the 3rd Respondent’s title, the 1st and 2nd Respondents lacked the power to have allocated the land in dispute to the Appellants.
GROUND EIGHT
The learned trial judge misdirected himself when he relied heavily on the hearsay evidence of all the respondents’ witnesses to hold in favour of the Respondents and against the appellants.
GROUND NINE
The learned trial judge erred in law and at the same time misdirected himself when he held that the claimants now appellants failed to prove the identity of the land in dispute even when the issue of identity was never made an issue and despite the clear identity of the land in dispute admitted into evidence as contained in the Survey Plan No. 22 under the hand and seal of the Surveyor General of Jigawa State as attached to the Certificate of Occupancy which efficacy and reliability was never questioned by any of the Respondents.
GROUND TEN
The judgment of the learned trial Court is perverse and against the weight of evidence.
The Appellants filed their brief of argument on 27/11/2018 but deemed filed on 02/02/2021. They formulated 3 issues for determination as follows:
1. Whether the decision of the learned trial judge that the Appellants herein have not proven their title to the land in dispute in the light of the avalanche uncontradicted evidence as adduced by them can be allowed to stand. (Distilled from grounds 1, 4, 6 and 10).
2. Whether from both the evidence in record and the provisions of Land Use Act 1978 on revocation, it can rightly be said that the Certificate of Occupancy No. JGLN/COM/2015/68 dated the 18th of May, 2015 issued in the name of the 1st Appellant was properly revoked to warrant it being set aside by the trial Court. (Distilled from grounds 2, 3, 6 and 8).
3. Whether the issue of the identity of the land in dispute and the issue pertaining to the revocation of the 3rd Respondent’s title raised suomotu by the trial judge for which parties were not invited to address the Court and for which the Court heavily relied upon to come to the conclusion that the Appellants are not entitled to the declaratory reliefs as sought is right in law (Distilled from grounds 7 and 9).
The 1st and 2nd Respondent’s brief was filed on 19/03/2019 deemed on 28/03/2019 and redeemed on 02/02/21. These set of Respondents adopted the issues for determination as formulated in the Appellant’s brief of argument. The 4th and 5th Respondents filed their brief of argument on 05/04/2019 and it was deemed on 28/05/2019 and redeemed on 02/02/2021. The 4th and 5th Respondents also adopted the issues for determination formulated by the Appellants.
In arguing issue one, learned Counsel for the Appellant M. M. Ibrahim, Esq., submitted that the law has set down five ways of proving title to land and the burden is on the claimant to prove his title in any of the five ways. He stated that the five ways of proving title to land are (i) by traditional history (ii) by production of title documents (iii) acts of ownership by person claiming the land such as selling, leasing etc (iv) by act of long possession and enjoyment of the land and (e) proof of possession of connected or adjacent land. He referred to OYEKAN VS. OYEWALE (2012) ALL FWLR (PT. 623) 1991. That the Appellant was able to establish his case by tendering Exhibits C1 and C6 which are the Certificate of Occupancy and a revenue receipt of payment made. He submitted further that a Certificate of Occupancy is an evidence of title to land. He referred to IZEVBIGIE VS. OLOBOR (2005) ALL FWLR (PT. 290) 1546. He argued that the Appellant had discharged the burden of proof by showing that he has title to the land in dispute and it is for the Respondents to prove otherwise.
He also argued that since DW1 admitted under cross-examination that Exhibit C1 is the only Certificate issued by the Ministry in respect of that land, then his evidence that the said Certificate was revoked without shown proof of revocation of the Certificate remains a hearsay evidence. He referred to OKEGBE VS. AKPOME (2014) ALL FWLR (PT. 731) 1585. Having failed to rebut the authenticity of Exhibit C1, it therefore remains the only proof of title in respect of the land in dispute. He referred to Section 128 of the Evidence Act OGUNLEYE VS. ONI (1990) 2 NWLR (PT. 135 745), CYPRIAN VS. UZO (2016) ALL FWLR (PT. 849) 859 and LAMBE VS. AREMU (2014) ALL FWLR (PT. 729) 1075. Although title document is never viewed as absolute proof, once the Court is satisfied upon enquiry into the evidence placed before it that the documents are genuine, the case of the claimant is established. He referred to INTERNATIONAL BEER& BEVERAGES IND. LTD. VS. MUTUNCI CO. (NIG) LTD (2013) ALL FWLR (PT. 670) 1253.
He submitted that DW1 – DW5 all testified that the land in dispute belongs to the 3rd Respondent despite the fact that being a creation of the law, the 3rd Respondent’s power of land acquisition is regulated by Section 5 (1) and (2) of the River Basin Development Authorities Act, 2004 which confirms the provisions of Section 9 and 42 of the Land Use Act vesting in the State Governors control of lands in the State. Moreso, the Respondents did not plead that the land in dispute belongs to the 3rd Respondent. That issue was only raised at the address stage and Counsel’s address no matter how brilliant cannot take the place of evidence. He referred to CHABASAYA VS. ANWASI (2010) ALL FWLR (PT. 726) 558.
The only documentary evidence before the Court which remained unchallenged in proof of the appellant’s title to the land in dispute are the documents tendered by the Appellants and the allegation by DW1 that the land in dispute was revoked and re-issued to the 3rd Respondent cannot stand as there are no documents to show for it. He who asserts must prove.
He referred to Section 131 of the Evidence Act. See ISA VS. SAJE (2012) ALL FWLR (PT. 644) 127 and FBN VS. TSOKWA (2003) ALL FWLR (PT. 153) 205. The only legal and reliable evidence before the Court is the evidence adduced by the Appellants and the trial Court ought to have acted on the only materials placed before it. He referred to OGUNDELE VS. AGIRI (2010) 9 WRN 1, NALADO VS. ALI (2006) ALL FWLR (PT. 293) 220, EFOBI VS. IKEJI (2010) 10 WRN 137, INAKOJU VS. ADELEKE (2007) ALL FWLR (PT. 353) 1 and OKAFOR VS. NWEKE (2007) ALL FWLR (PT. 368) 1016.
He further stated that even where the 3rd Respondent has been using the land in dispute since the regime of Audu Bako a mere evidence of long possession simpliciter cannot override a valid and proven title to land. He referred to IBRAHIM VS. KATIKAWA (2014) ALL FWLR (PT. 723) 1915, IGWEMADU VS. IGWEMADU (2011) ALL FWLR (PT. 573) 1980 and LAWAL VS. OLUFOWOBI (1996) 2 SCNJ 376. Since the Respondents could not establish their root of title, their purported allegation of long possession cannot avail them. He urged the Court to resolve the issue in favour of the Appellant.
In arguing this issue, learned Counsel for the1st and 2nd Respondents M.B. Adamu, Esq. submitted that in any land dispute, the claimant has a duty to prove his case and not rely on the weakness of the defence. He referred to JUIDI VS. BAKO (2017) LPELR-43362. The claimant has to prove his ownership of land by adducing credible evidence to establish one of the five ways of proving title to land. He referred to ANYI & ORS VS. AKANDE & ORS (2017) LPELR-41973. This the Appellant tried to do by tendering Exhibit C1 issued by the 1st Respondent wherein the grant to the 1st Appellant is for a term of 45 years. Where a grant is pleaded as a mode of acquisition of title over a parcel of land, the root of the title of both the grantor and the grantee must be proved. He referred to FAGGE VS. AMADU (2015) LPELR-25920.
He also argued that the Appellants’ root of title can be traced to the 1st Respondent. However, DW1 admitted that the 1st Respondent had no title to the land in dispute at the time of the issuance of Exhibit C1, that upon realizing that the land in dispute belongs to the 3rd Respondent, the 1st Respondent revoked Exhibit C1 issued to the Appellants. The law is settled that a grantor of land needs to have title to the land before he cold validly transfer the land to another for nemo dat quod non habeat. The 1st Respondent had no title to the land in dispute that it can transfer to the Appellants.
He stated that though the Appellants argued that the C of O is the only title document over the land before the Court, it is trite that a C of O is not a conclusive proof of interest or ownership over a piece of land. He referred to GWAR VS. ADOLE (2003) AL FWLR 773. The Respondents testified that the land in dispute was granted to the 3rd Respondent who has been in possession even before 1973 and this piece of evidence coupled with long possession established the right of the 3rd Respondent over the land for it had a deemed right of occupancy over the land by virtue of Sections 34 and 36 of the Land Use Act. The 3rd Respondent’s deemed right of occupancy can only be revoked under Section 28 of the Land Use Act. He referred to CSS BOOKSHOP LTD. VS. THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE & ORS. (2006) LPELR-824.
On this issue, learned Counsel for the 4th and 5th Respondents, Yakubu A.H. Ruba, Esq., submitted that in an action for declaration of title to land, the claimant must succeed on the strength of his case and not rely on the weakness of the defence. He referred to ALARIBE VS. OKWUONU (2016) 1 NWLR (PT. 1492) 41, NSA VS. ENENE (2016) 7 NWLR (PT. 1511) 275 and FALAYE VS. DADA (2016) 15 NWLR (PT. 1534) 80. The claimant must succeed only by proof of title to land in any of the five ways enumerated in the locus classicus IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227.
He argued that though the Appellants heavily relied on Exhibits C1 and C6, those documents are not enough. The law stipulates that they must adduce credible evidence by establishing exclusive possession or entitle to same and ascertain the root of title. He referred to EKPO VS. ITA (1932) 10 NWLR (PT. 623) 359. Moreso, the Appellants themselves admitted that genuineness of the certificate of title is a paramount factor to be considered by a Court and from the evidence adduced, Exhibit C1 relied upon by the Appellants in proof of their case was issued without authority. And when the 1st Respondent realized its mistake, revoke the said C of O in March 2016 and the revocation certificate is in Exhibit D2. He urged the Court to resolve this issue against the Appellants.
RESOLUTION OF THE ISSUE
The 1st Appellant is the holder of a Certificate of Occupancy in respect of a parcel of land lying and situate in Hadejia town. The C of O was granted to him by the 1st Respondent sometimes in May 2015. The 1st Appellant applied for a permit from the DPR to build a Petrol Station and the response from the DPR indicated that the 4th Respondent has applied for permit on the same piece of land. The 1st Appellant subsequently noticed that sand and building materials were deposited on the land in dispute and upon enquiry the 4th and 5th Respondents were found to be the trespassers. He then filed an action before the trial Court seeking for a declaration of title to the piece of land.
The 1st and 2nd Respondents in their defence maintained that the C of O granted to the 1st Appellant was issued in error as it was found out that the land in dispute belongs to the 3rd Respondents. The 3rd – 5th Respondents also maintained that the land belongs to the 3rd Respondent which was granted to it by the then Kano State Government before the creation of Jigawa State. In its powers as owners, the 3rd Respondent leased the land in dispute to the 4th and 5th Respondents. In exercising acts of ownership over the vast parcel of land neighbouring the land in dispute the 3rd Respondent also leased part of the land to other people.
In an action for declaration of title to land, the burden is on the claimant to prove that he has title to the land in dispute and this he can do by proof of any of the following five ways of proving title to land:
(i) By traditional evidence;
(ii) By production of title documents which must of course be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in the circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more at the date of the contract;
(iii) By acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land or farming on it or on a portion of it.
(iv) Acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece of land with reference to which such acts are done.
(v) 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.
See IDUNDUN & ORS VS. OKUMAGBA (1976) LPELR-1431, PIARO VS. TENALO (1976) LPELR-2919,MOGAJI& ORS VS. CADBURY (NIG) LTD (1985) LPELR-1889 and OYEKAN VS. OYEWALE (2012) ALL FWLR (PT. 623) 1991. In order to establish title to land, any proof of one of the five ways is sufficient as each of them stands or falls on its merits and one of the ways pleaded does not need in the case of failure to prove it the support of another one not directly pleaded as the root of title.
The Appellants are relying on the strength of Exhibit C1 and C6 to prove their case. Exhibit C1 is the Certificate of Occupancy issued to the 1st Appellant and Exhibit C6 is the Jigawa State Revenue Collectors Receipt issued in favour of the 1st Claimant dated 30th April, 2015. There is no doubt that Exhibit C1 was issued to the 1st Appellant by the 1st Respondent. This fact was confirmed by DW1 who is the Director of Land Administration of the Ministry of Lands, Housing and Urban Development, Jigawa State. Therefore, facts admitted need no further proof. See OLUFOSOYE & ORS VS. OLORUNFEMI (1989) NWLR (PT. 95) 26, BUNGE VS. AG RIVERS STATE & ORS (2006) 12 NWLR (PT. 995) 513 and AJIBULU VS. AJAYI (2013) LPELR-21860.
Now, the question begging for an answer is whether mere tendering of the Certificate of Occupancy in evidence and a receipt evidencing payment of ground rents in Exhibits C1 and C6 respectively is enough to confirm title to the land in dispute on the Appellants. In OGUNLEYE VS. ONI (1990) LPELR-2342 AT 69 – 70, Nnaemeka-Agu, JSC held that:-
“Title … implies the existence of facts from which the right to ownership and possession could be inferred, limitation being only in terms of time depending on whether such a title is freehold or leasehold, and so on. For various titles to land are carved out on a plane of time. But all land title deeds are monuments of instruments of title. So, they are at least prima facie evidence of title. On the other hand, a Certificate of Occupancy only gives the right to use and occupy land. It neither confers nor is it necessarily an evidence or title.”
Also in ADOLE VS. GWAR (2008) LPELR-189 AT 17; Onu, JSC held that:-
“A certificate of Occupancy issued on the Land Use Act it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right, interest or title without more and may in appropriate cases be effectively challenged and rendered in valid, null and void.”
See SANNI & ANOR VS. AYINDE & ANOR (2014) LPELR-22546 and GEN. SHUAIBU (RTD) VS. KOLEOSHO(2021) LPELR-53435.
From the above, it can be seen that the erroneous belief of the Appellants that they have proved their claim by tendering in evidence their Certificate of Occupancy is not in tune with the position of the law. Exhibit C1 tendered by the Appellants is at best evidence of prima facie right or interest in the land in dispute that can be challenged in a Court of law. See OLOHUNDE VS. ADEYOJU (2000) 14 WRN 160 and KYARI VS. ALKALI (2001) 31 WRN 88. This is so because the existence of a Certificate of Occupancy cannot estopp the Court from enquiring into the validity and existence of the title the person claimed to possess. The Apex Court has reiterated that the production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of the number of questions including:-
(i) Whether the document is genuine and valid;
(ii) Whether it has been duly executed, stamped and registered;
(iii) Whether the grantor had the authority and capacity to make the grant;
(iv) Whether the grantor had infact what he purported to grant; and
(v) Whether it has the effect claimed by the holder of the instrument.
See ROMAINE VS. ROMAINE (1992) 4 NWLR (PT. 238) 650 and AKINDURO VS. ALAYA (2007) 15 NWLR (PT. 1057) 312.
Now, the 1st and 2nd Respondents, the 3rd Respondent and 4th and 5th Respondents in the separate statement of defence averred that the 3rd Respondent has title to the piece of land having been granted same by the old Kano State as part of the Federal Government’s Regional Agricultural Development Scheme and the land does not belong to the 1st Respondent. See Paragraphs 10 – 16 of the 1st and 2nddefendant’s joint statement of defence:
(10) The Defendants aver further that the right of occupancy in issue forms part of land by the then Old Kano State Government (now including Jigawa State) to 3rd Defendant as part of the regional agricultural development scheme; (11) The defendants aver that sometime in the year 2009 there was a desire by the Nigerian National Petroleum Corporation (known as NNPC) to build NNPC Mega petrol stations in the five Emirate Councils across the State and the NNPC Showed interest in the land in issue in this matter as the chosen site for the construction of the Petrol Station at Hadejia town; (12) The Defendants aver that when NNPC approached the Jigawa State Government on its desire, the State Government approached the 3rd Defendant with a proposal to acquire part of the land in possession of the 3rd Defendant in Hadejia Local Government Area, including the land in issue; (13) The Defendants aver that series of meetings were held between the 3rd Defendant and 1st and 2nd Defendant to finalise terms of agreement for acquisition of the Defendants land in Hadejia; (14) The Defendants aver that in April, 2010, the 2ndDefendant acting on instruction of the then Executive Governor of Jigawa State, Alh. Sule Lamido in his zeal to hasten the development by a Federal Government agency in Hadejia town, directed that a Right of Occupancy be issued to NNPC over the land in dispute to enable it start construction of the Petrol Station in anticipation of conclusion of the agreement with the 3rd Defendant; (15) The Defendants aver further that the right of occupancy issued to NNPC was revoked on 5th May, 2015 and same was re-allocated to the 1st Claimant on instructions of the then Governor of Jigawa State on 19 May, 2015; 16. The Defendants aver that the agreement for acquisition of the land in Hadejia by the 1st and 3rd Defendants was not finalized as no form of compensation nor a notice of revocation was issued to the 3rd Defendant up till now.
The 3rd Respondent also averred that the land forms part of the larger portion of land granted to it by the then Kano State Government. In paragraphs 4 and 5 of its statement of defence, it averred thus:
4. Further to paragraph 1 above and in specific answer to paragraphs 8, 9, 15, 16 and 20 of the statement of claim, the 3rdDefendant avers that the land in dispute belongs to the 3rd Defendant forming part of a larger portion of land belonging to the 3rd Defendant, same having been given to the 3rd Defendant by the then Kano State Government as part of the Federal Government’s Regional Agricultural Development Scheme.
5. Further to paragraph 4 above, the 3rd Defendant avers that the land in dispute does not belong to Jigawa State Government and Jigawa state Government acting through the State Governor or any official for that matter could not have validly allocated same to the Claimants.
In the light of the above depositions and oral evidence led by the Respondents which was in line with depositions, the validity of the Certificate of Occupancy was thus questioned. The trial Court had a bounden duty to consider whether the 1st Respondent had the authority and capacity to issue Exhibit C1, the 1st Respondent had what he purportedly granted to the 1st Appellant. That is the reason for the stance of the law that a C of O is not an evidence of title. The trial Court had this to say at P. 305 of the record:-
“… the claimants tried to establish their title through a grant made by the 1st and 2nd defendants but they failed to establish the title of their grantor as to whether or not the grantor has a title over the land in dispute despite being their duty to do so. It is therefore my humble view that failure of the claimants to so establish the title of their grantor would affect the case of the claimants as the root of title of the grantor was not clearly established.”
It is to be noted that all the Respondents pleaded that title to the land in dispute was vested in the 3rd Respondent which is an agency of the Federal Government since its creation and the grant was made by the old Kano State. The Appellant must therefore challenge and controvert the deposition and oral evidence adduced by the Respondents. The law is well settled that where there is unchallenged and uncontradicted evidence adduced by a party, the Court must act on such evidence except where the evidence in itself is self-defeating and unacceptable. See DAUDA VS. ALIYU (2016) LPELR-41293; LAWAL & ORS VS KAZEEM (2018) LPELR-45324.
The Appellants tendered in evidence the C of O granted as a proof of ownership but did not establish the title of the 1st Respondent. The Appellants further relied on Section 2, 3, 6, 9 and 45 of the Land Use Act to hold on to the view that all lands in the State belongs to the 1st Respondent without minding the fact that the land in dispute was allocated to the 3rd Respondent even before the creation of the Appellant’s grantor.
Section 2 of the Land Use Act is on control and management of land vesting in the Governor of a State, the power of control and management of lands in an urban area of each State. See SAVANNAH BANK VS. AJILO (1989) 1 NWLR (PT. 92) 305 and OGUNLEYE VS ONI (1990) LPELR-2342. The Act also empowers the Governor of a State to designate the parts of the area of the territory of the State as an urban area. See Section 3 of the Land Use Act, BAKIN SALATI VS SHEHU (1986) LPELR-2986 and SADIKWU VS DALORI(1996) LPELR 2972. Section 6 of the Act empowers a Local Government to grant customary right of occupancy to any person or organization on any land for agricultural, residential or other purposes. See ABIOYE VS YAKUBU & ORS (1991) LPELR-43 and JAGABA & ORS VS UMAR (2016) LPELR-40456. The Governor also has power to issue a statutory right of occupancy to any person who applies for same or to an occupant of a land under customary rights. See Section 9 of the Act and NKWOCHA VS GOVERNMENTOF ANAMBRA STATE & ORS (1984) LPELR-2052. Lastly the power of the Governor under the Act are delegable to a State Commissioner. See Section 45 of the Act and UKACHUKWU VS. GOVERNMENT OF BORNO STATE & ORS (2017) LPELR-43271.
All the above provisions relied upon by the Appellant in support of his argument that the land in the State belong to the 1st Respondent who can allocate same to any person he so deserves without minding the fact that the land in dispute was earlier allocated to the 3rd Respondent even before the creation of the 1st Respondent.
From the evidence adduced by the Respondents, it can be seen that the 3rd Respondent’s title which has not been effectively revoked by the 1st Respondent subsists and was the first in time than the Appellant’s title. This means that as at the time of the issuance of Exhibit C1 to the Appellants, the 1st Respondent had no title to confer to anyone without first revoking the earlier title of the 3rd Respondent which he did not do. Therefore, the Appellants’ grantor had no valid title to grant to the Appellants.
The consequences of the 1st Respondent’s action is well settled in numerous decisions of this Court and the Supreme Court that where there is a subsisting right of occupancy, it is good and superior against any other subsequent right. The grant of the subsequent right of occupancy over the same piece of land will therefore be merely illusory and invalid. This is so because where there are competing interests by two parties claiming ownership on a piece of a land from a common grantor, the competing interests will rank in order of their creation based on the equitable maxim qui prior est tempore portiorest jure which means that he who is earlier in time has a stronger claim in law. See ABIODUN VS FANOIKI & ANOR (1990) 2 NWLR (PT131) 137, GEGE VS NANDE (2006) 10 NWLR (PT. 988) 256 and AYANWALE VS ODUSAMI (2011) 125 CNJ 362.
Notwithstanding, the fact that the Land Use Act vested all land in the territory of a State to the Governor, there is an important exception with respect to land held by the Federal Government or any of its agencies. Section 49 of the Act provides thus:-
49 (1) Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and accordingly, any such land shall continue to vest in the Federal Government or the agency concerned.
(2) In this section, agency includes any statutory corporation or any other statutory body (whether corporate or incorporate) or any company wholly owned by the Federal Government.
The above provision saved an existing title to land held by the Federal Government or any of its agencies and by that, no State Government can exercise any right over such lands. The 3rd Respondent, a Federal establishment and an agency of the Federal Government appears to fall under the provision of Section 49 of the Act.
In the circumstances, the trial Court is right to hold that the Appellants did not prove their title to land. This is evident in the position of the 1st and 2nd Respondents who were instrumental to the grant of title to the Appellants. It is instructive to note that title to the land was granted to the Appellants in ignorance of the fact of an existing title granted to the 3rd Respondent by the old Kano State Government. Therefore, as at the time of granting title to the Appellants the 1st and 2nd Respondents had no title to confer to anyone. This issue therefore fails and it is resolved against the Appellants and in favour of the Respondents.
Issue two deals with whether the Certificate of Occupancy granted to the Appellants was properly revoked. Learned Counsel for the Appellants submitted that by Section 28 of the Land Use Act, the Governor has the power to revoke any right of occupancy on the ground of overriding public interest only and where the Governor exercises such power, a notice of revocation must be served on to the holder and adequate compensation be paid to the holder. He referred to Section 29 of the Land Use Act. In the appeal at hand, there is no service of notice of revocation, no compensation paid, no reason given for the revocation and no evidence that the Appellants breached any of the terms and conditions. He referred to OKEOWO VS. AG OGUN STATE (2010) ALL FWLR (PT. 540)1209, WUYAH VS JAMA’A LOCAL GOVERNMENT (2013) ALL FWLR (PT. 659) 1171 AND GOVERNMENT OF KWARA STATE VS NICON PLC(2010) 47 WRN 155.
Learned Counsel for the 1st and 2nd Respondents submitted on this issue that the power of the Governor to grant a statutory right of occupancy is not absolute. The power must be exercised in conformity with the Land Use Act. He referred to GWAR VS. ADOLE (2003) FWLR (Pt 247) 771. Under the Act, a statutory right of occupancy cannot be granted on a land subject to another right of occupancy without first revocation and acquiring the earlier right of occupancy. He referred to ADOLE VS. GWAR(2008) FWLR (PT. 1227) 1234.
He argued that since evidence show that the Certificate of Occupancy issued to the Appellants was issued in error, its subsequent cancellation and issuance of a revocation notice to the Appellants was proper. He also stated that the grant made to the 1st Appellant did not confer any title as such the provisions related to the revocation of right of occupancy need not be strictly complied with. But the 1st and 2nd Respondents served the revocation notice to the 1st Appellant and also sponsored radio broadcasts to that effect.
Learned Counsel for the 4th and 5th Respondents argued that there is evidence that the land in dispute was originally allocated to the 3rd respondent by the old Kano State and same was not revoked. Thus the title of the 3rd Respondent which was not revoked or extinguished is superior to the title of the Appellants.
RESOLUTION OF THE ISSUE
The Appellants contended that the 1st and 2nd Respondents did not follow the provision of Sections 28 and 29 of the Land Use Act dealing with revocation of land and compensation payable on revocation of land. Section 28 and 29 of the Land Use Act provides that:-
28 (1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a statutory right of occupancy means:
(a) The alienation by the occupier by assignment, mortgage, transfer of possession, sublease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or any regulations made hereunder;
(b) The requirement of the land by the Government of the State, or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes or oil pipelines or for any purpose connected therewith.
(3) Overriding pubic interest in the case of a customary right of occupancy means:-
(a) The requirement of the land by the Government of the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation.
(b) The requirement of the land for mining purpose connected therewith.
(c) The requirement of the land for the extraction of building materials.
(d) The alienation by the occupier by sale, assignment, mortgage, transfer of possession, sublease, bequest or otherwise of the right of occupancy without the requisite consent or approval.
(4) The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes.
(5) The Governor may revoke a statutory right of occupancy on the ground of:-
(a) A breach of any of the provisions which a Certificate of Occupancy is by Section 10 of this Act deemed to contain.
(b) A breach of any term contain in the Certificate of Occupancy or in any special contract made under Sections 8 of this Act.
(c) A refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under Subsection (3) of Section 9 of this Act.
(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.
(7) The title of the holder of the right of occupancy shall be extinguished on receipt by him of a notice given under Subsection 6 of this Section or on such later dated as may be Stated in the notice.
From the above provision, the Governor can only revoke a right of occupancy for overriding public interest which has been defined both in respect of statutory and customary rights of occupancy. In the exercise of such powers, the holder of the right of occupancy must be given notice in advance and for a revocation of title to be valid it must comply with the above section. See OLOHUNDE VS. ADEYOJU(2000)10 NWLR (PT. 676) 562 and IBRAHIM VS MOHAMMED (2003) LPELR-1409.
Section 29 of the Act on the other hand stipulates compensation payable on revocation of right of occupancy by the Government in certain cases. The Act went further to enumerate how the compensation should be paid to a holder of a statutory right of occupancy or customary right of a occupancy whether such holder is an individual or community.
Now, the law is well settled that where a statutory right of occupancy is issued in favour of a person over a piece of land when a valid right in the said land exists in another person and that right has not been revoked, the statutory right of occupancy becomes a worthless document because there cannot be in existence two title holders over one and the same piece of land at the same time. As of necessity, one must be invalid and the invalid one must be the latter right granted without first revoking the earlier title. See TENIOLA & ORS VS. OLOHUNKUN (1999) LPELR-3141, ILONA VS. IDAKWO (2003) 11 NWLR (PT. 830) 53, OMIYALE VS. MACAULAY (2009) 7 NWLR (PT. 1141) 597 and MUHAMMED VS. BELLO & ORS(2019) LPELR-46894.
Although Section 28 of the Land Use Act did not envisage this type of situation where a statutory right was granted in error, it must be pointed out that this type of revocation does not require an express provision of the law to give power to the Governor to revoke any title granted in error for there can be no two valid titles to a piece of land existing side by side. The Governor can at any time correct the error made in making a grant of a piece of land subject to another person’s right or interest, he has an inherent power to correct a mistake of fact arising from the subsequent grant of a right of occupancy by revoking such grant. See SAUDE VS. ABDULLAHI (1989) 4 NWLR (PT.116) 387.
Sections 28 and 29 of the Land Use Act was called in aid by the Appellants to substantiate their arguments that the purported revocation was null and void having not complied with the law. But it is to be noted that Section 28 Stated that the ground of revocation shall be for an overriding public interest and proceeded to enumerate what overriding public interest is in any given case. A closer look at the provision of Section 28 will reveal that the Section is inapplicable to the facts of this case as the said revocation we are dealing with here was necessitated by an error in granting title to the Appellants. For Section 28 to apply, the revocation must have been done for any cause enumerated in the Section. That being the case, the Appellants were wrong to rely on the said provision for the fact that the express mention of one thing is the exclusion of others not mentioned. In AG BENDEL STATE & ORS VS. AIDEYAN(1989) 9 SC 127, the Supreme Court held that:-
“It is now firmly established that in the construction of a statutory provision, where a statute mentions specific things or persons the intention is that those not mentioned are not intended to be included.”
See AG ONDO STATE VS. AG. EKITI STATE (2001) LPELR-622, BUHARI & ANOR VS. YUSUF & ANOR (2003) LPELR-812 and SHINKAFI & ANOR VS. YARI & ORS (2016) LPELR-26050.
A closer look at both Sections 28 and 29 of the Land Use Act will reveal that the latter Section is inapplicable to the facts of this case. The reason is that for the Section to apply the revocation must have been done for any cause enumerated in Section 28. I have earlier pointed out that the cause of the revocation in the instant appeal is not covered by the Act and that being the case, Section 29 would seem not to apply to this type of revocation having not arisen from any of the causes enumerated in Section 28 of the Act. Moreover, the trial Court has found out that based on the evidence of DW1, the Appellant was served with the notice of revocation. In this type of situation, the revocation of the Appellants’ title was properly done by the 1st and 2nd Respondents.
No two title documents to a piece of land can be allowed to exist at the same time and where there are two titles in existence, the priority of interest would come to play and the earlier title takes supremacy over a latter title. See AWOYEGBE VS. OGBEIDE (1988) 1 NWLR (PT. 73) 695, TEWOGBADE VS. OBADINA(1994) 4 NWLR (PT. 338) 326, OWIE VS. IGHIWI (2005) 5 NWLR (PT. 917 184, UGBO & ORS VS. ABURIME(1994) LPELR-3314 and AYANWALE VS. ODUSAMI (2011) LPELR-8143. The trial Court is therefore right to hold that the Appellants’ Certificate of Occupancy was properly revoked based on the evidence adduced at the trial. This issue is accordingly resolved against the Appellants as well.
On issue three, learned Counsel for the Appellants submitted that the trial Court’s finding on identity of the land on dispute and non-revocation of the 3rd Respondent’s title were issues not joined by the parties but raised suomotu by the Court and proceeded to resolve same without affording the parties an opportunity of an address on the issues raised suomotu. He further stated that the issue of identity of the land was raised in an address by Counsel to the 3rd Respondent and the law is settled that address of Counsel no matter how brilliant cannot take place of evidence. He referred to CPC VS. INEC (2012) ALL FWLR (PT. 617) 605, ABUBAKAR VS. YAR ADUA (2008) ALL FWLR (PT. 404) 1409 and CHABASAYA VS. ANWASI (supra).
He also argued that the argument on identity of land was not an issue at the trial in view of the fact that the survey plan of the land in dispute was tendered in evidence and the purpose of the survey plan is to identity the land in dispute. He referred to AREMU VS. CHUKWU (2011) ALL FWLR (PT. 598) 979.
Learned Counsel for the 1st and 2nd Respondents submitted on this issue that the issue of non-revocation of the title of the 3rd Respondent was pleaded by the Respondents and evidence on the issue was also adduced. He referred to Pp. 136 – 144 of the record of appeal. He however admitted that the issue of identity of the land was raised by the 3rd Respondent in his address.
Our law is well settled that a Court should confine itself to issues raised before it by parties both in their pleadings and evidence.
The law did not bar a Court from raising issues suomotu, where a trial Court chooses to raise a point suomotu, parties to the suit must be given an opportunity to address the Court on the issue raised before a determination of that issue. See TINUBU VS. IMB SECURITIES PLC (2001) LPELR-3248 and ODEDO VS. PDP (2015) LPELR-24738.
Now generally, a Court is expected or is duty bound to confine its findings and decision to issues raised by the parties in their pleadings and evidence. The Court has no power to formulate cases for the parties or to speculate on evidence of parties. Where a Court ventures to speculate on evidence of parties it might entangled itself in the dispute of parties from which it may be difficult to extricate itself. A Court can only be accused of raising an issue suomotu if the issue was never raised by any of the parties in the litigation. A Court can therefore not be accused of raising an issue suomotu if that issue was raised by a party or both parties to the case. In ENEKWE VS. IMB (NIG) LTD. & ORS. (2006) LPELR-1140, Tobi, JSC (of blessed memory) held that:-
“A judge has the right in our adjectival law to use particular words and phrases which in his opinion are germaine to his evaluation of facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for Counsel to castigate him or accused him of raising issues suomotu. A judge can only be accused of raising issues suomotu if the issue was never raised by any of the parties in litigation.”
The Appellants raised two points which according to them were issues raised suomotu by the trial Court who proceeded to resolve them without affording parties an opportunity of being heard. These issues are on identity of the land in dispute and non-revocation of the 3rd Respondent’s title by the 1st and 2nd Respondents. These are all issues offact which if the Appellants allegations are true require the Court to afford parties an opportunity of being heard before a decision is taken on them one way or the other. See ARAKA VS. EJEAGWU (2000) 15 NWLR (PT. 692) 684, ALLI VS. ALESINLOYE (2000) 6 NWLR (PT. 660) 177 and OSHODI VS. EYIFUNMI (2000) 13 NWLR (PT. 684) 298.
First, on the issue of identity of the land in dispute, it should be seen that the Appellants raised it in their statement of claim. Paragraph 10 thereof states thus:-
10. The plaintiffs aver that the piece of land in dispute more properly described by the survey plan No. 22 duly signed by the Jigawa State Surveyor General on the 18th March, 2010 was allocated to the plaintiffs by the then Executive Governor for purposes of constructing filing station therein in line with the aims and objectives of 1st plaintiff.
The above averment to my mind raised the issue on the identity of the land in dispute and same was an evidence before the Court as can be seen from the Appellants’ first witness’ statement on oath which was adopted at the trial.
Secondly, on the issue of non-revocation of the 3rd Respondent’s title, it can be seen that same was pleaded by the 1st and 2nd Respondents in paragraph 16 of their joint statement of defence. The paragraph states thus:-
16. The defendants aver that the agreement for the acquisition of the land in Hadejia by the 1st and 3rd Defendants was not finalized as no form of compensation nor a notice of revocation was issued to the 3rd Defendant up till now.
The 1st and 2nd Respondents by the above averment have raised the issue of non-revocation of the 3rd Respondents’ title to the land. Evidence on the above was led through their witness who reiterated the above averment in paragraph 10 of the witness’ statement on oath adopted at the hearing.
It seems therefore, the Appellants have misunderstood the true meaning and concept of raising an issue suomotu by the Court. Where an issue(s) is raised in a pleading of a party or parties and evidence was laid on the issue, it cannot be said to be a new issue. So long as an issue is pleaded and evidence led on it, the trial Court would be perfectly right to make reference, evaluate that piece of evidence and resolve same even where the Appellants did not avert their minds to the issue. The yardstick is whether the issue was properly raised and evidence led on that issue. The trial Court in my mind was perfectly right to make findings on the issue of identity of land and non-revocation of the 3rd Respondent’s title by the 1st and 2nd Respondents. The point did not question the findings of the trial Court on that and as such we will not venture into the correctness or otherwise of the trial Court’s decision on that point. The trial Court to my mind did not raise the two issues suomotu, the issues were raised by parties themselves and evidence was led on the two issues. The trial Court was perfectly right to have made findings on the issues. This issue is equally resolved against the Appellant and in favour of the Respondents.
With the resolution of the three issues for determination against the Appellants, the appeal is without merit and same is hereby dismissed. The judgment of the trial Court in Suit No. JDU/34/2016 is hereby affirmed with N100,000.00 to the Respondent.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment in this appeal just delivered by my learned brother, A. M. Lamido, JCA.
I agree with His Lordship’s line of reasoning and conclusions, which I adopt as mine, that the appeal is devoid of merit.
For the reasons aptly stated in the leading judgment, I equally dismiss the appeal and abide by the consequential orders made therein including that of costs.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, ABUBAKAR MU’AZU LAMIDO, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusion and the final orders made therein.
Appearances:
MAGAJI MATO IBRAHIM, ESQ., with him, SHEHU GALADIMA UBALE, ESQ., and FENGAK OBADIAH GOKIR, ESQ., BASHIR IBRAHIM SALISU, ESQ., SALIMA WADA UMAR (MRS.) and SANUSI YAHUZA, ESQ. For Appellant(s)
MUSTAPHA B. ADAMU (CHIEF STATE COUNSEL), with him, A.H. HASSAN (SENIOR STATE COUNSEL) – for 1st & 2nd Respondents.
ABDULLAHI A. DURO, ESQ., with him, SANI IDRIS, ESQ. and T.M. EDEMA, ESQ. – for 3rd Respondent.
YAKUBU A.H. RUBA, ESQ., with him, K.S. ADAMU, ESQ., A. HUSSAINI, ESQ., S.S. SHEHU, ESQ., C.K. UDEOBA, ESQ. and H.B. ABUBAKAR, ESQ. – for 4th & 5th Respondents. For Respondent(s)
