IBRAHIM v. MU’AZU & ORS
(2022)LCN/16825(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Monday, May 30, 2022
CA/G/317/2019
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
MOHAMMED UMAR IBRAHIM APPELANT(S)
And
1. NASIRU DANLADI MU’AZU 2. MINISTRY OF LAND AND SURVEY, GOMBE STATE 3. MUHAMMED INUWA YAHAYA RESPONDENT(S)
RATIO
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
There are five (5) ways to prove title to land as enunciated in a plethora of pronouncements by the superior Courts among which are BABA-IYA VS SEKILE (2006) 3 NWLR (PT 965) P. 508 at 528 wherein it was stated that; title to land may be proved by any of the following:
i. By traditional evidence
ii. By production of title documents, duly authenticated.
iii. By acts of selling, leasing, renting out all or part of it or farming on it or portion of it.
iv. Acts long possession and enjoyment of land
v. Proof of possession of connected or adjacent land in circumcisions rendering it probable that the owner of such land would in addition be the owner of the land in dispute. See BABA-IYA VS SEKILE (2006) 3 NWLR (PT 965) P. 508 at 528; IDUNDUN VS OKUMAGBA (1976) 9-10 SC & 77 and NKADO VS OBIANO (1997) 5 NWLR (PT. 503) P. 31. PER BDLIYA, J.C.A.
FACTOR TO BE PRESENT FOR A CERTIFICATE OF OCCUPANCY TO BE VALID
For a certificate of occupancy to be valid it must be issued after the grant of a right of occupancy under Section 5 (1) (a) or Section 6 (1)(a) and (b) or Section 34(1) of the Land Use Act. A certificate of occupancy must not be issued when there is in existence another one issued over same land. In MADU VS MADU (2008) 6 NWLR (Pt. 1083) P. 286 at 325, the Supreme Court held that for a certificate of occupancy, under the Land Use Act, to be valid, there must not be in existence, at the time the certificate was issued, a statutory or customary owner of the land in issue who was not divested of his legal interest to the land prior to the grant. However, this principle of law is only relevant in cases where a claimant has proved that he has a prior and un-extinguished title to the land so that the new right of occupancy cannot over-ride, extinguish or have priority over that existing right. In APOSTOLIC CHURCH VS OLOWOLENI (1990) 10 SCNJ P. 69 at 25, the Supreme Court also held that if the issuance of a certificate of occupancy was not in accordance with the Land Use Act, the certificate is defective and the holder has no basis for a valid claim title over the land. See also AZI VS REG. TRUSTEES OF EVAN. CHURCH (1990) 5 NWLR (Pt. 195) P. 111 at 121. PER BDLIYA, J.C.A.
WHETHER OR NOT A CERTIFICATE OF OCCUPANCY IS CONCLUSIVE EVIDENCE OF ANY INTEREST OR VALID TITLE TO LAND IN FAVOR OF A GRANTEE
A certificate of occupancy issued under the Land Use Act is not conclusive evidence of any interest or valid title to the land in favour of the grantee. It is only a prima facie evidence of such right, interest or title without more, and may, in appropriate cases, be challenged and rendered invalid, null and void. Consequently where it is proved, that another person, other than the grantee of a certificate of occupancy had a better to the land, the Court may set it aside on the ground that it is invalid, defective or spurious. See also the following decided cases by the Supreme Court and the Court of Appeal; DZUNGWE VS GBISHE; OGUNLEYE VS ONI (1990) 2 NWLR (Pt. 135) P. 745; SAUDE VS ABDULLAHI; OLOHUNDE VS ADEYOJU AND LABABEDI VS LAGOS METAL IND. LTD (1990) 2 NWLR (Pt. 135) P. 745.
A certificate of occupancy or any other document of title is prima facie evidence of title, but will give way to a better title. A person in whose name a certificate of occupancy has been issued can only validly hold on to it if he can show that he legitimately acquired the land. He should be able to show that the certificate was issued in his favour after he had properly acquired the land. Thus, where it is proved that another right of occupancy resides in another person, and such right has not been extinguished, the certificate of occupancy is liable to be declared invalid. See also the following cases; ILONA VS IDAKWO (2003) 11 NWLR (Pt. 830) P. 53; ESO VS ADEYEMI; AZI VS REG. TRUSTEES OF THE EVAN. CHURCH OF WEST AFRICA (1991) NWLR (Pt. 155) P. 113; AND REG. TRUSTEES, APOSTOLIC CHURCH VS OLOWOLENI (1995) 6 NWLR (Pt. 158) P. 514. PER BDLIYA, J.C.A.
THE POSITION OF LAW WHERE TWO OR MORE PERSONS CLAIM TITLE TO LAND OR A RIGHT OF OCCUPANCY OVER THE SAME LAND
The law has been settled for long that where two or more persons claim title to land or a right of occupancy over the same land, the first in time takes priority as it is stronger in law. The latter grantee is deemed not to have been granted any title or right of occupancy. A grantor of title or right of occupancy cannot give title or right of occupancy to two persons, one must be valid, the other invalid. The law is trite one cannot grant title over a parcel of land and still be in legal position to grant such title to another. He would have no such title to grant to the latter grantee under the doctrine of “nemo dat quad non habet”. SeeIBB Ind. Ltd. v. Mutunci Co. (Nig.) Ltd. (2012) 6 NWLR (Pt. 1297) P. 487 at 524; Omiyale v. Macaulay (2009) 7 NWLR (Pt. 1141) P. 597; Ibrahim v. Osunde (2009) 6 NWLR (Pt. 1137) P. 382; Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) P. 1 and Dantsoho v. Mohammed (2003) 6 NWLR (Pt. 817) P. 457. PER BDLIYA, J.C.A.
THE POSITION OF LAW WHERE IS AN EXISTENCE OF ANOTHER CERTIFICATE OF OCCUPANCY WHICH HAS NOT BEEN REVOKED IN ACCORDANCE WITH THE LAW
Where two or more persons claim title to land by virtue a certificate of occupancy, the first in time takes precedence over and above the former. Furthermore, the law is trite, any title or right of occupancy acquired over a parcel of land when there is in existence another certificate of occupancy, which has not been revoked in accordance with the law, the latter title cannot be valid in law. See Adole v. Gwar (2008) 11 NWLR (Pt. 1099) P. 562; Salami v. Oke (1987) 4 NWLR (Pt. 63 P. 1; Ajilo v. SBN Ltd (1989) 1 NWLR (Pt. 97) P. 555 and Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) P. 745.
The evidence adduced before the lower Court clearly showed that the appellant’s title to the disputed land has been predicated on Exhibits 4, 5, and 6, which were issued on 19-01-2010 and 5/9/2016, whereas that of the 3rd respondent was issued on 15-08-2008, verified on 23-1-2017. The certificate of occupancy issued in 2008 supersedes and takes priority over the one issued in 2011. Where two persons trace their root of title to the same source, the earlier in time prevails. See Ejuetam v. Olaiya (2001) RSCNI P. 140 at 168. The certificate of occupancy Exhibits 4, 5, and 6 and the grant of the right of occupancy Exhibits 7 and 8 on which the appellant relied on to prove his title to the disputed parcel of land, having been granted and/or issued at a time the 3rd respondent had acquired title over same land by virtue of Exhibits 10, 11 to 12 which were in existence, and not having been revoked in accordance with the law, are void ab initio, null and void. See Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) P. 53; Eso v. Adeyemi (1994) 4 NWLR (Pt. 340) P. 558; Azi v. RTECWA (1991) NWLR (Pt. 155) P. 113 and RTAC v. Olowoleni (1995) 6 NWLR (Pt. 158) P. 514. PER BDLIYA, J.C.A.
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): Before the Gombe State High Court of Justice, presided by Justice Paul Idi Appollos, (hereinafter referred to as the lower Court), the appellant (as the plaintiff) instituted Suit No: GM/29/2016, against the respondents by a Writ of Summon and an amended statement of claim seeking the following reliefs:
The plaintiff is a beneficial owner of the premises attached together with R of O No. GM/14660 an area about 1200:00m2 plot E-43 on GDP/4 layout which property lying and situated at city center behind Federal Medical Center Gombe State. The plaintiff acquired title in the premises via an allocation letter dated 1st April, 2011.
The 1st Defendant claimed to have been re-allocated with the land by the 2nd Defendant after the plaintiff has been in possession for five consecutive years and developed the land.
Since then the plaintiff has been in possession of the plot wherein he build a security room to lintel level and has dug a foundation for the fencing of the plot against trespassers until same foundation dug by the plaintiff and without the consent, permission or authority of the plaintiff.
Whereof the plaintiff is aggrieved by the action of the Defendants and therefore claims against the Defendant as follows:
1. A Declaration that the premises in dispute with R of O No. GM/14660 on plot E-43 on GDP/4 Layout which property lying and situate at city center behind Federal Medical Center Gombe State belongs to the Plaintiff.
2. A Declaration that the Defendants’ entry into the plaintiff’s premises aforesaid and interference with the land thereon without the consent authority or permission of the plaintiff amount to trespass.
3. A Declaration that the purported re-allocation of the same plot with R of O No. GM/14660 on plot E-43 on GDP/4 Layout which property lying and situate at city center behind Federal Medical Center Gombe State as claimed by the 1st Defendant and/or any other person if any by the 2nd Defendant is null and void.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants whether by themselves, agents, privies, cohorts, representatives or any person deriving authority from the Defendants from committing further trespass and/or tempering with plaintiff’s title on the premises with R of O GM/14660 on plot E-43 on GDP/4 Layout which property lying and situate at city center behind Federal Medical Center Gombe State.
5. AN ORDER of this Hon. Court against the defendants to jointly pay the plaintiff the sum of One Million Naira (N1,000,000.00 only) being the General damages for trespass and the inconvenience caused by the Defendants.
6. AN ORDER of this Hon. Court against the Defendants to jointly pay the plaintiff the sum of three Hundred Thousand Naira (N300, 000.00) only being the professional fees paid for engaging the service of lawyer in prosecuting this case as special and specific damages against the Defendants.
7. AN ORDER of this Hon. Court against the defendants to jointly pay for the cost of this action.
The background facts/events culminating to the institution of the suit before the lower Court and the subsequent appeal to this Court, are simple and straightforward. The appellant (as the plaintiff) claimed that he was cleared by a Committee on Recovering of Government Plots as the bonafide owner of plot No. E-43 in Layout. No. GDP/4 with right of Occupancy No. GM/14660, was communicated to him vide letter dated the 19th of January, 2016, signed by the Permanent Secretary, Ministry of Land and Survey, Gombe State and the Chairman of the Screening to Committee.
The 3rd respondent claimed that the land in dispute, plot no. E/43 on Layout No. GDP/4 was allocated to him in 2008, by the Government of Gombe State vide letter dated 16th of July, 2008, which was confirmed by the Screening Committee, Ministry of Lands and Survey, Gombe State as the bonafide owner of the said plot. The said letter was signed by the Permanent Secretary, Ministry of land and Survey, Gombe State, on the 23rd day of January, 2017. The chairman of the Screening Committee, also signed the document. When the appellant discovered that the 3rd respondent was on the parcel of land No. E/43 Layout No. GDP/4, he instituted the said suit at the lower Court. The suit was determined by the lower Court in a judgment delivered on the 5th of February, 2019, wherein, the claims of the appellant were refused and dismissed as lacking in merit.
Dissatisfied with the judgment of the lower Court, the appellant appealed to this Court vide a notice of appeal filed on the 8th of May, 2019.
The appellant’s brief of argument was filed on the 21st January, 2022, but deemed properly filed and served on the 26th of January, 2022. The 1st and 3rd respondents’ brief of argument was filed on the 23rd of February, 2022. The 2nd respondent filed brief of argument on the 21st of February, 2022. A reply brief was filed by the appellant on the 28th of February, 2022. The appeal was heard by this Court on the 2nd of March, 2022, whereat the learned counsel to the parties adopted their respective briefs of argument. Learned counsel for the appellant did urge the Court to allow the appeal and set aside the judgment of the lower Court. Learned counsel for the 1st and 3rd respondents urged the Court to dismiss the appeal and affirm the judgment of the lower Court. Learned Counsel to the 2nd respondent adopted the brief of argument and urged that the appeal be dismissed.
On page 3 of the appellant’s brief of argument, 2 issues were distilled from the 2 grounds of appeal. They are as follows:
“Whether from the totality of the evidence adduced by the appellant has proved his case by preponderance of evidence to warrant the lower Court to enter judgment in his favour? (Distilled from grounds of appeal No. 1).
Whether the trial Court was wrong in evaluating the evidence not properly adduced by the Defendants/Respondents and against the weight of evidence properly presented by the plaintiff/appellant (Distilled from grounds of appeal No.2).”
The 1st and 3rd respondents’ brief of argument was filed on the 23rd of February, 2022, and on page 3 thereof, a sole issue was culled out of the grounds of appeal, thus:
“Whether the appellant from the evidence adduced before the trial Court lower Court, together with all the documentary evidence, particularly Exhibit “9” Annexure “A” proved his claim.”
The 2nd respondent filed brief of argument on the 21st day of February, 2022, nominated a sole issue for the determination of the appeal on page 3, thereof:
“Whether from the facts and circumstances of this case, the appellant has proved his case base on preponderance of evidence. (distilled from grounds 1 and 2).”
In considering the issues for determination in an appeal formulated in the briefs of argument of the parties, an appellate Court can, either adopt or reframe or even formulate new issues, in the determination of the appeal. This is the law as enunciated in the case of FRN V. OBEGOLU (2006) 18 NWLR (PT. 1010) P. 188 @ 225 where it was held that, after examining the issues for determination, it is the duty of an appellate Court to either adopt those in the briefs of argument or formulate new ones which he believes would determined the real complaint or grievances of the appellant. See also ADUKU VS ADEJOH (1994) 5 NWLR (PT. 346) P. 582 and IKEGWUOHA V. OHAWUCHI (1996) 3 NWLR (PT. 435) P. 146. For clarity, precision and comprehensibility, the 2 issues for determination contained in the appellant’s, 1st, 2nd and 3rd respondents; briefs of argument are hereunder amalgamated and compressed into a sole issue, which if resolved, would determine the appeal, fairly and justify. The issue is thus:
Whether, on the totality of the evidence adduced by the appellant, before the lower Court, he proved his claims on the preponderance of evidence, to warrant entering the judgment of the lower Court in his favour? (grounds 1 and 2)
After reviewing and evaluation of the totality of the evidence adduced by the appellant, 1st, 2nd and 3rd respondents, the learned judge of the lower Court in his concluding paragraphs of the judgment, held as follows, as recorded on pages 228 to 229 of the printed record of appeal:
“In the face of the direct and uncontroverted evidence that the land in dispute was not allocated to the plaintiff, as was given by Dw2 the person who signed all allocation letters during his tenure as Director of Lands, and his confirmation to the Court that he did not sign the allocation letter, annexure A1 to Exhibit 9, it is virtually impossible to ascribe any value to the hand written note claimed to have emanated from the Commissioner for Lands. If the said note was addressed to about the supplementary allocation and the instruction given to him being alluded to as Exhibit ‘2’, though admitted during trial by me, stands on no foundation to support it as a document of value. The fact that it was being claimed to be an official document emanating from the 2nd defendant, it did not come from that source and being a piece secondary evidence it needed to have been certified for it to carry the type of weight the plaintiff wishes it to have. I therefore find that this note is not worth the paper that it is written on; consequently, I do not think that it can stand or even if allowed cannot have any evidential value. If as I have found, that it is of no value then it follows that all other subsequent documents issued or presented by the plaintiff lack any place of standing. A letter of allocation said to have been signed by Dw2 as the director of lands, and who denied signing or issuing same cannot be said to be any value. The law is on nothing and expect it to stand. I am satisfied that the allocation said to have been made to plaintiff in 2011, in the face of the earlier allocation made to the 3rd defendant since 2008 and which allocation was not shown to have been withdrawn by the 2nd defendant by any document either written or otherwise to him cannot revoke the interest of the 3rd defendant and confer a better title on the plaintiff. I consequently find that the plaintiff did not establish that he had a better title than that presented by the 3rd defendant and has therefore not proved his case by a preponderance of evidence before me as to entitle him to the declaration he seek. I also find that the defendants have successfully debunked his claims and I am satisfied that they Court, the title paraded by the 3rd defendant proved to be better than even go to that extent for the plaintiff’s case to fail since he does not succeed on the weakness of the case of the defence.”
Was the learned judge of the lower Court right in arriving at the decision contained on pages 228 to 229 of the record, reproduced supra? Auwal Idris Esq., of learned counsel who settled the appellant’s brief of argument, made elaborate submissions on pages 3 to 8 of the brief of argument, citing and relying on principles of law enunciated in a litany of decisions of the superior Courts, to buttress his contention that, the learned judge of the lower Court, did not consider and or evaluate the evidence before him properly when he arrived at the decision on pages 228 to 229 of the record in dismissing the claims of the appellant. That if the learned judge had properly evaluated the totality of the evidence, he would have arrived at a different decision. Specifically, learned counsel referred to Exhibits 1 to 8, and in particular, Exhibit 4, and submitted that, if the learned Judge had evaluated same together with evidence of the witnesses, he relied on them, he would found same to be credible, cogent and reliable, which would have been the basis of entering judgment in favour of the appellant. This Court has been urged to intervene by evaluating the evidence and make a decision since the learned Judge failed to do as enunciated in the case of EHOLOR VS OSAYANDE (1992) 6 NWLR PT. 249 P. 524 and UBN PLC VS LAWAL (2015) 14 NWLR PT. 1474 P. 203.
S. A. MUSTAPHA ESQ. of learned counsel to the 1st and 3rd respondents, in his extensive submission on pages 3 to 10 of the brief of argument, did contend that, the learned Judge of the lower Court, painstakingly, evaluated the evidence of the witnesses, including all the documents tendered and admitted in evidence by the parties, in arriving at the decision on page 228 to 229 of the record of appeal. It is learned counsel’s further adumbration that the learned Judge of the lower Court, in addition to evaluating the evidence of the witnesses, he also evaluated the documents tendered and admitted in evidence as Exhibits 1 to 8 and in particular 9 annexure ‘A’, before arriving at the decision on pages 228 to 229 of the printed record of appeal.
On the letters of allocation of the disputed land to the appellant and the 3rd respondent, vide Exhibits ‘4’ and ‘10’ respectively, learned counsel pointed out that, the one issued in 2008 superceeds the other that was issued in 2011 by the 2nd respondent. That the one first in time overrides the latter, therefore the legality or authenticity of the 2 Exhibits depends on when they were issued to the parties. The principles of law espoused in the cases of DANTSOHO V MOHAMMED (2003) LPELR 926, (SC) P. 16 and in OMIYALE VS MACAULAY & ORS (2009) LPELR 2640 (SC) PAGE 35, reinforces the reliance of the learned Judge of the lower Court, when he arrived at the decision on pages 228 to 229 of the printed record of appeal, entering judgment against the appellant.
Mohammed Isa Usman Esq, of learned counsel to the 2nd respondent, in his brief of argument on pages 3 to 10 thereof, did submitted on page 9 thus:
“Now, flowing from the submissions above, one may be tempted to pose the following question; what is the legal effect where two persons claim the same plot of land granted by a common grantor? It is submitted that the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor because the grantor having successfully divested himself of the title in respect of the parcel of land in question by the first grant would have nothing left to convey to a subsequent grantee under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him see the case of DANTSOHO VS MOHAMMED (2003) LPELR 926 (SC) AT PAGE 16, PARA B-F, ratio 4. See also the case of OMIYALE VS MACAULAY & ORS (2009) LPELR 2640 (SC) at page 25, para A-C, ratio 3.
Concluding, learned counsel did urge this Court to resolve the sole issue in the appeal against the appellant.
The appellant filed a reply to the arguments canvassed in the 1st, 2nd and 3rd respondents’ brief of argument, and did contend that, learned counsel to the respondents did not properly address the issues raised in the appellant’s brief of argument, and urged the Court to discountenance same in the determination of the appeal.
The law is settled, an appellant has the duty to prove his case based on preponderance of evidence. See AFOLABI VS OLA (2016) LPELR 40186 (CA). A plaintiff is not allowed to rely on the weakness of the respondent’s case in establishing his case. See UMEADI & ORS VS CHIBUNZE & OTHERS(2020) 3 SCM page 195-196 para 1, A per Peter Odili, JSC where it was held “The learned jurist and author said it is, and again it is, trite and quite settled that in a claim for a declaration of title of land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not on the weakness of the case of the defendant. The plaintiff must therefore satisfy the Court that, upon pleadings and evidence adduced by him he is entitled to the declaration sought. See cases of Eya v. Olopade, Odunukwe Vs Ofomata,…”
One common ground that all parties in this appeal agreed is that they derived titled from common source. The appellant in his written depositions which he adopted could be found at pages 87-90 of the record. He deposed that the plot E-43 at GDP/4 was allocated to him through annexure A1 of Exhibit 9. These Exhibits were among the several documents the Appellant relied on proving his case on the title document as a means of proving his case as expounded in the case of GABA VS TSOIDA (2020) 5 NWLR page 20-21 para E–A per Kekere-Ekun, JSC where it was held,
“it is well settled law that a claim for declaration of title to land may be proved by one or more of the following methods;
i. By traditional evidence
ii. By production of title documents duly authenticated, unless they are 20 years old or more;
iii. Acts of possession in and over the land in dispute extending over a sufficient length of time, numerous and positive as to warrant the inference that the persons in possession are true owner;
iv. Act of long possession and enjoyment;
v. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land could in addition be the owner of the land in dispute. See IDUNDUN VS OKUMAGBA (SUPRA), NKADO VS OBIANO (1997) 5 SCNJ 33 at 47;
The appellant claimed title over the disputed land on annexure A1 of Exhibit 9 purported to have been issued on 1st April 2011. The 2nd respondent has denied issuing the said annexure to Exhibit 9 to the appellant. The written depositions of Dw2 (Ibrahim Baba Billiri) is at page 104 of the record. This witness deposed in paragraphs 4–7 thus:
“4. That I knew that land with R of O No. GM/14660 on plot E-43 on GDP/4 layout the plaintiff is not the beneficial owner of the plot in dispute.
5. That I was not the one who issued the allocation letter bearing the name of the plaintiff with R of O. No. GM/14600 on plot E-43 layout.
6. That the allocation letter dated 1st April 2011 bearing my name and signature did not emanate from me.
7. That I did not recommend the purported allocation letter paraded by the plaintiff for preparation of C of O in his favour.”
The appellant further placed reliance on Exhibit 2 being a purported memo, said to have emanated from the then Commissioner for Land and Survey authorizing the Dw2 (Ibrahim Baba Billiri) to issue a letter of allocation to one Mohammed Umar. The lower Court was right to have refused ascribing any probative value to Exhibit 2, because the said Exhibit, on the face of it, is a public document and was not addressed to the appellant, but to the Director of Lands (Dw2 Ibrahim Baba Billiri) in the office of the 2nd Respondent. The failure to give reasonable explanation on how he came about Exhibit 2 and the non-compliance with the provisions of the Evidence Act in regard to certification of the public document. The lower Court was right in refusing to give credence to the said Exhibit 2.
Exhibit ‘2’ tendered by the appellant and admitted in evidence during trial is the foundation of his claim of statutory allocation. Exhibit ‘2’ is a supposed memo from an unknown and undesignated person directing that the disputed land be allocated to the appellant. Exhibit “2” was authored and signed on 30th March, 2011. All other title documents relied upon and tendered by the appellant came after Exhibit “2”. See Exhibit “1”, “2”, “3”, “4”,”5” “6”, “7”,”8” and “9” which all came after Exhibit “2” going by the dates appearing on all of them.
All these Exhibits are tendered by the appellant at the lower Court. Exhibits “10”, “11” and “12” were tendered by the 1st and 3rd respondents. It is the 3rd respondent who was allocated the same plot of land vide Exhibit “10” on the 16th July, 2008. Exhibits “11” and “12” are merely confirmation of the original grant made vide Exhibit “10” since 2008. The appellant was alleged to have been granted same plot of land through Exhibit “2” in 2011. Exhibit ‘2” is not only later in time, but nothing on the documents indicate that a parcel of land was granted to the appellant. It is merely an administrative directive.
There are five (5) ways to prove title to land as enunciated in a plethora of pronouncements by the superior Courts among which are BABA-IYA VS SEKILE (2006) 3 NWLR (PT 965) P. 508 at 528 wherein it was stated that; title to land may be proved by any of the following:
i. By traditional evidence
ii. By production of title documents, duly authenticated.
iii. By acts of selling, leasing, renting out all or part of it or farming on it or portion of it.
iv. Acts long possession and enjoyment of land
v. Proof of possession of connected or adjacent land in circumcisions rendering it probable that the owner of such land would in addition be the owner of the land in dispute. See BABA-IYA VS SEKILE (2006) 3 NWLR (PT 965) P. 508 at 528; IDUNDUN VS OKUMAGBA (1976) 9-10 SC & 77 and NKADO VS OBIANO (1997) 5 NWLR (PT. 503) P. 31.
The appellant relied on Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 with annexure A1– A4, B1 to B2 as title documents as well as the evidence of Pw1 to prove his title to the parcel of land in dispute. Exhibit ‘6’ is a letter of grant and Exhibit 4 is a verification letter of the certificate of occupancy. Exhibit 8 is the layout of plots issued/granted in 2016 and Exhibit 7 issued on 5th September 2016. The 3rd respondent relied on Exhibits 10 to 11 and 12 as well as evidence of Dw1 and Dw2 to establish his title to the disputed land. Exhibits 4, 5, 6, and 10, 11 to 12 are letters of grant and certificate of occupancy. Being certificates of occupancy, they raise presumption that the person named therein is the holder of title thereof. See MANI VS SHANONO (2007) ALL FWLR (PT. 724) P. 305 at 318.
Dw2, the land officer in the Ministry of Lands in Gombe State, made statement on Oath, as Dw2. He deposed in paragraphs 1–8 of his statement on oath as follows as recorded in pages 74–75 of the printed record of appeal:
1. That I am the former Director of Lands in the Ministry of Land & Survey Gombe
2. That presently I am working at the State Ministry of Works and Infrastructure Gombe state
3. That by virtue of my position I am conversant with the fact of this case
4. That the plaintiff in this case is not the beneficial owner of the plot in dispute with R of O No. GM/14660 on plot E-43 on GDP/4 Layout.
5. That I did not issue any allocation letter bearing the plaintiff’s name with R of O No. GM/14660 on plot E-43 on GDP/4 Layout.
6. That the allocation letter dated 1st April, 2011 bearing my name and signature not emanated from me.
7. That I did not recommend the purported allocation letter paraded by the plaintiff for preparation of C. of O in plaintiff favour.
8. That all the papers presented or paraded by the plaintiff in respect to the plot in dispute were acquired without due process.
The witness gave evidence as recorded on page 212 of the record as follows:
“The 2nd Defendant called Ibrahim Baba Billiri as Dw2. He adopted his sworn depositions made on the 14/11/2017 which he identified and adopted as his evidence in chief. He stated that he was formally the Director of Lands at the office of the 2nd Defendant. He said that by virtue of that position which he held he was conversant with facts of this case and he knew that land with R of O No. GM/14660 on plot E-43 on GDP/4 layout and that the plaintiff is not the beneficial owner of the plot in dispute and he was not the person who issued the allocation letter bearing the name of the plaintiff with R of O No. GM/4660 on plot E-43 on GDP/4 layout. He stated that the said allocation letter dated 1/4/2011 bearing his name and signature did not emanate from him and that he did not recommend the purported allocation letter paraded by the plaintiff for preparation of C of O in his favour.”
When cross-examined as Dw2 by learned counsel to the appellant, during his oral testimony before the lower Court, he said, thus, as recorded on page 197 of the printed record or appeal:
“ The annexure allocated letter is dated 1/4/2022 and I was the Director of Land. The name of the allottee is Mohammed Umar. The annexure shown to me is not signed by me and the material used in issuing this letter is quite different from the material we used in the allocation to about 100 people signed, I signed.”
For a certificate of occupancy to be valid it must be issued after the grant of a right of occupancy under Section 5 (1) (a) or Section 6 (1) (a) and (b) or Section 34(1) of the Land Use Act. A certificate of occupancy must not be issued when there is in existence another one issued over same land. In MADU VS MADU (2008) 6 NWLR (Pt. 1083) P. 286 at 325, the Supreme Court held that for a certificate of occupancy, under the Land Use Act, to be valid, there must not be in existence, at the time the certificate was issued, a statutory or customary owner of the land in issue who was not divested of his legal interest to the land prior to the grant. However, this principle of law is only relevant in cases where a claimant has proved that he has a prior and un-extinguished title to the land so that the new right of occupancy cannot over-ride, extinguish or have priority over that existing right. In APOSTOLIC CHURCH VS OLOWOLENI (1990) 10 SCNJ P. 69 at 25, the Supreme Court also held that if the issuance of a certificate of occupancy was not in accordance with the Land Use Act, the certificate is defective and the holder has no basis for a valid claim title over the land. See also AZI VS REG. TRUSTEES OF EVAN. CHURCH (1990) 5 NWLR (Pt. 195) P. 111 at 121.
A certificate of occupancy issued under the Land Use Act is not conclusive evidence of any interest or valid title to the land in favour of the grantee. It is only a prima facie evidence of such right, interest or title without more, and may, in appropriate cases, be challenged and rendered invalid, null and void. Consequently where it is proved, that another person, other than the grantee of a certificate of occupancy had a better to the land, the Court may set it aside on the ground that it is invalid, defective or spurious. See also the following decided cases by the Supreme Court and the Court of Appeal; DZUNGWE VS GBISHE; OGUNLEYE VS ONI (1990) 2 NWLR (Pt. 135) P. 745; SAUDE VS ABDULLAHI; OLOHUNDE VS ADEYOJU AND LABABEDI VS LAGOS METAL IND. LTD (1990) 2 NWLR (Pt. 135) P. 745.
A certificate of occupancy or any other document of title is prima facie evidence of title, but will give way to a better title. A person in whose name a certificate of occupancy has been issued can only validly hold on to it if he can show that he legitimately acquired the land. He should be able to show that the certificate was issued in his favour after he had properly acquired the land. Thus, where it is proved that another right of occupancy resides in another person, and such right has not been extinguished, the certificate of occupancy is liable to be declared invalid. See also the following cases; ILONA VS IDAKWO (2003) 11 NWLR (Pt. 830) P. 53; ESO VS ADEYEMI; AZI VS REG. TRUSTEES OF THE EVAN. CHURCH OF WEST AFRICA (1991) NWLR (Pt. 155) P. 113; AND REG. TRUSTEES, APOSTOLIC CHURCH VS OLOWOLENI (1995) 6 NWLR (Pt. 158) P. 514.
The law has been settled for long that where two or more persons claim title to land or a right of occupancy over the same land, the first in time takes priority as it is stronger in law. The latter grantee is deemed not to have been granted any title or right of occupancy. A grantor of title or right of occupancy cannot give title or right of occupancy to two persons, one must be valid, the other invalid. The law is trite one cannot grant title over a parcel of land and still be in legal position to grant such title to another. He would have no such title to grant to the latter grantee under the doctrine of “nemo dat quad non habet”. SeeIBB Ind. Ltd. v. Mutunci Co. (Nig.) Ltd. (2012) 6 NWLR (Pt. 1297) P. 487 at 524; Omiyale v. Macaulay (2009) 7 NWLR (Pt. 1141) P. 597; Ibrahim v. Osunde (2009) 6 NWLR (Pt. 1137) P. 382; Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) P. 1 and Dantsoho v. Mohammed (2003) 6 NWLR (Pt. 817) P. 457.
The certificate of occupancy the appellant relied on to prove his title to the disputed land was issued on 9th of September, 2016, which was verified by Exhibit 4. Whereas, the certificate of occupancy the respondent relied on to prove his title to the same land was issued on the 16-07-2008 verified by Exhibit 10 of 23-1- 2017.
Where two or more persons claim title to land by virtue a certificate of occupancy, the first in time takes precedence over and above the former. Furthermore, the law is trite, any title or right of occupancy acquired over a parcel of land when there is in existence another certificate of occupancy, which has not been revoked in accordance with the law, the latter title cannot be valid in law. See Adole v. Gwar (2008) 11 NWLR (Pt. 1099) P. 562; Salami v. Oke (1987) 4 NWLR (Pt. 63 P. 1; Ajilo v. SBN Ltd (1989) 1 NWLR (Pt. 97) P. 555 and Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) P. 745.
The evidence adduced before the lower Court clearly showed that the appellant’s title to the disputed land has been predicated on Exhibits 4, 5, and 6, which were issued on 19-01-2010 and 5/9/2016, whereas that of the 3rd respondent was issued on 15-08-2008, verified on 23-1-2017. The certificate of occupancy issued in 2008 supersedes and takes priority over the one issued in 2011. Where two persons trace their root of title to the same source, the earlier in time prevails. See Ejuetam v. Olaiya (2001) RSCNI P. 140 at 168. The certificate of occupancy Exhibits 4, 5, and 6 and the grant of the right of occupancy Exhibits 7 and 8 on which the appellant relied on to prove his title to the disputed parcel of land, having been granted and/or issued at a time the 3rd respondent had acquired title over same land by virtue of Exhibits 10, 11 to 12 which were in existence, and not having been revoked in accordance with the law, are void ab initio, null and void. See Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) P. 53; Eso v. Adeyemi (1994) 4 NWLR (Pt. 340) P. 558; Azi v. RTECWA (1991) NWLR (Pt. 155) P. 113 and RTAC v. Olowoleni (1995) 6 NWLR (Pt. 158) P. 514.
In the end result, I resolve the sole issue for determination in the appeal against the appellant. Consequently, the appeal fails, same in dismissed by me. The judgment of the lower Court, delivered on the 5th day of February, 2019, is hereby affirmed. The 1st, 2nd and 3rd respondents, are each entitled to the sum of N50,000.00 costs. Same is awarded to each of them.
JUMMAI HANNATU SANKEY, J.C.A.: I have read in draft, the lead judgment of my learned brother, Ibrahim Shata Bdliya, J.C.A.
The facts of the case leading to this appeal have been well captured in the lead judgment, therefore obviating the need for me to re-hash them here. Suffice it to say that, whereas the Appellant, as Plaintiff before the lower Court, laid claim to the land in dispute vide an allocation letter given to him in 2011, (Annexure A1 to Exhibit 9); the 1st Respondent in his defence disputed this and contended that the same land was allocated to him vide an allocation letter issued by the 3rd Respondent dated 16th July, 2008.
Interestingly, the Director of Lands of the 2nd Respondent (Ministry of Land and Survey) during the period in question, DW2, testified. He stated categorically in his witness statement on oath and maintained under cross-examination that, although it was alleged that his name and signature were on the letter of allocation presented by the Appellant, (Annexure A1 to Exhibit 9), he neither issued nor sign the document. Therefore, he essentially disowned the Appellant’s letter of allocation, denying that it was issued under his hand from the 2nd Respondent. DW2 however confirmed that he indeed issued and signed the allocation letter presented by the 1st Respondent in respect of the disputed land, which was issued earlier in time to that produced at the lower Court by the Appellant.
The fundamental principle in all land transactions is captured in the Latin maxim, “caveat emptor”, which means, let the buyer beware. A purchaser of land or a person who acquires land by other means, is required in law to first of all conduct a search in the relevant registries before committing himself and his money in any property transaction. Once a purchaser or, as in this case an applicant for a piece of land, carries out all the necessary searches/checks required of him and there is nothing adverse discovered, having exercised all due care and diligence, interest in the property will pass to him, even if it is subsequently claimed that there was a defect in title and irregularities, not on the part of the purchaser. He then becomes a bona fide owner/purchaser for value without notice – Ageh V Tortya (2003) 6 NWLR (Pt. 816) 385, 396; Owo V Kasumu (1932) 11 NLR 116.
In the case of Animashaun V Olojo (1990) 6 NWLR (Pt. 154) 111, 122-123, Obaseki, JSC expounded the law as follows:
“What is the meaning of ‘bona fide purchaser of the legal estate for value without notice’?
Bona fide is defined as ‘in good faith, honesty, without fraud, collusion or participation in wrong doing’. Purchasing for value – ‘Purchaser’ in its technical sense does not necessarily imply purchaser for value. ‘For value’ are included to show that value must be given to earn the immunity. ‘Value’ means any consideration in money, money’s worth (e.g. other lands, stocks and shares or services or marriage…). ‘Of a legal estate’ – As Courts of equity break in upon the Common Law, when necessity and conscience require it, still they allow superior force and strength to a legal title to estate… ‘Without notice’ He must have neither actual notice nor constructive notice nor imputed notice.
A person has Actual Notice of all facts of which he had actual knowledge however that knowledge was acquired…
Constructive Notice – The Court of Chancery insisted that the purchaser should inquire about equitable interest with no less diligence about legal which they could ignore only at their own peril. The motto of English Conveyance is caveat emptor; the risk of encumbrances is on the purchaser who must satisfy himself by a full investigation of title before completing his purchase. A purchaser would be able to plead absence of notice only if he had made all usual and proper inquiries and had still failed to detect the equitable interest.
Imputed Notice –There is a third category of notice known as imputed notice. If a purchaser employs an agent, such as a solicitor, any actual or constructive notice… which the agent receives is imputed to the purchaser…” (Emphasis supplied)
His lordship explained further as follows:
“The key element in a plea of bona fide purchaser for value without notice is the concept of caveat emptor which postulates that a purchaser should beware and ought not to be ignorant that he is purchasing the rights of another. It is the primary responsibility of a purchaser of land to mount vigorous search in order to satisfy himself that the land is free from encumbrances and to ensure that the rights he is purchasing belong to the vendor. It is for a party to a contract to take all necessary precautions to avoid entering into a bad bargain. The principle is as old as the law itself…” (Emphasis supplied)
Again, in Onyido V Ajemba (1991) 14 NWLR (Pt. 184) 203, 228, D-H, Uwaifo, JCA (as he then was), explained the principle further thus:
“It follows, in my view, that a purchaser must be careful to know the full details about the land he is buying so as to acquire a good title by ensuring that the vendor has the necessary title to what he offers to sell. The rule is caveat emptor – let the buyer beware. It is a very old and useful rule. To quote Richards C.B. in Purvis V Royer (1821) 9 Price 488 at 518:
“It is a general rule in equity founded on principles of honesty and the dictates of good sense, that if a person, generally speaking, offers anything for sale, the vendee, or he who becomes the purchaser, is entitled to see that the vendor has it with the qualifications, and in the way in which he, the vendee, understood that he bought it; that is, so as to afford him an assurance of having bought what he wanted, and meant to buy, or, at least, he may reject the contract.” (Emphasis supplied)
Now the question to be answered in the instant appeal is: whether on the facts of the instant case, the appellant acquired a good title to the land and can be said to have acquired the land bona fide without notice? From the facts on Record, the Appellant contends that he was issued an allocation letter in respect of the disputed land by the 2nd Respondent based on which he subsequently acquired his documents of title. The question that arises, is: given the facts and circumstances of the case vis-a-vis the law on the subject, can the Appellant be said to have acquired good title bona fide and without notice?
It is clear that the law, as aforesaid, in property transactions is caveat emptor. The risk of encumbrances is on the person who acquires the property who must satisfy himself by a full investigation of the title. Thus, a person would only be able to successfully plead the absence of notice if he has made all usual and proper inquiries and has still found nothing to indicate the existence of any equitable interest.
In the instant case, DW2, (the erstwhile Director of Lands in the 2nd Respondent, Ministry of Land & Survey Gombe State), who was alleged to be the author of the document, outrightly disowned the letter of allocation produced in Court by the Appellant. Thereby rendering it suspect and even of a dubious source. This is in addition to the fact that the land, having been allocated to the 3rd Respondent three years earlier, to wit: in 2008, there was an encumbrance on the land which was in the form of a prior title. Thus, the Appellant, having not conducted any investigation or enquiry into the property allegedly allocated to him, he is taken by law to have constructive notice of the prior title of the 1st Respondent. In the light of this evidence, the Appellant does not qualify as an innocent or bona fide procurer of the land without notice.
Furthermore, the onus was on the Appellant to first prove his claim. After the Appellant had adduced evidence through his witnesses and several documents, the Respondents also adduced evidence through witnesses and several documents. DW2, in particular, testified that he issued the allocation letter over the land to the 1st Respondent in 2008 based on which the Certificate of Occupancy was subsequently issued to him in 2017. As aforesaid, DW2 denied being the author of the allocation letter issued in 2011 and touted by the appellant as the basis of his title. DW2, as the Director of Lands, having been intricately involved in the process on behalf of the 2nd Respondent, his evidence was found credible and so, was accepted and acted upon by the learned trial Judge.
Both the appellant and the 1st respondent contended that the 2nd respondent was the source of their titles. However, DW2 only confirmed the allocation letter and the documents of title issued to the 1st respondent. He also testified in line with the 1st respondent’s defence that the title of the 1st respondent was first in time in 2008, while the alleged allocation of the same land to the appellant was three years later in 2011.
The logical deduction from all these pieces of evidence tied together is that the appellant did not carry out his due diligence when he was allegedly allocated the land in 2011. From the evidence of DW1 and DW2, if the appellant had bothered to embark upon a search at the Land Registry on the property in dispute, he would undoubtedly have discovered that there was an encumbrance on it, the land having been previously allocated to the 1st respondent. Thus, constructive notice is imputed to the appellant.
From the oral and documentary evidence, the evidence clearly preponderated in favour of the Respondents in view of the crucial evidence of DW2, the erstwhile Director of Lands with the 2nd respondent, which punctured the evidence of the appellant who had traced his title to the 2nd respondent. Consequently, in law, I agree with the learned trial Judge that even if the appellant’s letter of allocation issued in 2011 was genuine at the time it was issued, the principle of nemo dat quod non habet applied since, at the time of the purported issuance, the 2nd respondent had no title to pass in respect of the land, same having already been vested in the 1st respondent. Based on this, I am of the considered view that the decision of the learned trial Judge cannot be faulted.
Consequently, following on the heels of these findings, in conjunction with the more comprehensive findings in the lead judgment, I find the appeal lacking in merit. It fails and is dismissed. I abide by the consequential orders.
EBIOWEI TOBI, J.C.A.: I have read in draft, the lead judgment just delivered by my learned brother, Ibrahim S. Bdliya, JCA wherein the appellant, plaintiff in the lower Court appeal was dismissed. I agree with the reasoning and conclusion reached to the effect that the appellant could not prove his case at the lower Court.
The appellant and the 3rd respondent in this appeal were all claiming title to the subject property to wit: Right of Occupancy No. GM/14660 on plot E-43 on GDP/4 Layout situate at the City Center behind Federal Medical Center, Gombe. Both parties were claiming title to the land in dispute relying on the allocation made to them by the 1st and 2nd respondents. Their title is therefore from the same source. The law in such a situation is settled, which is that, when the equities are equal the first in time will prevail and consequently be awarded title to the land. See Achilihu vs Anyatonwu (2013) 12 NWLR (pt 1368) 256.
From the records, the Appellant is relying on Exhibits 1-9 to prove his title while the 3rd Respondent relied on Exhibits 10-12. What is clear from the exhibits is that the 3rd Respondent was the first to be allocated the land in dispute by the 1st and 2nd respondents.
The 3rd respondent was allocated the land on 16/8/2008 while the appellant, if it was allocated to him at all, was done on 19/1/2017. The calendar year 2008 comes before 2017. This is a period of 9 years difference. On the principle of first in time, the lower Court was right in dismissing the case of the appellant in the lower Court. The appellant did not show that it had a superior title to that of the 1st respondent. On that ground alone the lower Court was right in its decision.
The other position of the law that favours the decision of the lower Court is the principle of law that, where two parties claim title to land from a common source the person with a better title will be awarded title to the land. See Ogbu v. Wokoma (2005) LPELR-2293(SC). In the contention for ownership of the property from the same source in this instance, the appellant and the 1st respondent, the title of the property will be awarded to the person with a better title or the person who was first in time in the allocation. See Francis Adesina Ayanwale vs Olumuyiwa Olumide Odusami (2011) 18 NWLR (pt 1278) 328. In this respect, I wish to also cite the case of Emmanuel Ilona vs Sunday Idakwo & Anor (2003) LPELR-1496 (SC) where the apex Court held thus:
“The law is well settled that where, as in the present case, there are competing interests by two or more parties claiming title to the same piece or parcel of land from a common grantor, the position, both at law and in equity, is that such competing will prima facie rank in order of their creation based on the maxim qui prior est tempore potior est jure which simply means that he who is earlier in time is stronger in law. See Ahmadu Bello University v. Fadinamu Trading Co. Ltd. & Anor (1975) 1 NMLR 42, Abiodun Adelaja v. Olatunde Fanoiki & Anor (1990) 2 NWLR (Pt. 131) 137 at 151, Barclays Bank Ltd. v. Bird (1954) Ch. 274 and 280.”
I want to comment briefly on Exhibit 2 which is a handwritten directive to the DW2 by the commissioner for land to allocate the land in dispute to the appellant. This is not sufficient evidence to show that the land in dispute belongs to the appellant. An instruction remains an instruction and cannot graduate to manifestation until the instruction was carried out. Exhibit 2 therefore is not of any use in supporting the case of the appellant. All the documents that the appellant is referring to as root of his title cannot support his case even if it was accepted as the root of title because the law does not permit any authority to allocate the same land that has earlier been allocated to another person. Without a proper revocation of a certificate of occupancy, no authority has power to allocate the same land to another. See Naadade Petroleum Ltd v. FCT Minister & Ors (2022) LPELR-57127 (CA).
In the circumstance, since there is evidence of an earlier, valid and subsisting allocation to the 3rd respondent which was not revoked, the 1st and 2nd respondents have no powers to allocate same land to the appellant. This is more so that the DW2 denied making Exhibit 2. On the whole, I cannot fault the finding of the lower Court since in my opinion, it is not perverse but rather is in line with the evidence before the Court. In this circumstance, I cannot interfere with the finding of the lower Court at pages 228-229 of the record.
For the above reason and for the fuller reason in the lead judgment of my learned brother, Ibrahim S. Bdliya, JCA, I also hold that this appeal lacks merit and it is dismissed. The judgment of Paul Idi Appolls J. is hereby affirmed.
Appearances:
UMAR MUHAMMED, ESQ., with him, HASSAN UMAR, ESQ., I. S. SAID, ESQ., B. O SHUAIB, ESQ. and M.A. ALHASSAN, ESQ. For Appellant(s)
S.A. MUSTAPHA, ESQ. – for 1st and 3rd Respondents
MUHAMMED ISAH USMAN, ESQ. – for 2nd Respondent. For Respondent(s)
