IDI v. RABIU & ANOR (2020)

IDI v. RABIU & ANOR

(2020)LCN/14290(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Wednesday, June 03, 2020

CA/J/410/2018

Before Our Lordships:

Adzira Gana Mshelia Justice of the Court of Appeal

Tani Yusuf Hassan Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

MRS ROSE IDI APPELANT(S)

And

1. ALHAJI BABA RA’BIU (ARABAB NIG. LTD) 2. MINISTRY OF LANDS AND HOUSING BAUCHI STATE RESPONDENT(S)

RATIO

WHETHER OR NOT FACTS ADMITTED NEED TO BE PROVED

Facts that are admitted are no longer in issue and so need not be proved: see Federal University of Technology Minna v. Olutayo (2018) 7 NWLR (PT 1617) 176 @ p. 196, 189 (SC). PER UGO, J.C.A.

WHETHER OR NOT TWO RIGHTS OF OCCUPANCY CAN RUN SIMULTANEOUSLY OVER THE SAME PIECE OF LAND

Of course, the law is well settled that two Rights of Occupancy cannot run simultaneously over the same piece of land. As long as an earlier Right of Occupancy properly issued has not been revoked, no other Right or Certificate of Occupancy can run over that same piece of land. This much was reconfirmed by the apex Court even recently in Orianzi v. Attorney-General Rivers State (2017) LPELR- 41737 (S.C.) when it held (Galinje, J.S.C.) as follows at p. 27:
“The law is settled that for as long as the previous or earlier title or Right of Occupancy in or over a piece or parcel of land subsists, no other rival or competing title or Right of Occupancy can simultaneously exist in or over the same piece of land. As Belgore, JSC (as he then was) stated in KARI v. GANARAM (1997) 2 NWLR (Pt. 488) 380 at 400, the subsequent grant of that other ‘Right of Occupancy’ over the same piece of land will therefore be merely illusory and invalid. ‘The appellant’s right of occupancy subsists up till now as it has not been revoked and the wrongful grant to the 1st respondent has no effect whatsoever on its authenticity. Two Rights of Occupancy cannot subsist in respect of the same property or else there will be anarchy.” PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the 1st November 2017, judgment of the High Court of Bauchi State dismissing the claims of the appellant against respondents for declaration that she cannot be dispossessed of her right of possession over Plot of Land with Certificate of Occupancy No BA/2355 located at LP/BA/31; a declaration that she having taken possession of same remains its owner; that 1st respondent is a trespasser; that 2nd respondent lack competence to confer any right over it on the 1st defendant; a perpetual injunction restraining all the defendants and their servants, etc, from entering or dealing in any way with it, and general damages of N1m for trespass.

Her case was that she bought the said property in 2004 at the Sharia Court of Bauchi State from the children of the original holder of the Certificate of Occupancy No BA/2355, Alhaji Abubakar Buba, upon his demise, when his properties were to be shared by the Sharia Court, Bauchi among them in accordance with Islamic injunction. The consent of 2nd respondent was obtained by the Court she averred and proved it with Exhibit B issued by 2nd

respondent, before she bought it. Alhaji Abubakar Buba, she said, and it was admitted by 2nd respondent, was issued the said Certificate of Occupancy over the land in 1980 by the Bauchi State Governor. She claimed that consequent upon the purchase, she erected a three-course perimeter foundation on the land before she stopped work and travelled out of the country on study leave. When she returned to the country over nine years after and went to inspect the land, she observed that someone, who eventually turned out to be 1st respondent, had erected further blocks on her fence. She said she was never dispossessed of her right to the land so first respondent was a trespasser.

First defendant denied trespass and averred in his defence that it is Bauchi State Government that allocates and revokes Right of Occupancy in Bauchi State. He claimed his company Arabab Nig. Limited bought the disputed plot of land, but bearing a different Certificate of Occupancy No BA/31569, from its previous holder Abdulrazaq Ahmad Kariya in 2012; and the said Mr. Kariya, who had been granted Certificate of Occupancy, Exhibit E over it by 2nd respondent in 2006, issued it a Deed of

Assignment, Exhibit G, with the consent of the Governor of Bauchi State duly obtained as shown in Exhibit F tendered at the trial. He averred that his company paid to 2nd respondent all the necessary fees for perfection of its title upon the transfer so it was legitimately in possession of the disputed land.

On its part, second respondent while admitting that Right of Occupancy No BA/2355 over the disputed land was actually allocated by the Bauchi State Governor to Abubakar Baba and consent was also granted by it to the Sharia Court Bauchi to assign what it called ‘the property of Late Abubakar Baba’ to appellant, averred that the said transfer was subject to conditions namely submission of satisfactory deed of assignment, payment of stamp duties and registration fees within four months, all of which she failed to fulfill so she did not even perfect her title and no assignment or registration of same was done in her favour; that it was over ten years after that that she approached it for perfection of her title.

Long before then, in 2006, it went on, Government had revoked Late Buba’s Certificate of Occupancy No BA/2355 for

reasons of his failure to build on the land since 1979 and non-payment of ground rent from 1979 to 2006; that the same plot of land was then allocated to first respondent’s predecessor in title Abdulrazaq Kariya in the same 2006 with Certificate of Occupancy No. BA/31569 and that Abdulrazaq Kariya later assigned his interest to Arabab Nig. Ltd and same was registered by its Land Registry. It therefore asserted that first respondent’s entry into the disputed land was not trespass.

Appellant testified as P.W.2 in the trial admitted, called other witnesses and closed her case. First respondent also testified and called witnesses while second respondent called a single witness.

In its judgment, the trial High Court of Bauchi State relying onAuta v. Ibe (2000) 13 NWLR (PT 837) 247 (SC) reasoned that, for appellant to successfully rely on documents of title to prove her title, which was her chosen means of proof, the Court must inquire whether her documents were genuine and valid, whether they have been duly executed, stamped and registered, whether her grantor had authority and capacity to make the grant. In this case, it then went on to

hold, given the non-perfection of her title by appellant, the land still belonged to Abubakar Baba and since his title was revoked by 2nd respondent for failure to erect building on the land and non-payment of ground rent for eight years, the land was properly assigned to first respondent’s predecessor in title, Abdulrazaq Ahmad Kariya, by second respondent so 1st respondent cannot be said to be a trespasser on the said land so appellant had not proved her case, and on that basis dismissed her case.

Vexed by that judgment, appellant filed this appeal and formulated a sole issue for determination thus: Whether having regards to the pleadings and evidence of the parties on record, the learned trial judge was right to have dismissed her case.

While recognizing that she as claimant for declaration of title to land could only succeed on the strength of her case and not on the weakness of the defence and it is her duty to prove and establish her title, she argued, citing Ohiaeri v. Yusuf (2009) 37 MSCQR 634 @ 651 and Etajata v. Ologbo (2007) 16 NWLR (PT 1061) 554 @ 562, that having paid the purchase price of the land, obtained consent of the

Governor and entered into possession of the disputed land, she had acquired an equitable title which is as good as the legal title even though her title was not perfected by registration, stamping and so on, so her interest in the land could only be divested in a manner provided by law. That procedure known to law was not complied with in this case, she argued, as she was not served with any revocation notice; that the purported revocation, Exhibit H, was addressed by second respondent to Abubakar Baba by 2nd respondent even when it was aware that Bauchi State Government had granted approval for transfer of the land to her.

She said, too, that even though the Consent from Bauchi State Government to her for the assignment of the land stated that she was expected to perfect her title within four months, the penalty for delayed payment, by the wordings of that Letter, Exhibit C, was only to attract penalty, that there was no time stated in it for payment of the said penalty so second respondent was under a duty to accept her late payment and simply impose the penalty for her to pay. The lower Court, she thus submitted, was wrong when it held that her failure

to pay the said penalty meant that the land still belonged to Abubakar Buba. Her title to the land, she thus argued, was valid and never revoked, despite her non-payment of duties and registration fees, even more so when the said Revocation Notice, Exhibit H, was addressed in 2006 to Abubakar Buba who had died two years earlier and his estate already shared.

Assuming but without conceding that the interest of Abubakar Buba was yet to be even properly transferred to her, she further argued, the grant of Certificate of Occupancy to Abdulrazaq Kariya cannot extinguish the existing interest of Abubakar Buba in the absence of proper revocation. She argued that a Certificate of occupancy cannot be granted over a piece of land when there is already in existence in favour of another a Certificate of Occupancy over the same land – for which she cited the cases of Omiyale v. Macauley (2009) 7 NWLR (PT 1141) 597, Adole v. Gwar (2008) 11 NWLR (PT 1099) 562, Ndoma-Egba v. Chukwuogor (2004) 6 NWLR (PT 869) 382 @ 410-411. She then set out the provisions of Section 44 of the Land Use Act 1978 regarding how Revocation Notice should be served and submitted there is

nothing on record to suggest that any of those ways was complied with by second respondent in the Notice of Revocation (Exhibit H) that was said to have been served on Abubakar Buba. Without following the procedure spelt out by Section 44 of the Land Use Act in serving Abubakar Buba and revoking his Certificate of Occupancy, she argued, Bauchi State Government had no title to pass to Abdulrazaq Kariya and for him to pass to second respondent and his company Arabab Nig. Ltd, going even by the Latin maxim of nemo dat quod non habet and the decisions in Kalio v. Daniel Kalio (2005) 4 NWLR (PT 915) 305, Ibrahim v. Osunde (2009) 6 NWLR (PT 1137) 382 and Ugwunze v. Adeleke (2008) 2 NWLR (PT 1070) 148.

By the same reasoning, she further submitted, the documents of title brandished by first respondent are also of no avail as they did not have the effect claimed by him – for which she cited Romaine v. Romaine (1992) 4 NWLR (PT 238) 650 and Kyari v. Alkali (2001) 11 NWLR (PT 724) 412 among others.

Appellant finally asked us to evaluate the evidence, allow the appeal and set aside the judgment of the lower Court and hold her claims proved and grant them.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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First respondent, after adopting the sole issue of appellant and also agreeing with her argument on what a claimant relying on documents of title must prove to succeed in a claim for title to land, submitted that the disputed land was passed to her on the documents before the Court so she cannot even challenge what happened to Late Abubakar Baba’s interest on the land, even more so as according to his counsel there was nothing before the Court to show that Abubakar Baba was ever issued a Certificate of Occupancy over the land. Assuming even that he admitted any averment of appellant, his counsel argued, it is appellant’s duty as the person claiming declaration to prove his entitlement to it on the strength of her own case and not rely on the weakness of his case for judgment.

First respondent also argued that the application of the then Sharia Court No 1 Bauchi for approval of consent to assign the disputed land to appellant was invalid for the reasons that the Sharia Court does not have jurisdiction over land in urban area, coupled with the fact that it is the duty of the owner of land to obtain consent to assign and not the Sharia

Court.

It was also argued that the said consent was obtained by respondent on misrepresentation of facts as the Governor cannot grant consent to a dead man that Abubakar Buba was at that point; the only persons that could apply for consent in the circumstances, it was further argued, were his successors in title and not the Sharia Court, Bauchi. In the final analysis, we were urged by first respondent to dismiss the appeal.

The arguments of 2nd respondent in the main ran along the same lines with those of first respondent. It also argued that appellant failed to provide any document to show that the land in dispute belongs to her. It submitted that Exhibits A, B, C, D1, D2 and D3 tendered by her were neither genuine nor valid and so incapable of transferring title to her. It argued, too, that even if the grant to Abubakar Buba was valid and subsisting, the photocopy of Certificate of Occupancy of Abubakar Buba that was tendered by appellant was rejected. It joined first respondent in arguing that the subsequent assignment of the property by the Sharia Court was wrong and improper, that title ought to first devolve on the heirs of Abubakar Buba before

appellant can proceed to perfect her title and not through the Sharia Court. It argued that appellant did not perfect her deed of assignment nor pay stamp duty to enable her lay claim to the disputed property.

It also argued that Certificate of occupancy No BA/2355 of Abubakar Baba was properly revoked by it on 16/07/2006 for his failure to erect a structure on the land and non-payment of ground rent as what he says was as ‘contained in the said Certificate’. Such revocation, it argued, could be done on the basis of the provisions of the Certificate or any special contract made. It labeled Exhibits E, F1, F2, G, H and I of first respondent genuine and valid in transferring title to first respondent. Those documents and all the evidence before the lower Court, its counsel submitted, were carefully evaluated by the lower Court before it came to what its ‘correct’ decision that appellant did not prove her case so we should not interfere with that decision.

Appellant responded by way of reply on points of law to only the arguments of first respondent. She submitted that, contrary to first respondent’s contention, she

had standing and competence to challenge the purported revocation of Abubakar Buba’s title by 2nd respondent, even more so as she had already acquired title to the said land before the said revocation. As for first respondent’s argument that there was no evidence of valid grant of Right of Occupancy to Abubakar Buba by Bauchi State Government for her to found her challenge, she argued that there was no dispute regarding the source of title of Abubakar Buba, which is Bauchi State Government, that even Exhibit 1 (the application for Right of Occupancy held by Abdurazaq Kariya) made specific reference to the said Plot No BA/2355.

On the argument of first respondent that the Sharia Court Bauchi lacked jurisdiction over land in urban area that the disputed land is situated, she argued that the Sharia Court did not decide title to the land but simply distributed the estate of Late Abubakar Buba including the disputed land according to Islamic law that applied to Abubakar Buba and she simply bought it from his heirs.

Resolution of issue(s)
The main issue in this appeal is whether the lower Court was correct in its decision that on the

balance of probability appellant did not prove her case of ownership of the disputed property which is covered by Certificates of Occupancy No BA/2355 of Late Abubakar Baba and No BA/31569 of Abdulrazaq Kariya, which he purportedly passed to first respondent and his company. But before answering that question, let me quickly dispose of the two respondents’ attack of the consent granted by the Governor of Bauchi State to the Sharia Court Bauchi, in the course of its exercise of its undisputed jurisdiction to distribute Abubakar Buba’s property to his heirs in accordance with Islamic Law. That consent was incidentally done through 2nd respondent who now now turns around to join first respondent in attacking it.

I shall say, first, that contrary to the argument of first respondent, the Sharia Court Bauchi did not decide or sit on title over the disputed plot of land but only distributed it in line with Islamic law applicable to Abubakar Buba, so Section 39 of the Land Use Act 1978 relied on by him is inapplicable.

And coming down to the attack of the competence of the application for consent and the assignment itself that was made by the

Sharia Court to second respondent, I note that no such issue of improper consent was raised by respondents in their pleadings. Without making that an issue in their statements of defence, it is not even open to them to question it at the trial as they have done: see Ibrahim v.Obaje (2019) 3 NWLR (PT 1660) 389 @ 410 para E-F. (SC). See also Adeosun v. Governor of Ekiti State (2012) ALL FWLR (PT 619) 1044 @ 1063 (SC) where it was stated that while it may be the law that a party may invite the Court at any stage of the proceeding to determine the validity of a legal document that will be used in the course of the proceedings, that invitation will only be proper if the legal validity of the document is put in the pleadings of the parties before the Court, if not it will be of no moment.

In any event, the law clearly has since moved beyond the days of bothering itself with such technicalities of who applied for or can apply for consent to assign or mortgage land or whether it was even granted especially in non-contentious transfer of land as in this case where appellant averred without contest that she even paid ₦250,000.00 consideration to the heirs of

Abubakar Buba. In those circumstances, where the parties to the transaction themselves are not in dispute, the Court will not allow issues of consent to befuddle it. See again Ibrahim v. Obaje (supra) at 412 – 413.

With that out of the way, I now proceed to the main issue of whether appellant proved her case on the balance of probability. Here it must be noted that second respondent admitted some vital facts in its statement of defence. These are:
1. That Bauchi State Government did actually issue Abubakar Baba Certificate of Occupancy No BA/2355 over the disputed land on 27th May 1980. (See paragraph 5 of its statement of defence).
2. That Sharia Court No 1 Bauchi did apply for consent to assign the property of Late Abubakar to appellant (See paragraph 6 of its statement of defence).
3. That consequent upon receipt of the said Consent letter, it (2nd respondent) granted approval to assign via a letter dated 16th April 2004. It even specifically pleaded it, Exhibit H. (See paragraph 7 of its statement of defence).

Facts that are admitted are no longer in issue and so need not be proved: see Federal University of Technology Minna v. Olutayo

(2018) 7 NWLR (PT 1617) 176 @ p. 196, 189 (SC). That is the position with the issue of whether a Certificate of Occupancy No BA/2355 was issued to Abubakar Buba by 2nd respondent over the disputed land. That fact having been admitted by 2nd respondent, the rejection of that Certificate in evidence by the lower Court does not in any way detract from the fact it was actually issued and Abubakar Buba held it over the disputed land as he claims. At any rate, documents need be tendered only when their terms are in dispute and need to be construed; they need not be tendered where there is no dispute as to their existence, contents and terms: see Union Bank of Nigeria v. Ajabule (2012) ALL FWLR (PT 611) 1413 @ p. 1426-1427(SC), Unity Bank Plc v. Automotive C.N. Ltd (2012) ALL FWLR (PT 610) 1265 @ p. 1261. In other words, the argument of Mr. Nwoye for first respondent about the effect of the rejection of the said Certificate of Occupancy in evidence (which rejection was incidentally simply on technical grounds of its imperfect certification by 2nd respondent) and that its rejection in evidence means non-proof of its existence is of no moment. At any rate,

the fact that Abdulrazaq Kariya’s Certificate of Occupany No BA/31569 was over the same plot of land covered by Certificate of Occupancy No BA/2355 of Abubakar Buba is also evident on the letter (Exhibit I) of second respondent to Abdulrazaq Kariya offering him Plot No BA/2355 as an alternative to the plot he was earlier offered.

And going by that admitted issuance of Certificate of Occupancy No BA/2355 over the disputed land to Abubakar Baba by 2nd respondent since May 1980, it follows that the interest of the said Abubakar Baba, which 2nd respondent claims it revoked before the issuance of same to 1st respondent’s company, long precedes Certificate of Occupancy No BA/31569 of Abdulrazak Ahmad Kariya purportedly issued by second respondent in 2006 after alleged service of revocation letter Exhibit H on Abubakar Baba who, as I shall show immediately, was long dead to the knowledge of 2nd respondent and so could not have been served revocation letter in 2006 as 2nd respondents claims.

To show that Abubakar Baba was to the knowledge of second respondent dead and as such could not have been served revocation notice in 2006, I revert first to

the Sharia Court’s Application (Exhibits A’) to second respondent for its Consent. In Exhibit A, dated 26th May 2003 and addressed to the Hon. Commissioner, Ministry of Land and Survey, Lands Div., Bauchi, the Sharia Court No 1, Bauchi, Kobi Street, wrote thus:
APPLICATION FOR CONSENT TO ASSIGNED (SIC) CERTIFICATE OF Occupancy NO BA-2355 THE LANDED PROPERTY OF LATE ABUABAKAR BABA (DECEASED)
We wish to apply for consent to assign this landed property to Rose Idi of B.A.S.P. in accordance with the power vested in this Court. This is in order to enable this Court distribute the money to his heirs.
The consideration is Two Hundred and Fifty Thousand Naira (N250,000.00).
We hope this application would be oblige (sic) please. (Italics mine)

This document disclosed to 2nd respondent in the clearest terms that Abubakar Buba who held Certificate of Occupancy No BA/2355 was dead since 2003 and the application for consent was to enable the Sharia Court distribute his property among his heirs. Of course only the dead, and not the living, can get heirs.

The response of second respondent to Exhibit A is contained in Exhibit B dated

16th April 2004 and titled “CONSENT TO ASSIGNMENT OF RIGHT OF OCCUPANCY No BA./2355. ABUBAKAR BUBA”. In Exhibit B, second respondent wrote:
1. I am directed to refer to your application dated 26th May 2003 and to convey Governor’s approval of Assignment of the Properties covered by the above title to the ROSE IDI at a consideration of N250,000.00 (Two Hundred and Fifty Thousand Naira only).
2. The approval hereby conveyed is subject to submission of a satisfactory deed of Assignment/Payment of stamp duty and registration fees within 4 months after which penalty will be imposed for late submission.
3. Stamp duty and registration fees will be charged on the current value of the property at N350,000.00.
Umar S. Ghital
(For Hon. Commissioner)

Given these two documents showing that second respondent was aware of the demise of Abubakar Buba as far back as 2003 and 2004, it is downright mendacious for it to claim as it did in this case that it addressed and served its Revocation Notice (Exhibit H) on him two years later in 2006 in his former office at Ministry of Works and Survey in Gombe to revoke his Certificate of

Occupancy No BA/2355. Second respondent could only have done that by serving his ghost or following him to the world beyond to serve him. It is a story fit only for the marines. I have no doubt that it did not, and never served, Notice of Revocation on Mr. Abubakar Baba.

In fact, the mendacity of second respondent on this issue even goes beyond the issue of service of the said notice on Late Abubakar Buba in 2006, for the same Revocation Notice (Exhibit H) also clearly told a lie by claiming on its face that Abubakar Buba’s Certificate of Occupancy was revoked ‘in view of the following covenants detailed in the Grant’:
“1. Failure to erect a building on the said plot since 1979.
2. Failure to pay the outstanding Ground rent from 1979 to 2005 without demand.” (Emphasis all mine)

As shown earlier, second respondent admitted in paragraph 5 of its statement of defence that Abubakar Buba’s Right of Occupancy was only allocated to him and his Certificate of Occupancy No BA/2355 issued on the 27th day of May 1980. How then can the same Certificate be said to contain or ‘detail’ covenants to pay

ground rent from 1979 and to erect building on the land in the same 1979, both of which the Revocation Notice says were the reasons his Certificate of Occupancy was revoked?

Clearly, the said Revocation Notice, Exhibit H, is a poorly made contrivance, a ruse, by second respondent and whoever else was involved in its making, to transfer, unlawfully, appellant’s land to Abdulrazaq Kariya, first respondent’s alleged predecessor in title.

Put simply, second respondent never revoked Late Mr. Abubakar Baba’s Certificate of Occupancy No BA/2355 as it claims so it could not have validly passed any interest in the disputed land or issue Certificate of Occupancy No BA/31566 over it to first respondent’s predecessor-in-title Abdulrazaq Ahmad Kariya in 2006. Mr. Abubakar Baba’s Certificate of Occupancy No BA/2355 which was assigned to appellant as far back as 2004 with 2nd respondent’s consent continued to run.

other Right or Certificate of Occupancy can run over that same piece of land. This much was reconfirmed by the apex Court even recently in Orianzi v. Attorney-General Rivers State (2017) LPELR- 41737 (S.C.) when it held (Galinje, J.S.C.) as follows at p. 27:
“The law is settled that for as long as the previous or earlier title or Right of Occupancy in or over a piece or parcel of land subsists, no other rival or competing title or Right of Occupancy can simultaneously exist in or over the same piece of land. As Belgore, JSC (as he then was) stated in KARI v. GANARAM (1997) 2 NWLR (Pt. 488) 380 at 400, the subsequent grant of that other ‘Right of Occupancy’ over the same piece of land will therefore be merely illusory and invalid.

‘The appellant’s right of occupancy subsists up till now as it has not been revoked and the wrongful grant to the 1st respondent has no effect whatsoever on its authenticity. Two Rights of Occupancy cannot subsist in respect of the same property or else there will be anarchy.”

Illusory and invalid is also the effect of the Right of Occupancy No. BA/31569 Abdulrazaq Ahmad Kariya which he also

purports to have assigned to first respondent and his company via Exhibit F1. Nothing was passed to Abdulrazaq Ahmad Kariya and none was transferred by him to first respondent and his company Arabab Nig. Ltd.

Clearly, the lower Court, with all due respect, failed in its duty of properly evaluating the evidence before it as appellant rightly complains.

All the foregoing analysis should ordinarily decide this appeal in favour of appellant: for if 2nd respondent’s title was invalid and Abubakar Buba’s interest in the disputed land the assignment to appellant of which second respondent sanctioned was proper and as she claims, and she was also in possession of it by fencing it with blocks since 2005 before first respondent and his company’s unauthorized entry into it, then they were in trespass and liable to pay damages to her and to be further restrained by an order of injunction.

Nevertheless, let me out of abundance of caution also address the other claim of the second respondent that appellant’s failure to perfect her title within four months of the assignment to her in 2004 also invalidated her interest over it, which

argument the lower Court also upheld. On this, I again agree with appellant that Paragraph 2 of her Assignment Approval by second Respondent (Exhibit B earlier reproduced) did not make any such outright provision for cancellation of her assignment for late payment. On the contrary, it simply stated, clearly, that late payment would only attract penalty. For ease of reference I again reproduce the said clause of Exhibit B which read thus:
2. The approval hereby conveyed is subject to submission of a satisfactory deed of Assignment/Payment of stamp duty and registration fees within 4 months after which penalty will be imposed for late submission.

Second respondent having by itself fixed these terms of the approval permitting late payment by her cannot deviate from it and use late payment as a ground for refusal to accept late perfection of appellant’s title.

On the whole, I have no difficulty agreeing with appellant that she proved her claims before the lower Court on balance of probability and the lower Court was wrong in dismissing them. In the event, I allow her appeal and set aside the judgment of the lower Court and in its stead make an

order granting her claims as follows:
1. It is here declared that appellant Mrs. Rose Idi cannot be dispossessed of her right over the disputed land covered by Right of Occupancy No BA/2355 originally issued to Late Abubakar Baba by the Bauchi State Government, on which she had already constructed a three course block fence since the year 2005, without recourse to law.
2. It is further declared that Mrs. Rose Idi having taken possession of the said land remains its owner or lessee.
3. It is also declared that 1st respondent Alhaji Rabiu Buba Arab and his Company Arabab Nig. Ltd are trespassers on the said land of Mrs. Rose Idi.
4. It is also declared that 2nd respondent lacks power or competence to confer any other right over the said land of Mrs. Rose Idi while she is in possession.
5. I award general damages of ₦500,000.00 (Five Hundred Naira) awarded against 1st respondent(s) Alhaji Rabiu Buba Arab and his Company Arabab Nig. Ltd for their trespass on the said land of appellant, Mrs. Rose Idi.
6. An order of perpetual injunction is here also ordered restraining both the respondents, their agents, servants, privies and any

person claiming through them from entering or dealing in any way with appellant’s land the subject of this suit covered by Right of Occupancy No. BA/2355, unless and until her right is properly revoked in accordance with law.

Costs follow the events. Accordingly, I hereby fix costs of the suit at the trial Court at ₦80,000.00 and for this appeal at ₦100,000.00, all in favour of appellant and against the two respondents jointly and severally.

ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading in draft the lead Judgment of my learned brother, Ugo, J.C.A. just delivered. I agree with the reasoning and conclusion arrived at that the appeal is meritorious and ought to be allowed. I too allow the appeal and abide by all the consequential orders contained in the lead Judgment inclusive of costs.

TANI YUSUF HASSAN, J.C.A.: I agree with the lead judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA.
I abide by the order as to costs.

Appearances:

T. Ishaku, Esq. For Appellant(s)

O. Nwoye, Esq. – for 1st Respondent.
A.H. Umar, Esq., (Deputy Director, Bauchi State Ministry of Justice) – for 2nd Respondent For Respondent(s)