KULUKULU v. WEMA BANK PLC
(2022)LCN/16952(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, June 10, 2022
CA/AK/43/2016
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
MR. ADISA MURITALA KULUKULU APPELANT(S)
And
WEMA BANK PLC RESPONDENT(S)
RATIO
WHETHER OR NOT A PERSONS RIGHT OF OCCUPANCY CAN EXTINGUISHED ANOTHER
This then bring me to the issue of the revocation of the Certificate of Occupancy. The Supreme Court in the case of Adole V. Gwar (2008) LPELR-189 (SC) held:
“Be it noted that it has long been settled by this Court that one right of occupancy cannot just extinguish another. Nigeria Engineering Works V. Denap (2001) 12 SC (Pt. 11) 136”
The Supreme Court again in the case of Atanda V. Iliasu (2012) LPELR 19662 (SC) held:
“Merely being in possession of a Certificate of Occupancy is not ipso facto a conclusive evidence of title; or ownership. See the case of Chinye A. A Ezeanah V. Alhaji Muhammed I. Attah (2004) 2 SCNJ 200, where this Court at page 204 held and said “A Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in possession of the land in respect of thereof such a Certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable, because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy then the Court can revoke”. PER BASHIR, J.C.A.
WHETHER OR NOT THE NON-JOINDER OF A NECESSARY PARTY IN A SUIT CAN AFFECT THE COMPETENCE OR JURISDICTION OF THE COURT TO ADJUDICATE ON THE MATTER BEFORE IT
Next is whether the non-joinder of the Governor of Osun State who issued Exhibit DW1C the Appellant’s Certificate of Occupancy has robbed the Court of the jurisdiction to hear and determine the case as argued by the Appellant. The position of the law is very clear that non-joinder of a necessary party in a suit is only an irregularity that does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it: See: Okoye V. Nigerian Construction & Furniture Co Ltd & Ors (1991) 7 SC and Green V. Green (1987) 3 NWLR (60) 480. The only thing however is that the Court cannot make a binding order against a person who was not a party to the action though such an order is not a nullity. See Azuh V. Union Bank(2014) LPELR–22913 (SC) from the entire gamut of the claim and the evidence before the Court at trial there was no specific allegation or claim against the Governor of Osun and there is no order made against the Governor in the main suit by the trial Court; therefore the non-joinder of the Governor of Osun State has no impact on the competence of the action on or the jurisdiction of the Court. PER BASHIR, J.C.A.
WHETHER OR NOT A CERTIFICATE OF OCCUPANCY CONFERS AN INDEFEASIBALE TITLE TO LAND
The law is that a certificate of occupancy by itself does not confer an indefeasible title to land. It is neither the grant of nor title to the land in dispute. It merely raises a rebuttable presumption that the holder is the owner in exclusive possession of the land in respect thereof, and if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy then the Court can revoke it – Ilona Vs Idakwo (2003) 11 NWLR (Pt 830) 53, Ezeanah Vs Attah (2004) 7 NWLR (Pt 873) 468, Aminu Vs Ogunyebi (2004) 10 NWLR (Pt 882) 457, Din Vs Attorney General, Federation (2004) 12 NWLR (Pt 888) 459, CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530. A certificate of occupancy obtained in respect of land which the holder cannot prove to be his is not worth the paper on which it is – Dzungwe Vs Gbishe (1985) 2 NWLR (Pt 8) 528, Adebiyi Vs Williams (1989) 1 NWLR (Pt 99) 611, Gamboruma Vs Borno (1997) 3 NWLR (Pt 495) 530, Madu Vs Madu (2008) 6 NWLR (Pt 1083) 296, Okunowo Vs Molajo (2011) 3 NWLR (Pt 1235) 434. A certificate of occupancy properly issued under the Land Use Act ought to be a reflection and an assurance that the grantee has to be in occupation of the land and where it is shown by evidence that another person had better right to the grant, the Court will have no alternative but to set aside the grant, if asked to do so or otherwise to ignore it – Ahaneku Vs Iheaturu (1995) 2 NWLR (Pt 380) 758, Kaigama vs Namnai (1997) 3 NWLR (Pt 495) 549, Agundo Vs Gberbo (1999) 9 NWLR (Pt 617) 71, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597, Edebiri Vs Daniel (2009) 8 NWLR (Pt 1142) 15, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25. In Ogunleye Vs Oni (1990) 2 NWLR (Pt 135) 745, the Supreme Court stated at page 752 that:
“It is clear from the provisions of Section 34 of the Land Use Act that any person without title to a parcel of land in respect of which a certificate of occupancy was issued, acquires no right or interest which he did not have before. This is the weakness of a certificate of occupancy issued in such a case. It is never associated with title, thus where as in this case a certificate of occupancy has been issued to one of the claimants who has not proved a better title, then it has been granted against the letter and spirit of the Land use Act.” PER ABIRU, J.C.A.
YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): The Respondent, sometimes on or about the 1st September, 2006 instituted an action before the High Court of Osun State sitting at Iwo against one Chief Kasali Ejemu vide a Writ of Summons which was later amended on 2nd March, 2011 claiming the following reliefs:
(1) A declaration that the Plaintiff is entitled to the statutory right of occupancy in respect of a piece and parcel of land lying, situate and being at old motor park, Iwo Osun State, measuring approximately 1,958 square meters and bounded on each side as follows:
(i) Right by Total Filing Station
(ii) Left by Phoenize Filing Station
(iii) Back by post Office -Baptist
(iv) Front by Ibadan road.
(2) A Declaration that the Certificate of Occupancy issued to the Defendant by the Governor of Osun State in respect of the land in dispute is irregular and invalid and that same be set aside.
(3) An order of injunction restraining the Defendant, his servants, agents and any other person or persons claiming through him or under him from further entering or committing further acts of trespass on the said land and property of Plaintiff lying and being at old motor park, Ibadan road, Osun State.”
Meanwhile, the Appellant who was not a party at the commencement of the action applied and was joined as a second Defendant while the proceedings were underway, the 1st Defendant Chief Kasali Ejemu died his name struck out and the case therefore continued to its conclusion with the Appellant as the only surviving Defendant.
The entire fulcrum of this case is founded on the averments contained in paragraphs 6, 7, 8, 9, 10, 14, 15, 17, 20, 12, 23 and 24 of the Amended Statement of Claim and the Evidence of PW1 Mr. Foluso Osowo which translates to the fact that the land in dispute being and lying at Iwo Osun State originally belonged to the Ejemu family. It was acquired by the Iwo District Council some fifty years ago for the purpose of establishing a Motor Park.
The Iwo District Council through the then Oba gave to Ejemu family another piece of Land located at Isale Oba-Obatedo, Iwo in exchange or replacement of their family land acquired for the motor park. Therefore the motor park was established, it operated there for about 30 years then relocated to another place. The disputed land was then granted to the defunct National Bank of Nigeria by the Iwo District Council.
The National Bank built on the land a bank building and used it for nearly 30 years; and in 2005 Wema Bank (respondent) acquired the National Bank with all its assets and liabilities, then in August 2005 the Appellant trespassed on the land in spite of the land being in possession of the Bank and that of its predecessor in title the National bank for over 30 years. Hence the action in Court.
Meanwhile the Appellant as the Defendant at the lower Court based his case substantially on his averments in paragraphs 6, 7, 8, 13, 15, 20 and 21 of his consequential amended statement of defence, his evidence in open Court as per his written statement on oath and the effect of his exhibit especially the statutory right of occupancy Exhibit DW1C and the judgment of Court involving Karimu Adigun Vs Kasali Ejemu in Suit No: HOS/11/81 Exhibit DW1D.
Where he averred and testified that the land in dispute actually belonged initially to the Ejemu family from whom he contended that the land was compulsorily acquired for the motor park without compensation to the Kasali Ejemu family and that National Bank came upon the land without the knowledge of the family but at the behest of the Iwo District Council.
At the conclusion of the trial where both sides called only one witness each and tendered some Exhibits, the Learned Trial Judge in a considered judgment delivered on the 8th day of November, 2012 granted all the Respondent’s claims/reliefs which decision did not go down well with the Appellant, the Appellant filed a Notice of Appeal before the lower Court on 21/5/2015 after obtaining leave and an extension of time to file his Notice of Appeal, granted by this Court on the 13th May 2014.
The Notice of Appeal contained 3 grounds of appeal (without their particulars) namely:
ERROR OF LAW
(1) The Learned Trial Judge erred in law when he declared the Certificate of Statutory Right of Occupancy issued to the Defendant as irregular and invalid and thereby set it aside.
ERROR OF LAW
(2) The Learned Trial Judge erred in law when he held that the acquisition of the land in dispute by the then Iwo district council was valid and constitutional.
ERROR OF LAW
(3) The judgment of the trial Court is against the weight of evidence.
From this Grounds of Appeal, the Appellant formulated 3 issues for determination as contained in the appellant’s brief of argument filed on 28/11/2018 deemed on 16/3/2022.
ISSUES FOR DETERMINATION
(1) Did the trial Judge exercised his discretion judicially and judiciously in declaring the Statutory Right of Occupancy properly obtained and by proper procedure as irregular without evidence which nullified the grant?
(2) Was there any evidence of compulsory acquisition of the land of the Ejemu family by the Iwo Local Government or any payment of compensation to the Ejemu family which could have shown that there had been a compulsory acquisition of the land?
(3) There was really no evidence tendered to prove claimant’s case and could therefore not succeed on the strength of such a weak case. The trial proceedings was to say the least without substance.
The Respondent on its part filed a Respondent’s brief on 20th January, 2020 deemed on 16/3/2022. Where three similar issues were formulated for determination thus:
(1) Whether there is evidence of compulsory acquisition of the land in dispute before the lower Court?
(2) Whether the lower Court was right when it declared the Certificate of Statutory Right of Occupancy (Exhibit DW1c) in respect to the land in dispute as irregular and invalid?
(3) Whether from the totality of evidence led before the lower Court, was the lower Court right in giving judgment to the Respondent?
The Appellant’s reply brief was filed on 20/3/2020 also deemed on 16/3/2022.
SUBMISSIONS OF COUNSEL
The Appellant’s Counsel submits in respect of issue 1 that the power to issue a Certificate of Occupancy is a statutory one. Section 5(1)(a) of the Land Use Act confers on the Governor in respect of land the powers to grant Statutory Right of Occupancy to any person and for all purposes that Section 5(2) states that upon the grant of a statutory right of occupancy under the provision of Subsection (1) thereof all existing rights of the use and occupation of the land shall be extinguished.
Learned Senior Court submits that by granting of the Certificate of Occupancy here Exhibit DW1C, by the State Government all existing right on the land has been extinguished. See Ibrahim V. Mohammed (2002) LPELR (SC) and Savanah Bank of Nig. V. Ajilo (1989) LPELR 3019 SC.
The Learned Senior Counsel submits further that with the granting of the Certificate of Occupancy (Exhibit DW1C) the claimant’s right if any had been extinguished. Further still that Exhibit DW1C rendered invalid by the trial Court, having being granted by the Governor, any question as to its validity, the office of the Governor should be a necessary party. He cited the Court of Appeal’s decision in Mr. Sunny Oberumor Adeda V. Madam Idonor (2013) LPELR 21987 (CA)
On the account of not joining the Governor in the trial Court, Counsel submits has no jurisdiction to entertain the suit. That at the trial the Appellant testified as DW1 he gave evidence of how his application for Certificate of Occupancy was duly advertised in Tribune, Exhibit DW1B and how the Certificate of Occupancy was eventually granted to him by the Governor without any fraud or misrepresentation therefore it is only the Governor who has the right to revoke the certificate for overriding public interest under Section 28(1) of the Land Use Act 1978. So unless where there is clear evidence of acquisition, the Court cannot revoke a Certificate of Occupancy.
On issue two, Appellant argued that he has pleaded how some members of the Ejemu being the original owner sold the land to him and how he applied and was granted a Certificate of Occupancy by the Osun State Government and that the land was never compulsorily acquired from the Ejemu family by the Iwo district council as no compensation was paid to the family.
That one of the conditions for a compulsory acquisition is the payment of compensation and where compensation is paid properly, no action accrues to the party whose property was acquired. See Alhaji Munakano V. Government of Adamawa State (2014) LPELR 24161 CA.
That the Respondent did not disclose the purpose of the acquisition of the land from the Ejemu family, there is no document tendered showing whether notice of acquisition was given to his vendor, the Ejemu family.
The procedure was not followed in the process of the acquisition of the land to satisfy the provision of the law on public acquisition of the land. That in civil cases the burden of proof is on the person who will fail if no evidence has been adduced on either side. The Respondent has not been able to prove that the land was acquired by the Government.
On issue 3 the Appellant’s Counsel submits that the Respondent as claimant had the duty to proffer enough evidence in proof of his case where he fails, he cannot be entitled to judgment. Except where the defendant’s case supports that of the Claimant he is entitled to rely on same: Oyoubiare V. Omamerhomu (1999) 10 NWLR (Pt 621) 23.
Finally, the Learned Senior Counsel submits that the Respondent was not able to prove theirs at the trial. The weight of evidence tendered by them amounted to very little and could not tilt the scale in their favour.
The Learned Counsel urged this Court to allow the appeal and restore his statutory right of occupancy for him.
Responding, the Respondent’s Counsel submits that where it is shown by evidence that another person other than the grantee of the Certificate of Occupancy had a better title to the land, the Court has the power to set aside the grant or otherwise discountenance it as invalid; defective and spurious. See Boniface Gwar V. S. O. Adole (2003) 3 NWLR (Pt. 808) p 516 as a Certificate of Occupancy is not a conclusive evidence of any right, interest or valid title to land in favour of the grantee. It is only a prima facie evidence of such right at best. It can be challenged and in appropriate instances be rendered invalid, null and void. See Oluhunde V. Adeyoju (2000) 10 NWLR (Pt. 676) 562.
Learned Counsel further submits that in this case, there is evidence that the land in dispute was acquired from its original owner the Ejemu family of Iwo over 50 years ago by the Iwo district council used as a motor park for several years before the Iwo districts.
Council gave the land to the then National Bank over 30 years ago; they constructed their Bank Building on the land, kept possession until 2005; when the Appellant claimed to have bought it from the Chief Kasali Ejemu family evidence of PW1, page 108-110 DW1 who is the Appellant in this case the Learned Counsel contends that he admitted under cross-examination all these facts. See page 399 of the record.
The Appellant also tendered Exhibit DW1D a judgment of the High Court of Ondo State in suit No HOS/11/84 Between Karimu Adigun Vs Kasali Ejemu (Vendor of the Appellant) where the said Kasali said in evidence that his family compound was acquired during the construction of the Ibadan/Iwo road some 26 years ago it divided the compound into two, one part was acquired by the Government for motor Park and Petrol Station” for which compensation was paid. Counsel referred us to Section 21(3)(b) of the Evidence Act, 2011 which provides that an admission by a person from whom the Appellant got his title, is therefore an admission against interest, that disputed land was validly acquired coming from the Ejemu family, some 50 years ago by the Iwo District Council. So the purported sale of the land to the Appellant by Chief Kasali Ejemu is invalid. Land under valid acquisition cannot be sold. See Yusuf V. Oyetunde (1998) 12 NWLR (Pt 579) 483.
Submits further that only a person deriving title through Iwo district Council which acquired the land over 50 years ago that has the right to apply for a Certificate of Occupancy over the land in dispute.
Respondent’s Counsel submits that the argument by the Appellant that only the Governor has the right to revoke a Certificate of Occupancy is misplaced. The powers of the Governor are distinct from those of the Court which also has the power to nullify a Certificate of Occupancy irregularly issued. See Madam Adigha Edohoeket & Or V. Inyang John Inyang (2010) 7 NWLR (Pt. 1192) 25 at 43.
The Counsel submits that the Governor is not a necessary party in this suit so his presence or absence will not be of any consequence as they have no claim against the Governor as to make the Governor a party in the matter.
On the whole, the Respondent’s Learned Counsel concluded his argument by saying that there is evidence before the trial Court that the land in dispute was acquired by Iwo District Council which later transferred the said land to the Respondent’s Bank.
That there is also evidence that the Appellant is not a proper person entitled to the grant of Statutory Right of Occupancy in respect of the land in dispute. The appeal should be dismissed.
RESOLUTION
By the nature of the claim in this matter at the lower Court which involved a declaration of title to land, and other reliefs there is a heavy burden on the Claimant/Respondent to prove his case based on the strength of his own case. Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 SC.
There is no dispute whatsoever, in fact, the parties are ad-idem that the land in dispute originally belonged to the Kasali Ejemu family of Iwo in Osun State. The Respondent as Claimant at the Court of trial pleaded and led evidence through PW1 that the land in dispute was obtained from the Ejemu family its original owners well over 50 years ago by the Iwo district council and established a motor park thereon which motor park was managed by the Iwo district council for over 30 years. When the defunct National Bank wanted to establish its branch in Iwo, the district council vacated the motor park and handed over the land to the National Bank.
The Bank built its branch (Bank building) on the land and commenced business activities thereon. There has never been any challenge ever since to the National Bank for over 30 years it occupied the land that in 2005 Wema Bank (The Respondent) acquired National Bank together with all its assets and liabilities including the building of the Iwo Branch. PW1 that they only got to know that Chief Kasali who was the original defendant in this matter had sold the land to the present defendant after this matter had already commenced.
This is the piece of evidence the Appellant has argued is not enough to sustain the Respondent’s claim because there is no evidence of payment of compensation to the Kasali Ejemu family the original owners of the land in order to divest them of its ownership.
Meanwhile, in the course of the trial, the Appellant testified as DW1 and in support of his case, he tendered some documents including a Court judgment involving his vendor Kasali Ejemu and one Karimu Adigun Suit No. HOS/11/81 Exhibit DW1D. Under this Exhibit, Mr. Kasali Ejemu Defendant therein testified as DW1, his main evidence was recapitulated at page 4 of the Exhibit while his evidence under cross-examination was captured in page 6 of the Exhibit, therefore in response to the Appellant’s contention relating to non-payment of compensation to the Ejemu family which family the Appellant is not part of, but the Appellant as DW1, while being cross-examined he agreed that Chief Kasali Ejemu the person who sold the land to him testified in the trial that produced Exhibit DW1D to the effect that the land in dispute was acquired by Government for public use that the land was acquired for motor park. Which land was later handed to National Bank. A closer examination of Exhibit DW1D itself reveal then Mr. Kasali Ejemu (Appellant’s Vendor) testifying as witness and Defendant in the matter he had told the Court that his family compound is Ejemu compound that when the Ibadan/Iwo road was being constructed the road cut the Ejemu compound into two, one part was acquired by Government for a motor park and petrol station.
He went on to say under cross-examination that “his family was among those compensated for the acquisition” primarily this case concerns the portion that became motor park for which compensation was paid.
The Respondent’s Counsel made the following submission, paragraphs 4.1-4.7 in the respondent’s brief of argument.
“4.1 My Lords, the Appellant pleaded and gave evidence that the land in dispute was acquired by the Iwo District Council over 50 years ago. Refer to the consequential amended statement of defence of the Appellant dated 12th April, 2011, but filed on 14th April, 2011 paragraph 6 thereof. Refer to page 243 of the record. Refer also to the written statement on oath of the Appellant as DW1 before the lower Court paragraph 29 thereof on page 248 of the record.
4.2 Furthermore, the Appellant under cross-examination admitted that the land in dispute was acquired but no compensation was paid and that the National Bank building is still on the land up till now. Refer to page 399 of the record lines 1-9.
4.3 The Appellant as DW1 before the lower Court, tendered Exhibit DW1D. Exhibit DW1D is the judgment of the High Court of Oyo State delivered on 16/7/1984 in Suit No: HOS/11/84 between Karimu Adigun V. Kasali Ejemu. (the Vendor of the Appellant herein) my Lords at page 4 lines 26 to 31 of Exhibit DW1D Chief Kasali Ejemu the Vendor of the Appellant testified in that judgment with respect to the acquisition of the land in dispute thus:
“… his family compound is Ejemu Compound. He said that when the Ibadan/Iwo Road was being constructed about 26 years ago, the road cut Ejemu’s Compound into two, one part was acquired by the government for motor park and petrol station”.
4.4 Furthermore on page 6 lines 13-16 of Exhibit DW1D Chief Kasali Ejemu the Vendor of the Appellant under cross-examination as shown in the said judgment testified further that:
“His family was among those compensated for acquisition for Ibadan/Iwo Road”.
4.5 My Lords, S. 21(3)(b) of Evidence Act 2011 provides:
“Statement made by person from whom the parties to the suit derived their interest in the subject matter of the suit are admissions, if they are made during the continuance of the interest of the person making the statements.”
4.6 We do hereby submit that the evidence of Chief Kasali Ejemu the vendor of the Appellant in Exhibit DW1D is an admission against interest and the Appellant herein derived his interest in the land in dispute from the said Chief Dasali Ejemu. We therefore urge my Lords to hold that the Appellant has admitted that the land in dispute was validly acquired by the Iwo District Council some 50 years ago.
4.7 My Lords all these evidence and facts in the Appellant case before the lower Court were in support of the case of the Respondent. My Lords, the principle of law that the Plaintiff must rely on the strength of his own case and not on the weakness of the defence to succeed is subject at the present day to exceptions one of which is that where the facts in the Defendant’s case support the Plaintiff’s case as recognized in Akinola V. Oluwo (1962) ISCNLR 352. Refer to Ogbuokwelu V. Umeanafunkwa (1994) 4 NWLR (Pt. 341) P. 676 at P. 708 paragraph E-G.”
I agree in toto with these submissions. It represents the true position of the law.
This aspect of the case of the Appellant depicting the unmistakable position of Kasali Ejemu and his vendor that they were paid compensation upon the Acquisition of the land clearly supports the case of the Respondent/Claimant therefore the Learned Trial Judge was right in invoking the law which gives a Claimant in a declaratory action the right to take advantage of the evidence from the defendant’s case which tend to support and strengthen his case. See also Alli V. Alesinloye (2000) FWLR (Pt 15) 2613 SC.
Much more so because Exhibit DW1D containing the evidence of the Appellant’s predecessor in title Mr. Kasali Ejemu who is now deceased was tendered by the Appellant himself to establish his claim but it has ended up contradicting his own basic and fundamental assertion that Ejemu family was not paid compensation, under the Evidence Act this is one of the grounds upon which evidence given in previous proceedings can be used in subsequent proceedings. See Section 34 of Evidence. The Exhibit is also a relevant fact as far as the issues of compensation to the Ejemu family is concerned under Section 34 of the Evidence Act.
If you aggregate the evidence led by the Respondent which in any case is not disputed that the land in dispute was first acquired from the Kasali Ejemu family, its original owner by Iwo District Council some 50 years earlier converted same to a motor park and later the Iwo District Council allocated same to the National Bank which constructed its Iwo Branch thereon and operated for 30 years on the land before it was eventually acquired and became Wema Bank, together with the evidence of Kasali Ejemu – the predecessor in title to the Appellant that their family has been paid compensation for the land so acquired, it will not be very difficult to conclude that the title of the Respondent is well founded.
Come to think of it, there is no claim of non-payment of compensation raised and tried before the lower Court at the instance of the Kasali family who was original Defendant before the coming of the Appellant, such a claim cannot be countenanced from the Appellant who is not a member of the Kasali Ejemu family.
The Learned Trial Judge made the following findings in his judgment:
“In this case the defendant did not deny the fact of the acquisition by the Government, but he is contending that the government did not pay compensation to the Ejemu family since 50 years ago; when it was acquired.
Thus the defendant is asserting that the Ejemu family was not paid compensation for the acquisition of the land in dispute. He has a duty in law to prove this assertion, as the law requires a person who assert to prove” Section 131(1) of the Evidence Act, 2011. See also the cases of:
(1) Famuroti V. Agbeke (1991) 5 NWLR (Pt. 189) 1 at 13 para. F
(2) C. O. P. V. Oguntayo (1993) 6 NWLR (Pt 299) 259 at page 268 para. E.”
The Defendant has failed to comply with this requirement of the law and he cannot therefore base his claim to the land in dispute on that ground. I agree with the Plaintiff’s Learned Counsel Mr. Idowu that the acquisition of the land in dispute by the then Iwo District Council about 50 years is presumed valid and constitutional”
Invariably therefore, by this findings which I fully endorse, the Kasali Ejemu family have had their title over this land extinguished since the acquisition and payment of compensation, the title became vested on the Iwo District Council and only the Iwo Council that reserve the right to transfer title to any other body or person. Since it is very clear that the defunct National Bank got its title directly from the Iwo District Council and the Respondent derived its title from the National Bank whose building is still standing on the land along with the mast of the MTN planted on the authority of the National Bank it goes without saying that only the Respondent (Wema Bank) that is legally and validly entitled to apply for a statutory right of occupancy. At the time the Appellant purportedly bought the land from the Kasali Ejemu by virtue of which he proceeded to apply and obtained Certificate of Occupancy Exhibit DW1C, the said family has no title or indeed nothing to convey and or transfer to him.
And this has provided a perfect situation for the Court to set aside and nullify the Certificate of Occupancy obtained by the Appellant under this circumstance.
This then bring me to the issue of the revocation of the Certificate of Occupancy. The Supreme Court in the case of Adole V. Gwar (2008) LPELR-189 (SC) held:
“Be it noted that it has long been settled by this Court that one right of occupancy cannot just extinguish another. Nigeria Engineering Works V. Denap (2001) 12 SC (Pt. 11) 136”
The Supreme Court again in the case of Atanda V. Iliasu (2012) LPELR 19662 (SC) held:
“Merely being in possession of a Certificate of Occupancy is not ipso facto a conclusive evidence of title; or ownership. See the case of Chinye A. A Ezeanah V. Alhaji Muhammed I. Attah (2004) 2 SCNJ 200, where this Court at page 204 held and said “A Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in possession of the land in respect of thereof such a Certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable, because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy then the Court can revoke”.
This presumption I must say has been successfully rebutted in this case and the Appellant’s Certificate of Occupancy was validly revoked and set aside by the trial Court, the fact is that the Appellant’s Certificate of Occupancy was granted while the interest of the Respondent was subsisting on the land, and has not been validly revoked or acquired through a lawful and legal means. See Teniola V. Olohunkun (1999) LPELR 3141 SC where it was held by the Supreme Court that “one of the reasons for holding that there has been an improper issuance of a Certificate of Occupancy is where another person’s right in the land was subsisting at the time the Certificate of Occupancy was issued”
Next is whether the non-joinder of the Governor of Osun State who issued Exhibit DW1C the Appellant’s Certificate of Occupancy has robbed the Court of the jurisdiction to hear and determine the case as argued by the Appellant. The position of the law is very clear that non-joinder of a necessary party in a suit is only an irregularity that does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it: See: Okoye V. Nigerian Construction & Furniture Co Ltd & Ors (1991) 7 SC and Green V. Green (1987) 3 NWLR (60) 480. The only thing however is that the Court cannot make a binding order against a person who was not a party to the action though such an order is not a nullity. See Azuh V. Union Bank(2014) LPELR–22913 (SC) from the entire gamut of the claim and the evidence before the Court at trial there was no specific allegation or claim against the Governor of Osun and there is no order made against the Governor in the main suit by the trial Court; therefore the non-joinder of the Governor of Osun State has no impact on the competence of the action on or the jurisdiction of the Court.
In the final analysis, this appeal has no merit, it must fail and in fact, it has failed and is hereby dismissed. The judgment of the lower Court in Suit No: HIW/26/2006 delivered on 8th November 2012 is hereby affirmed.
The sum of N150,000.00 is hereby awarded as cost against the Appellant in favour of the Respondent.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother, Yusuf Alhaji Bashir, JCA; in this appeal.
The judgment is lucid and insightful and I cannot think of any aspect therein that warrants contribution from me. I agree in entirety with the reasoning of my learned brother in the said judgment and abide by the resolution of all the issues upon which the appeal has been determined in the judgment as well as the consequential order in relation to costs made by his lordship.
Accordingly, I too dismiss the appeal and affirm the judgment of the lower Court delivered in Suit No HIW/17/2016 on 25/1/2019.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Yusuf Alhaji Bashir, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.
The undisputed facts of this case are that the parcel of land in dispute originally belonged to the Ejemu Family until it was acquired by the Iwo District Council over fifty years ago for the purpose of establishing a motor-park. The motor park was duly established on the land and it operated thereon for about thirty years before it was relocated to another place. The parcel of land was thereafter granted to National Bank of Nigeria Ltd by the Iwo District Council and the Bank erected a building on the land which it used for its banking operation for almost thirty years without any disturbance or hindrance from anyone. In 2005, the Respondent acquired the liabilities and assets of National Bank of Nigeria Ltd, inclusive of the land in dispute and in August of 2005, the Appellant trespassed into the land.
This was the case made out by the Respondent on its pleadings and in its oral and documentary evidence led thereon. The facts were confirmed by the oral evidence elicited from the Appellant under cross-examination and the contents of the documentary evidence he tendered in support of his case. It is an accepted principle in land matters that although the claimant succeeds on the strength of his evidence, where, however, the evidence of the defendant itself supports the case of the claimant and contains evidence on which the claimant may rely, then provided that evidence is credible and accepted by the Judge during the assessment of the evidence adduced, the claimant shall be entitled to the evaluation of the evidence in his favour, so as to increase the strength of his case – Nwankwo Vs Ofomata (2009) 11 NWLR (Pt 1153) 496, Iroagbara vs Ufomadu (2009) 11 NWLR (Pt 1153) 587, Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175. In other words, that the principle that a claimant must rely only on the strength of his case and not on the weakness of the defendant’s case does not apply where there are facts and factors in the defendant’s case which support the case of the claimant; the claimant can rely on such facts and factors – Akinola Vs Oluwo (1962) 1 SCNLR 352, Nwagbogu Vs Ibeziako (1972) ECSLR (Pt 1) 335, Edohoeket vs Inyang (2010) 7 NWLR (Pt 1192) 25, Dimkpa Vs Chioma (2010) 9 NWLR (Pt 1200) 482, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1.
In contending against the case of the Respondent, the Appellant relied on a Certificate of Statutory Right Occupancy which he obtained on the 5th of December, 2006 upon the purchase of the land from the Ejemu Family in 2005. The lower Court, upon the undisputed state of the facts as stated above, nullified and set aside the Certificate of Occupancy of the Appellant and granted the claims of the Respondent to ownership of the land in dispute. Counsel to the Appellant contends in this appeal that the lower Court was in error in nullifying and setting aside the Certificate of Occupancy of the Appellants because (i) by the provisions of the Land Use Act, the grant of the Certificate of Occupancy in 2006 extinguished the existing rights of the Respondent on the land; (ii) only the Governor could revoke or nullify a Certificate of Occupancy issued by his office; and (iii) the Governor was not made a party to the action.
Now, it is settled law that the effect of the acquisition of the land in dispute by the Iwo District Council from the Ejemu Family over fifty years ago was that all the rights and interests of the Ejemu Family in the land became totally extinguished and the Ejemu Family could not validly sell the land in dispute to anyone thereafter because they have no title to pass – Yusuf Vs Oyetunde (1998) 12 NWLR (Pt 579) 483, Akinboye Vs Adeko (2011) 6 NWLR (Pt 1244) 415 at 442, Fruits Tropics Industries Limited Vs Amodu (2020) LPELR 51675(CA). Thus, the Appellant purchased nothing in 2005 when he claimed the land in dispute was sold to him by the Ejemu Family. The purported sale of the land was caught by the principle of nemo dat quod non habet, as no one may convey what no longer belongs to him – Ibrahim Vs Osunde (2009) 6 NWLR (Pt 1137) 382, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597.
The law is that a certificate of occupancy by itself does not confer an indefeasible title to land. It is neither the grant of nor title to the land in dispute. It merely raises a rebuttable presumption that the holder is the owner in exclusive possession of the land in respect thereof, and if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy then the Court can revoke it – Ilona Vs Idakwo (2003) 11 NWLR (Pt 830) 53, Ezeanah Vs Attah (2004) 7 NWLR (Pt 873) 468, Aminu Vs Ogunyebi (2004) 10 NWLR (Pt 882) 457, Din Vs Attorney General, Federation (2004) 12 NWLR (Pt 888) 459, CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530. A certificate of occupancy obtained in respect of land which the holder cannot prove to be his is not worth the paper on which it is – Dzungwe Vs Gbishe (1985) 2 NWLR (Pt 8) 528, Adebiyi Vs Williams (1989) 1 NWLR (Pt 99) 611, Gamboruma Vs Borno (1997) 3 NWLR (Pt 495) 530, Madu Vs Madu (2008) 6 NWLR (Pt 1083) 296, Okunowo Vs Molajo (2011) 3 NWLR (Pt 1235) 434. A certificate of occupancy properly issued under the Land Use Act ought to be a reflection and an assurance that the grantee has to be in occupation of the land and where it is shown by evidence that another person had better right to the grant, the Court will have no alternative but to set aside the grant, if asked to do so or otherwise to ignore it – Ahaneku Vs Iheaturu (1995) 2 NWLR (Pt 380) 758, Kaigama vs Namnai (1997) 3 NWLR (Pt 495) 549, Agundo Vs Gberbo (1999) 9 NWLR (Pt 617) 71, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597, Edebiri Vs Daniel (2009) 8 NWLR (Pt 1142) 15, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25. In Ogunleye Vs Oni (1990) 2 NWLR (Pt 135) 745, the Supreme Court stated at page 752 that:
“It is clear from the provisions of Section 34 of the Land Use Act that any person without title to a parcel of land in respect of which a certificate of occupancy was issued, acquires no right or interest which he did not have before. This is the weakness of a certificate of occupancy issued in such a case. It is never associated with title, thus where as in this case a certificate of occupancy has been issued to one of the claimants who has not proved a better title, then it has been granted against the letter and spirit of the Land use Act.”
The Certificate of Occupancy issued to the Appellant over the land in dispute did not dent, scratch or in any way affect the valid title of the Respondent to the land. The lower Court was empowered, on the undisputed facts of this case, to nullify and set aside the Certificate of Occupancy relied upon by the Respondent and issued in 2006 to validate title to land which he did not possess. A person who is the owner of an existing right including customary right of occupancy in respect of land on which a statutory right of occupancy is issued to a third party by the Governor of a State may sue to set aside the right of occupancy granted in favor of the third party -Dabup Vs Kolo(1993) 9 NWLR (Pt 317) 254, Madu Vs Madu (2008) 6 NWLR (Pt 1083) 296. The Governor need not be made a party to the action. It is only where a person seeks the setting aside of acquisition of land by a State Government that the Governor must be joined as a party – Elegushi Vs Oseni (2005) LPELR-1111(SC), Farajoye Vs Hassan (2006) 16 NWLR (Pt 1006) 463.
I agree with the lead judgment that there is no iota of merit in this appeal and I too hereby dismiss same. I affirm the judgment of the High Court of Osun State, sitting in Iwo, delivered in Suit No HIW/26/2006 by Honorable Justice M. A. Adeigbe on the 8th of November, 2012. I abide by the order on costs in the lead judgment.
Appearances:
Chief Mrs C. J. Aremu, SAN For Appellant(s)
Peter Idowu, Esq. For Respondent(s)
