LABARAN FAGGE v. RAKIYA DALHA AMADU (2015)

LABARAN FAGGE v. RAKIYA DALHA AMADU

(2015)LCN/7921(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of June, 2015

CA/K/298/2009

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER THE ISSUES FOR DETERMINATION IN AN APPEAL MUST BE DISTILLED FROM THE GROUNDS OF APPEAL, THE EFFECT OF RAISING FRESH ISSUES AND THE ONLY WAY THE APPELLANT COULD HAVE COMPETENTLY RAISED THE SAID ISSUE

It is settled law that issues for determination in an appeal must be distilled from grounds of appeal, which in turn must be predicated upon the ratio decidendi of the decision of the Court appealed against – Archianga Vs Attorney General, Akwa Ibom State (2015) 6 NWLR (Pt.1454) 1 and Omoniyi Vs Alabi (2015) 6 NWLR (Pt 1456) 572. Any issue for determination or ground of appeal and which does not deal with matters directly challenging the decision of the lower Court is of no use in an appeal and it will irrelevant and be struck out- Shipcare Nigeria Limited, Owners of the “M/T African Hyacinth” Vs The Owners of the “M/V Fortunato” (2011) 7 NWLR (Pt 1246) 205, Ebute Vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt 1284) 254, Odusote Vs Odusote (2012) 3 NWLR (Pt 1288) 478, and Okechukwu Vs Independent National Electoral Commission (2014) 17 NWLR (Pt 1436) 255. The only way the Appellant could have competently raised the said issue for determination is if he had sought for and obtained the leave of this Court to do so. It must always be remembered that the jurisdiction of this Court is primarily to review by way of rehearing the decisions or decisions of the lower Court and that by reason of which this Court determines the disputes of parties and arrives at the conclusion in an appeal basically on the printed record of what transpired at the lower Court. Thus, neither of the parties is entitled to contest the judgment of a trail Court on issues not properly raised before the lower court and pronounced upon by that Court ? Netufo Vs Omoolorun (2005) 12 NWLR (Pt 938) 1, Loveday Vs Comptroller, Federal Prisons, Aba (2013) 18 NWLR (Pt 1386) 379. This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96 at 122 thus: “It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LAND LAW: DECLARATION OF OWNERSHIP TO LAND; WHETHER IN AN ACTION FOR DECLARATION OF OWNERSHIP TO LAND, A PARTY CLAIMING OWNERSHIP OF THE LAND MUST SUCCEED ON THE STRENGTH OF HIS CASE AND NOT ON THE WEAKNESS OF THE OTHER PARTY’S CASE

It is settled law that in an action for declaration of ownership to land, a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other parry – Lawal Vs Akande (2009) 2 NWLR (Pt.1126) 425, Chukwu Vs Amadi (2009) 3 NWLR (Pt.1127) 56, Usung Vs Nyong (2010) 2 NWLR (Pt.1177) 83, Oguniemila Vs Ajibade (2010) 11 NWLR (Pt.1206) 559. The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities – Kaiyaoja Vs Egunla (1974) 12 SC 55, Abaye Vs Ofili (1986) 1 NSILR (Pt.15) 134, Akintola Vs Solano (1986) 2 NWLR (Pt.24) 298, Eyo Vs Onuoha (2011) 11 NWLR (Pt.1257) 1, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217. This onus generally does not shift and must be discharged by clear, emphatic, satisfactory and cogent evidence -Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Kopek Construction Ltd Vs Ekisola (2010) 3 NWLR (Pt.1182) 618, Ali vs Salihu (2011) 1 NWLR (Pt.1228) 227, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt.1258) 375. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE; WHETHER THE ONUS IS ON THE CLAIMANT TO PROVE HIS TITLE BEFORE THE BURDEN SHIFTS TO THE DEFENDANT

Where a defendant does not counterclaim in an action for declaration of title, the onus is on the claimant to first establish a prima facie case before a consideration of the case of the defendant can arise – Aromire Vs Awoyemi (1972) 1 SC 1, Nwofor Vs Nwosu (1992) 9 NWLR (Pt. 264) 229, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt.1153) 587, Nwokidu Vs Okanu (2010) 3 NWLR (Pt.1181) 362, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. This is because in an action for declaration of title, the onus is on the claimant to prove his title and until this is done no burden shifts to the defendant who is putting forward a different title of his own. Once the claimant has failed to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him.

The law is that there is no burden on the defendant – Awomuti Vs Salami (1978) 3 SC 105, Olowosago Vs Adebanio (1988) 4 NWLR (Pt 88) 275, Sosan Vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546, Oyedeii Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175. However, once the claimant traces his root of title to one whose title to ownership has been established or where he establishes original title to the land, the onus shifts to the defendant to show that his own possession is of such a nature as to oust that of the original owner – Sanyaolu Vs Coker (1983) 1 SCNLR 161, Dosunmu Vs Joto (1987) 4 NWLR (Pt. 65) 297, Agbonifo Vs Aiwerioba (1988) 1 NWLR (Pt 70) 325, Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt.109) 352, Ashiru Vs Olukoya (2006) 11 NWLR (Pt.990) 1, Adedeji Vs Oloso (2007) 5 NWLR (Pt.1026) 133, Margi Vs Yusuf (2009) 17 NWLR (Pt.1169) 162. This point was explained by the Supreme Court in Ogbu Vs Wokoma (2005) 14 NWLR (Pt. 944) 118 where Akintan, JSC stated at pages 138-139 G-A that: “Thus, in the instant case, the plaintiff, having led evidence of how he came to own the land at 185, Ikwerre Road, tendered conveyances and other documents in proof of his title to the land; told the Court when he built the houses on the plot; called as witnesses the people who sold the plot to him; led evidence as to how he abandoned the property as a result of the civil war, told the Court how the property was released to him after the civil war by the Abandoned Property Authority; and how the defendant forcefully seized it from him, it is not enough for the defendant who was alleged to have forcefully seized the property from the plaintiff to merely limit his source of title to inheritance without more, particularly when there was evidence from members of his family that his claim of inheritance was incorrect. The burden of proof definitely shifted to him to provide more credible evidence in support of his defence.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LAND LAW: TITLE TO LAND; WHETHER WHEN A COMMON ORIGIN IS AGREED TO BY THE PARTIES IN A DISPUTE OVER LAND, THIS AFFECTS WHAT A CLAIMANT WHO SEEKS A DECLARATION OF TITLE NEEDS TO PROVE

It is settled that when a common origin is agreed to by the parties in a dispute over land, this affects what a claimant who seeks a declaration of title needs to prove; he only needs to prove a good title in him based on the original title and he does not have to prove the origin of his grantor’s title. The radical title is assumed to be valid by the agreement or concession of the parties upon the pleadings – Famuroti Vs Agbeke (1991) 5 NWLR (Pt.189) 1, Ekpechi Vs Owhonda (1998) 8 NWLR (Pt.543) 618, Nwadiogbu Vs Nnadozie (2001) 12 NWLR (Pt.727) 315, Ajibulu Vs Ajayi (2004) 11 NWLR (Pt 885) 458, Agbabiaka Vs Okojie (2004) 15 NWLR (Pt. 897) 503, Anukam Vs Anukam (2008) 5 NWLR (Pt 1081) 455. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LAND LAW: OWNERSHIP OF LAND; WHAT THE COURT MUST BE SATISFIED OF TO SUCCEED IN A CLAIM OF OWNERSHIP OF LAND

LAND LAW: TITLE TO LAND; MODES OF ACQUIRING TITLE TO LAND

It is trite that a grant is one of the recognized modes of acquiring title to land and where a party and pleads a grant as root of title, he is under a duty to prove such grant to the satisfaction of the Court and this includes tracing his root of title of a grant of the land in dispute to a person who has the capacity to make the grant – Odofin Vs Ayoola (1984) 11 SC 72 at 116, Oni Vs Olokun (1995) 1 NWLR (Pt 370) 189, Oyedeji Vs Akinyele (2002) 3 NWLR (Pt 755) 586, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LAND LAW: TITLE TO LAND; THE ONUS ON THE PARTY RELYING ON DERIVATIVE TITLE TO PLEAD AND PROVE HOW HE DERIVED HIS TITLE BUT ALSO THE TITLE OF THE PERSON FROM WHOM HE CLAIMEDS TO HAVE DERIVED TITLE

Now, it is a general principle in land litigation that where in a claim for ownership of land, the claimant relies on derivative title, he must not only plead and prove how he derived his title, but also the title of the person from whom he claims to have derived title. In other words, where a party bases his ownership of land on purchase from a particular person, family or community, that party must go further to plead and prove the origin of the title of that particular person or family or community from whom he purchased the land unless the title has been admitted by the other party – Inko-Tariah Vs Goodhead (1997) 4 NWLR (Pt 500) 453, Ugoji Vs Onukogu (2005) 16 NWLR (Pt 950) 97, Otanma Vs Youdubagha (2006) 2 NWLR (Pt 964) 337, Fatoyinbo Vs Osadeyi (2009) 16 NWLR (Pt 1168) 605, Nwofor Vs Obiefuna (2011) 1 NWLR (Pt 1227) 205. In Ngene Vs Igbo (2000) 4 NWLR Pt 651) 131, Iguh, JSC at 149 A-C explained the point thus: “It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how that person or family derived his or its title to such land. Accordingly, the plaintiff, to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet, meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such land particularly where as in the present case, the defendant did not concede ownership of the land by the plaintiff s grantors but expressly denied same.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LAND LAW: TITLE TO LAND; THE PRINCIPLE OF NEMO DAT QUOD NO HABET IN RELATION TO LAND CONVEYANACE

It is settled law that where a piece or parcel of land has been sold or granted to party, there cannot be a later sale or grant of the same piece or parcel of land to another party because as at the time of the later sale or grant, the vendor will have nothing in law to sell. Therefore, where two contesting parties trace their title in respect of the same piece of land to the same grantor, the later 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 title in respect of the piece of land in question by the first grant, would have nothing left to convey to a subsequent grantee under the principle of nemo dat quod non habet, as no one may convey what no longer belongs to him – Adelaja Vs Fanoiki (1990) 2 NWLR (Pt.131) 127, Anyaduba Vs Nigeria Renowned Trading Co (1992) 5 NWLR (Pt 243) 535, Tewogbade Vs Obadina (1994) 4 NWLR (Pt.388) 326, Dantsoho Vs Mohammed (2003) 6 NWLR (Pt 817) 457, Ibrahim Vs Mohammed (2003) 6 NWLR (Pt 817) 615, Ibrahim Vs Osunde (2009) 6 NWLR (Pt.1137) 382, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597. In Adeagbo Vs Williams (1998) 2 NWLR (Pt. 536) 120, Musdapher, JCA (as he then was) at page 128 E-F put the point thus: “Both parties claim to have bought the disputed land from the family. The learned trial Judge found as a fact that the respondent bought the land in 1975, while the appellant bought the land in December, 1976. It is clear to me that as at December, 1976, the Okota family had no vested right or any interest in the land to lawfully transfer it by sale or in any other manner to anybody. This means that the respondent has proved a better title than that of the appellant …” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LAND LAW: THE DEFENCE OF ACQUIESCENE; BURDEN OF PROVING THE DEFENCE OF ACQUISCENE

It is trite that where it is established by evidence that a party to a land suit had been in possession of the land in dispute for a considerable length of time and had been exercising acts of ownership thereon, such as farming and surveying same, to the knowledge of a party claiming adversely to the former, the conclusion that would be drawn by the Court is that the latter party has abdicated any claims or interests in the land or thereafter – Atunrase Vs Phillips (1996) 1 NSILR (Pt 427) 637. This plea is akin to raising the defence of acquiescence and the law is that to succeed, it was incumbent on the Appellant to establish that the Respondent or her agents had notice of what was being done, that she did nothing to prevent it, and that his position had been altered to his prejudice or detriment, or that he had been induced by the Respondent’s inaction to spend money – Adejumo Vs Olawaiye (1996) 1 NWLR (Pt.425) 436, Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592, Ogunko Vs Shelle (2004) 6 NWLR (pt 868) 17, Chukwuma Vs Ifeloye (2008) 18 NWLR (Pt 1118) 204. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LAND LAW: THE DEFENCE OF LACHES AND ACQUIESCENE; WHETHER THE DEFENCE OF LACHES AND ACQUISCENE WILL AVAIL THE APPELLANT WHERE HE HAS BEEN CONSISTENTLY CHALLENGED BY THE OTHER PARTY AS A TRESPASSER ON HIS LAND

It is the law that where a party consistently challenged the other party as a trespasser on his land, the party cannot be said to be guilty of acquiescence – Salako Vs Dosunmu (1997) 8 NWLR (Pt 517) 371, Ageh vs Tortya (2003) 6 NWLR (Pt 816)385, Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592, Adebo Vs Omisola (2005) 2 NWLR (pt 909) 149. Thus, where a trespasser ignored the warning of a land owner and goes ahead to build on the land, the trespasser cannot later raise the defence of acquiescence – Okpaloka Vs Umeh (1976) 9-10 SC 269, Ogundiani Vs Araba (1978) 6-7 SC 55, Nnaeme Vs Maduekwe (1987) 2 NWLR (Pt 54) 1. In Owie Vs Ighiwi (2005) 5 NWLR (Pt 917) 184 at page 224, Edozie, JSC stated thus: “Similarly, the defences of laches and acquiescence do not avail the appellant as there was evidence accepted by the trial Court that the appellant was duly warned when he commenced to dig the foundation for the erection of his building. This case underscores the need for any developer to satisfy himself with the validity of the title of the land on which he proposes to erect a building as the erection of a building on land based on defective title can lead to the disastrous consequence of the developer losing the building to the owner of the land on the principle expressed in the Latin maxim as quic quid plantatur solo solo cedit meaning whatever is affixed to the soil belongs to the soil. This is the unfortunate position in which the appellant has found himself.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: EVIDENCE UNCHALLENGED UNDER CROSS-EXAMINATION; WHETHER THE COURT IS ENTITLED TO ACT ON OR ACCEPT AN EVIDENCE UNCHALLENGED UNDER CROSS-EXAMINATION

The law is that where evidence is unchallenged under cross-examination, the Court is not only entitled to act on or accept such evidence, but it is in fact bound to do so, provided that such evidence by its very nature is not incredible. Thus, where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. See Oforlete v State (2000) 12 NWLR (Pt. 681) 415 at 436, Paras B-C per Achike JSC . Per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

LABARAN FAGGE – Appellant(s)

AND

RAKIYA DALHA AMADU – Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kano State High Court in Suit No K/37/2007 delivered by Honorable Justice Tani Yusuf Hassan on the 29th of June, 2009. The Respondent commenced the action in the lower Court against the Appellant and her claims were for:

i. An order declaring the Plaintiff as the rightful owner of the plot of land the subject of this suit as against the Defendant and any other person whosoever.

ii. An order declaring the action of the Defendant of erecting a structure on the said plot as tantamount to trespass and wrongful.

iii. An order of perpetual injunction restraining the Defendant or any person claiming through or under him from further trespassing upon the said plot of land.

iv. An order for special and general damages for trespass and unlawful occupation in the sum of N1 Million.

v. Costs of this action.

The case of the Respondent on the pleadings was that she was the rightful owner of the plot of land covered by a certificate of occupancy No LKN/RES/92/1069 and demarcated as Plot No 1116 on Plan No TP/UDB/172 in

the office of the Surveyor General of Kano State and that she inherited the plot of land from her late father, Dalha Amadu, who died on or about 1999 survived by herself, her mother and other siblings as the heirs to his Estate. It was her case that the plot of land, whose documents carry the name of her brother Muazu Dalha, was confirmed to be part of the properties left behind by her late father and that her late father came to own the plot of land when he was allocated same by the State Government by a letter of grant dated the 10th of August, 1993, written in the name of Muazu Dalha, as partial compensation for the acquisition of his farmland at Dorayi Babba from which the residential layout was carved out.

It was the case of the Respondent that upon the demise of her late father, the family went before the Upper Sharia Court in Yankaba for the sharing of his Estate and that the Court, amongst other properties, granted her the plot of land in dispute as part of her share of the Estate and a writ possession dated the 26th of May, 1999 was issued to her as evidence of her ownership of the land. It was her case that the plot of land was identified to her

by the officials of the Lands Ministry as the plot covered by the letter of grant and that when she went thereon she saw that the Appellant was erecting a structure thereon and that she informed the Appellant that she owned the plot of land that he should desist from constructing thereon and that the Appellant ignored her and continued the construction on the land.

The case of the Appellant in response was that he was the owner of the plot of land in dispute known at Plot No 1116 lying and situate in Dorayi Babba in Dala District and covered by Kano State Certificate of Occupancy No LKN/RES/91/7456 and that he acquired the plot of land by outright purchase in 2001 from one Mato who became possessed of same through the original allottee. It was his case that the Certificate of Occupancy No LKN/RES/91/7456 over the said Plot No 1116 was processed sometime in 1995 in the name of Ahmed Abdu, the original allottee of the said land who duly paid all the required fees due to the Government including the ground rents and that after the purchase of the land, he erected a two-bedroom bungalow thereon valued at N2.5 Million after obtaining necessary permits for the

fencing and development of the plot from the Kano State Environmental Planning and Protection Agency. It was his case that he had been in undisturbed and quiet possession of the land in dispute for over five years and that the Respondent was aware of the building he erected on the land in dispute since 2003 as her brother was around most of the time the building was being constructed up to the time it was fully developed and that the Respondent was thus estopped from denying his title over the plot of land as she stood-by while he developed the property.

The matter went to trial and in the course of which both parties called three witnesses each and tendered exhibits. At the conclusion of the hearing, the lower Court entered judgment and granted the claims of the Respondent. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 28th of July, 2009 against it and the notice of appeal contained six grounds of appeal. In arguing the appeal before this Court, the Counsel to the Appellant filed a brief of arguments dated the 14th of June, 2013 and this was sequel to an order of extension of time granted

to the Appellant on the 15th of May, 2013 to compile and transmit the records of proceeding from the lower Court to this Court. The Respondent reacted by filing a brief of arguments dated 6th of October, 2013 on the 4th of February, 2015 and the brief of arguments was deemed properly filed on the 17th of February, 2015. The Appellant filed a reply brief of arguments dated the 2nd of March, 2015. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions in the appeal.

Counsel to the Appellants formulated three issues for determination in the appeal and these were:

i. Whether Exhibit A, the letter of offer tendered by the Respondent as the basis of her title, can by itself confer title upon the Respondent without the Respondent meeting the conditions spelt therein.

ii. Whether the Respondent led evidence or credible evidence on her claims to be entitled to the reliefs claimed and granted by the lower Court in the circumstances of the case.

iii. Whether the lower Court was right to dabble into the issue of revocation of land when that is not

the issue before it.

Counsel to the Respondent adopted the three issues as formulated by Counsel to the Appellant, but argued that the first issue for determination was not raised by the Appellant before the lower Court either on the pleadings or in the testimonies of his witnesses and neither was it canvassed by his Counsel in the final written address and the lower Court did not pronounce on it. The first issue for determination was distilled from Ground Two of the notice of appeal and matters touching on it were also contained in the particulars of Grounds Three, Four and Five therein. It is correct that this issue for determination was not raised by the Appellant in his pleadings or in the evidence of his witnesses. This Court has scoured through the final written address of Counsel to the Appellant in the lower Court and the judgment of the lower Court and the issue was neither canvassed by the Counsel to the Appellant nor was it pronounced upon by the lower Court.

In other words, the first issue for determination and the grounds of appeal of the Appellants from which it was distilled were not predicated on the decision of the lower Court

appealed against. It is settled law that issues for determination in an appeal must be distilled from grounds of appeal, which in turn must be predicated upon the ratio decidendi of the decision of the Court appealed against – Archianga Vs Attorney General, Akwa Ibom State (2015) 6 NWLR (Pt.1454) 1 and Omoniyi Vs Alabi (2015) 6 NWLR (Pt 1456) 572. Any issue for determination or ground of appeal and which does not deal with matters directly challenging the decision of the lower Court is of no use in an appeal and it will irrelevant and be struck out- Shipcare Nigeria Limited, Owners of the “M/T African Hyacinth” Vs The Owners of the “M/V Fortunato” (2011) 7 NWLR (Pt 1246) 205, Ebute Vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt 1284) 254, Odusote Vs Odusote (2012) 3 NWLR (Pt 1288) 478, and Okechukwu Vs Independent National Electoral Commission (2014) 17 NWLR (Pt 1436) 255.

The only way the Appellant could have competently raised the said issue for determination is if he had sought for and obtained the leave of this Court to do so. It must always be remembered that the jurisdiction of this Court is primarily to review by way of rehearing the decisions or

decisions of the lower Court and that by reason of which this Court determines the disputes of parties and arrives at the conclusion in an appeal basically on the printed record of what transpired at the lower Court. Thus, neither of the parties is entitled to contest the judgment of a trail Court on issues not properly raised before the lower court and pronounced upon by that Court ? Netufo Vs Omoolorun (2005) 12 NWLR (Pt 938) 1, Loveday Vs Comptroller, Federal Prisons, Aba (2013) 18 NWLR (Pt 1386) 379. This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt.1420) 96 at 122 thus:

“It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”

The Appellant did not seek for and obtain the leave of this Court to raise the first issue formulated for determination. The issue is thus incompetent and is hereby struck out along with the arguments canvassed thereon in

his brief of arguments

Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt.1004) 1 and Abdullahi Vs Bani (2014) 17 NWLR (Pt 1435) 1.

In arguing the second issue for determination, Counsel to the Appellant reiterated the settled principle of law that ownership of land can be proved through (a) traditional history of ownership; (b) proof of acts of occupation and use of land without challenge (c) exclusive possession without permission; (d) production of title documents; (e) the probability raised under Section 45 of the Evidence Act; and he referred to the cases Adewuyi Vs Odukwe (2005) 7 SCNJ 227, Runsewe Vs Odutola (1996) 3 SCNJ 185 and Mogaji Vs Cadbury (Nig) Ltd (1989) 1 NWLR (Pt 96) 185. Counsel stated that the Respondent, in the instant case, relied on traditional history of ownership and a letter of grant tendered as Exhibit A, allegedly given to the Respondent’s father as compensation for his land, in proof of her claim of ownership of the land in dispute before the lower Court. Counsel traversed through the evidence led by the Respondent in proof of her case in the lower Court and stated that the Respondent did not lead

any credible evidence on the traditional history of original ownership of the land in dispute by het father before the purported acquisition and compensation there for by the Government by the grant of the land in dispute via Exhibit A and he referred to the cases of Uka Vs Irolo (2002) 7 SCNJ 137 and Eyo Vs Onuoha (2011) 39 WRN 1.

Counsel stated that Exhibit A did not fall from the skies and that before it can be accepted as evidence of compensation, the Respondent has the onus of proving her father’s original land, where it was cited and how it was acquired before Exhibit A was issued in exchange and he referred to the case of Ajiboye Vs Ishola (2006) 6 SCNJ 180, amongst others, on the onus of proof on a person claiming declaration of title to land. Counsel submitted further that he purchased the land in dispute in 2001 and proceeded to pay all the requisite fees to Government, on the strength of the certificate of occupancy given to him dated 24th of October, 1,995, Exhibit C, and that he developed the land and had been occupying same since 2003 and the Respondent took no steps with respect to the land in dispute and only woke up in 2006 to file the

present action. Counsel stated that the Respondent slept on her rights and that delay defeats equity and he referred to the case Okonkwo Vs Okonkwo (1998) 7 SCNJ 246.

On the third issue for determination, Counsel stated that nowhere in the pleadings filed by the parties was the issue of revocation of land raised and it was also not part of the Respondent’s claims but that the lower Court made so much heavy weather of the issue and cited many case law authorities thereon. Counsel stated that a Court has no right to ignore the pleadings of the parties and proceed to consider issues not pleaded by them and he relied on the case of Ademeso Vs Okoro (2005) 6 SCNJ 71 and said that the issue of revocation so raised beclouded the vision of the lower Court in this matter and led to a miscarriage of justice.

Counsel concluded by urging this Court to resolve the two issues for determination in favour of the Appellant and to allow the appeal and set aside the judgment of the lower Court.

In his response on the second issue for determination, Counsel to the Respondent stated that the submissions of the Counsel to the Appellant were unfounded as the

Respondent had vigorously put forward credible evidence in establishing the traditional title of her late father to the farm from which the land in dispute, Plot 1116, was created and that the case of the Respondent on the pleadings on the ownership of the farm by her late father and her evidence thereon were never challenged or contradicted and they are deemed admitted and he referred to the cases Ogbogu Vs Ugwegbu (2003) 4 SCNJ 79 and Bashiru Vs Dauda (2003) 6 SCNJ 219. Counsel stated that the witnesses of the Respondent were consistent and unequivocal in asserting in their unchallenged testimonies that the farmland of the late father of the Respondent was acquired and he was compensated with the grant of the land in dispute as compensation and that as such the Respondent proved her claim of ownership of the land in dispute both by traditional evidence and production of documents.

Counsel stated that, on the defence of laches and acquiescence sought to be raised by the Appellant, the lower Court was correct in finding that the defence was not available to the Appellant because there was evidence that the Respondent took action immediately she found the

Appellant on the land in dispute and that the Appellant failed to establish the requirements for the offence as laid down in the case of Okereke Vs Nwankwo (2003) 4 SCNJ 211. Counsel stated that the third plaintiff witness gave unchallenged evidence of how he confronted the Appellant as soon as the Appellant entered upon the land in dispute but that the Appellant ignored him and went on to develop the land and that this fact was admitted by the Appellant himself under cross-examination when he stated that he attended a meeting at the Ministry of Lands in response to the Respondent’s challenge to his trespass on the land in dispute.

On the third issue for determination, Counsel stated that the lower Court was right and on course when it meticulously considered and resolved the issue of revocation and that the issue was brought up surreptitiously and impliedly by the Counsel to the Appellant in his final address and was responded to by the Counsel to the Respondent in his written address. Counsel stated that in resolving the issue of revocation, the lower Court only performed its duty of resolving all issues raised by the parties before it and it was also

based on the understanding that the only way the Kano State Government could be justified in re-allocating the land in dispute after the initial allocation of same to the late father of the Respondent was the fact of revocation and the lower Court thus had the obligation to rule out the issue of revocation of the earlier grant. Counsel stated that neither party was prejudiced by the resolution of the matter as it was not the bedrock on which the success of the case of the Respondent was built and that as such it did cause a miscarriage of justice.

Counsel urged this Court to resolve the issues for determination against the Appellant and to dismiss the appeal as lacking in merit and to affirm the judgment of the lower Court.

In its deliberations on the cases presented by the parties, the lower Court in the judgment stated thus:

“The evidence of the plaintiff PW1 and of her witnesses PW2 and PW3 as to how she came about the plot of land in dispute and confrontation of PW3 to the defendant on the development of the land have not been challenged or controverted under cross-examination, but the defendant’s contention on the other hand is that he

acquired the land in dispute through purchase from one Alhaji Maito in the sum of N180,000.00 in the year 2001 and was given Certificate of Occupancy and receipt, Exhibits C and D1 – D7. The name on the Certificate of Occupancy is Ahmed Abdu and when he applied for building permit from KNURDA (KASEPA) he paid for the expenses in the names of Ahmed Abdu. The drawing plan and receipts are exhibits E and F1 – F4.

Under cross-examination the defendant who testified as DW1 said he was not aware that the land was compensation to the plaintiff. He said he got information of the plaintiff s claims in 2004 when a house is already built on the disputed land. The evidence of DW2, a Chief Technical Officer with the Ministry of Land and Physical Planning is that he is the one who directed the defendant to Alhaji Mato for the purchase of the land. DW2 said he witnessed the transaction and as a surveyor he showed the defendant the plot in dispute. He said he wrote the sale agreements Exhibits G and G2. He said Alhaja Maito bought a piece of land at Farm Center which was acquired by the Government and he was compensated with the land in dispute Plot 1116. Under

cross-examination DW2 confirmed that it is not the names of Alhaji Maito on the title document. The file in respect of Ahmed Abdu whose name is reflected in the Certificate of Occupancy Exhibit C was tendered through DW3 Nasiru Sani Civil Servant with the Ministry of Lands and Physical Planning. The file RES/91/7456 is Exhibit H. Exhibit A the letter of grant issued to Mu’azu Dalha is dated 10/8/93. In Exhibit H file No RES/91/7456 at page 6 is the letter of grant issued to Ahmed Abdu dated 27/4/95. Both letters of grant are in respect of the same plot No 1116 Dorayi Babba. The allocation to Mu’azu Dalha in Exhibit A was made earlier that the allocation to Ahmed Abdu in Exhibit H” (see pages 37 to 38 of the records)

The lower Court continued thus:

“It was the evidence of PW3 that when they went with the defendant to the Ministry of Lands, the land was confirmed to the plaintiff and they were told at the Lands Ministry that land granted as compensation cannot be revoked. There is no evidence led or tendered on the revocation of the land to the plaintiff before it was reallocated to Ahmed Abdu in 1995.

The Court of Appeal in the case of N.E.W. Ltd

Vs Denap Ltd … held that where there is a failure to serve notice of intention to revoke a right of occupancy personally on the holder before such notice is published in a gazette, it amounts to a substantial non compliance with the law which renders any such acquisition pursuant to such revocation a nullity …” (see page 38 of the records)

The plot of land in dispute in this case is a piece of land demarcated as Plot No 1116 on Plan No TP/UDB/172 in the office of the Surveyor General of Kano State. From the case of the parties on the pleadings and evidence led in the lower Court, the piece of land was very well known to them. The Respondent claimed ownership of the said piece of land in dispute. It is settled law that in an action for declaration of ownership to land, a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other parry – Lawal Vs Akande (2009) 2 NWLR (Pt.1126) 425, Chukwu Vs Amadi (2009) 3 NWLR (Pt.1127) 56, Usung Vs Nyong (2010) 2 NWLR

(Pt.1177) 83, Oguniemila Vs Ajibade (2010) 11 NWLR (Pt.1206) 559. The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities – Kaiyaoja Vs Egunla (1974) 12 SC 55, Abaye Vs Ofili (1986) 1 NSILR (Pt.15) 134, Akintola Vs Solano (1986) 2 NWLR (Pt.24) 298, Eyo Vs Onuoha (2011) 11 NWLR (Pt.1257) 1, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217. This onus generally does not shift and must be discharged by clear, emphatic, satisfactory and cogent evidence –

Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Kopek Construction Ltd Vs Ekisola (2010) 3 NWLR (Pt.1182) 618, Ali vs Salihu (2011) 1 NWLR (Pt.1228) 227, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt.1258) 375.

Vs Okanu (2010) 3 NWLR (Pt.1181) 362, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. This is because in an action for declaration of title, the onus is on the claimant to prove his title and until this is done no burden shifts to the defendant who is putting forward a different title of his own. Once the claimant has failed to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him.

(Pt. 65) 297, Agbonifo Vs Aiwerioba (1988) 1 NWLR (Pt 70) 325, Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt.109) 352, Ashiru Vs Olukoya (2006) 11 NWLR (Pt.990) 1, Adedeji Vs Oloso (2007) 5 NWLR (Pt.1026) 133, Margi Vs Yusuf (2009) 17 NWLR (Pt.1169) 162. This point was explained by the Supreme Court in Ogbu Vs Wokoma (2005) 14 NWLR (Pt. 944) 118 where Akintan, JSC stated at pages 138-139 G-A that:

“Thus, in the instant case, the plaintiff, having led evidence of how he came to own the land at 185, Ikwerre Road, tendered conveyances and other documents in proof of his title to the land; told the Court when he built the houses on the plot; called as witnesses the people who sold the plot to him; led evidence as to how he abandoned the property as a result of the civil war, told the Court how the property was released to him after the civil war by the Abandoned Property Authority; and how the defendant forcefully seized it from him, it is not enough for the defendant who was alleged to have forcefully seized the property from the plaintiff to merely limit his source of title to inheritance without more, particularly when there was evidence from members of his family

that his claim of inheritance was incorrect. The burden of proof definitely shifted to him to provide more credible evidence in support of his defence.”

In the instant case, it was agreed by the parties, both on their pleadings and on the evidence led that the land in dispute belonged to the Government of Kano State by acquisition. It is settled that when a common origin is agreed to by the parties in a dispute over land, this affects what a claimant who seeks a declaration of title needs to prove; he only needs to prove a good title in him based on the original title and he does not have to prove the origin of his grantor’s title. The radical title is assumed to be valid by the agreement or concession of the parties upon the pleadings – Famuroti Vs Agbeke (1991) 5 NWLR (Pt.189) 1, Ekpechi Vs Owhonda (1998) 8 NWLR (Pt.543) 618, Nwadiogbu Vs Nnadozie (2001) 12 NWLR (Pt.727) 315, Ajibulu Vs Ajayi (2004) 11 NWLR (Pt 885) 458, Agbabiaka Vs Okojie (2004) 15 NWLR (Pt. 897) 503, Anukam Vs Anukam (2008) 5 NWLR (Pt 1081) 455. The onus on the Respondent was thus to prove how the ownership of the land in dispute devolved on her from the Government of Kano State.

There was no onus on her to prove any traditional history of original ownership of farm land by her late father before same was acquired by the Government of Kano State as submitted by Counsel to the Appellant.

Further, it is trite that to succeed in a claim of ownership of land, the Court must be satisfied as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Ajiboye Vs Ishola (2006) 13 NWLR (Pt 998) 628, Nruama Vs Ebuzoeme (2006) 9 NWLR (Pt 985) 217. The case of the Respondent in the present case was that she inherited the land in dispute as part of her share of the Estate of her late father. Now, the law is that where a party bases his claim for declaration of title to land on inheritance, it is not enough for him to testify that he inherited the land in dispute from his father; he must also adduce evidence of how the father acquired the land – Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Daniel-Kalio Vs Daniel-Kalio (2005) 4 NWLR (Pt 915) 305,

Adebayo Vs Shogo (2005) 7 NWLR (Pt.925) 467, Mena Vs Aniafulu (2005) 13 NWLR (Pt 943) 668, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt.127) 194, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt 1153) 587.

It was the case of the Respondent on her pleadings that the land in dispute was granted to her father by the Government of Kano State as compensation for his farm land that was acquired. It is trite that a grant is one of the recognized modes of acquiring title to land and where a party and pleads a grant as root of title, he is under a duty to prove such grant to the satisfaction of the Court and this includes tracing his root of title of a grant of the land in dispute to a person who has the capacity to make the grant – Odofin Vs Ayoola (1984) 11 SC 72 at 116, Oni Vs Olokun (1995) 1 NWLR (Pt 370) 189, Oyedeji Vs Akinyele (2002) 3 NWLR (Pt 755) 586, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332. Where the defendant concedes that the person claimed by the claimant as the source of his title was in fact the owner of the land, then the claimant has no need to prove that the person had the capacity to make the grant – Awomuti Vs Salami (1978) 3 SC 105 at 115, Famuroti Vs

Agbeke (1991) 5 NWLR (Pt 189) 1, Aboyeji Vs Momoh (1994) 4 NWLR (Pt 341) 646, and Oni Vs Olokun (1995) 1 NWLR (Pt 370) 189.

The Respondent led evidence on the grant and she tendered a letter of grant dated the 10th of August, 1993 and issued in the name of Mu’azu Tsalha as evidencing the grant of the Plot No 1116 on Plan No TP/UDB/172, the land in dispute, to her father.

The letter was admitted as Exhibit A. The person referred to as Mu’azu Tsalha testified as the second plaintiff witness and he stated that he was the brother to the Respondent and that the land in dispute indeed belonged to their late father and that his late father only used his name to get the letter of grant and that the plot of land did not belong to him. It was not in contest between the parties at the trial that the letter of grant did convey the land in dispute to the father of the Respondent; the Appellant neither challenged the authenticity of the letter nor its efficacy in granting the land to the late father of the Respondent. The Appellant conceded that the Government of Kano State was the owner of the land in dispute, and thus there was no need for the Respondent to

prove the ownership of the land in dispute by the Government of Kano State. It is settled that where a party relies on a grant, proof of the grant is sufficient and a grantee of land or his successor-in-title need not exercise any act of ownership or possession to prove his ownership – Ohanaka Vs Achugwo (1998) 9 NWLR (Pt. 564) 37 and Bunyan Vs Akingboye (1999) 7 NWLR (Pt. 609) 31.

The Respondent thus led credible evidence to prove the grant of the land in dispute to her late father by the Government of Kano State.

It was also the case of the Respondent on the pleadings and in her evidence that upon the demise of her late father, the family went before the Upper Sharia Court in Yankaba for the sharing of his Estate and that the Court, amongst other properties, granted her the plot of land in dispute as part of her share of the Estate and a writ possession dated the 26th of May, 1999 was issued to her as evidence of her ownership of the land. The Respondent led evidence in support of the assertion in the testimony of the three plaintiff witnesses and she tendered the writ of possession as Exhibit B.

It must be stated that Exhibit B was written in

Hausa language and it was not accompanied with an English translation and the necessary effect of this is that it cannot be accorded any probative value – Ojengbede Vs Esan (2001) 18 NWLR (Pt.746) 271 Kankia Vs Maigemu (2002) 6 NWLR (Pt. 817) 496. This, however, did not derogate from the case of the Respondent on inheritance as neither her case on it in the pleading nor in the testimonies of the witnesses was contested or any way challenged by the Appellant. The lower Court was entitled to accept the unchallenged case of the Respondent on the point as true and correct – Odunsi Vs Bamgbala (1995) 1 NWLR (Pt.374) 641, Amayo Vs Erinwingbovo (2006) 11 NWLR (Pt 992) 699.

The finding of the lower Court that the Respondent led credible evidence to prove the devolution of the land in dispute to her from the Government of Kano State cannot be faulted. The onus shifted to the Appellant before the lower Court to show a better title to the land than the Respondent.

The case of the Appellant on the pleadings was that he acquired the plot of land by outright purchase in 2001 from one Mato who became possessed of same through the original allottee and the

Certificate of Occupancy No LKN/RES/91/7456 over the said Plot No 1116 was processed sometime in 1995 in the name of Ahmed Abdu, the original allottee of the said land who duly paid all the required fees due to the Government including the ground rents. The Appellant as the first defence witness testified in proof of the purchase of the land in dispute and he stated that he paid Alhaji Mato the sum of N180,000.00 for the land and that after the transaction Alhaji Mato gave him the title document to the land, Certificate of Occupancy No LKN/RES/91/7456 dated the 24th of October, 1995 which was in the name of Ahmed Abdu, tendered as Exhibit C. The second defence witness, one Yusuf Usman, also testified in proof of the purchase of the land in dispute by the Appellant from Alhaji Mato and he tendered the Hausa and English versions of a document which he said evidenced the purchase of the land as Exhibits G1 and G2.

to have derived title. In other words, where a party bases his ownership of land on purchase from a particular person, family or community, that party must go further to plead and prove the origin of the title of that particular person or family or community from whom he purchased the land unless the title has been admitted by the other party – Inko-Tariah Vs Goodhead (1997) 4 NWLR (Pt 500) 453, Ugoji Vs Onukogu (2005) 16 NWLR (Pt 950) 97, Otanma Vs Youdubagha (2006) 2 NWLR (Pt 964) 337, Fatoyinbo Vs Osadeyi (2009) 16 NWLR (Pt 1168) 605, Nwofor Vs Obiefuna (2011) 1 NWLR (Pt 1227) 205. In Ngene Vs Igbo (2000) 4 NWLR Pt 651) 131, Iguh, JSC at 149 A-C explained the point thus:

“It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how that person or family derived his or its title to such land. Accordingly, the plaintiff, to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet, meaning

that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such land particularly where as in the present case, the defendant did not concede ownership of the land by the plaintiff s grantors but expressly denied same.”

The Appellant thus had the onus to prove how Alhaji Mato from whom he said he purchased the land came to own the land. In an effort to discharge the onus, the Appellant led evidence through the second defence witness, one Yusuf Usman, that Alhaji Mato bought a piece of land at Farm Center which was acquired by the Government of Kano State and he was compensated with the land in dispute and that Alhaji Mato was not the original allottee of the land at Farm Center. Under cross-examination, the witness stated that when he checked the title document of the land, the name thereon was not Alhaji Mato’s name. The property file of the land in dispute in the custody of the Ministry of Land and Physical Planning Kano State was tendered as Exhibit H and all the documents in the file were in the name of Ahmed Abdu, including the letter of grant of the land issued

on the 27th of April, 1995, and the name of Alhaji Mato was not mentioned anywhere therein. It is obvious that the names,

Alhaji Mato and Ahmed Abdu, are not the same. Neither Alhaji Mato nor Ahmed Abdu testified for the Appellant to explain the relationship between the two names or between the persons bearing the names and no explanation on the different names was offered by the Appellant or by any of his witnesses.

The evidence of the second defence witness that Alhaji Mato derived title to the land in dispute through a grant made in his favour by the Government of Kano State as compensation for land acquired from him at Farm Center was not supported by the documentary evidence before the lower Court. The documentary evidence showed that the land in dispute, Plot No 1116 in Dorayi Babba, was granted to the late father of the Respondent by a letter of grant dated the 10th of August, 1993 in the name of Mu’azu Tsalha, Exhibit A” and also that the land was granted to one Ahmed Abdu by a letter dated the 27th of April, 1.995, part of Exhibit H. There is nothing showing that the land was ever granted to Alhaji Mato by the Government of Kano State. It

is elementary that where there is oral and documentary evidence, documentary evidence takes priority and should be used as the hanger from which to assess oral evidence – Fashanu Vs Adekoya (1974) 6 SC 83, Kimdey Vs Military Governor, Gongola State (1988) 2 NWLR (Pt.77) 445 and Jinadu Vs Esurombi-Aro (2009) 9 NWLR (Pt.1145) 55.

The Appellant did not lead any cogent evidence to proof the title of the person from whom he said he purchased the land in dispute. This is fatal to the case of the Appellant on the ownership of the land in dispute, notwithstanding the several acts of possession and ownership which he stated that he carried out on the said land. This is because no amount of use or the length of period of usage could confer ownership of land on such a user and it behooves such a party to prove his title in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of a land in dispute cannot precede title nor can it indicate same – Registered Trustees of the Apostolic Faith Mission Vs James (1987) 3 NWLR (Pt 61) 556, Nwaeseh Vs Nwaeseh (2000) 3 NWLR (Pt 649) 391, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332,

Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1. Thus, the acts of ownership and possession can only properly be considered where the root of title is pleaded and established by cogent and convincing evidence – Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt 1196) 307, Odunukure Vs Ofomata (2010) 18 NWLR (Pt 1225) 404,Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175, Ogunleye Vs Jaiyeoba (2011) 9 NWLR (Pt 1525) 339.

Going further and assuming that the letter of grant issued by the Government of Kano State in the name of Ahmed Abdu dated the 27th of April, 1995 was indeed the grant of the land in dispute made to Alhaji Mato, it still will not assist the case of the Appellant as his predecessor-in-title had no valid title to the land in dispute. There was unchallenged evidence before the lower Court that the Government of Kano State had made a prior grant of the land to the late father of the Respondent by a letter of grant dated the 10th of August, 1993, Exhibit A. There was no evidence before the lower Court that the earlier grant made to the late father of the Respondent was withdrawn, cancelled, nullified or revoked by the Government of Kano State or by anyone else

before the subsequent grant of the land was made to Ahmed Abdu in 1995.

NWLR (Pt 817) 615, Ibrahim Vs Osunde (2009) 6 NWLR (Pt.1137) 382, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597. In Adeagbo Vs Williams (1998) 2 NWLR (Pt. 536) 120, Musdapher, JCA (as he then was) at page 128 E-F put the point thus:

“Both parties claim to have bought the disputed land from the family. The learned trial Judge found as a fact that the respondent bought the land in 1975, while the appellant bought the land in December, 1976. It is clear to me that as at December, 1976, the Okota family had no vested right or any interest in the land to lawfully transfer it by sale or in any other manner to anybody. This means that the respondent has proved a better title than that of the appellant …”

Also, in Auta Vs Ibe (2003) 13 NWLR (Pt 837) 247, Iguh, JSC explained the Principle at page 272 A-E as follows:

“In this regard, the respondent’s customary right of occupancy in respect of the land in dispute, Exhibit F, was issued by the Jalingo Local Government on the 31st of October, 1981. Between 1981 and 1984, he commenced and completed the erection of a house thereon. On the other hand, the appellant’s customary rights of occupancy,

Exhibits A and B, were issued by the same Jalingo Local Government on the 5th January, 1982 and 20th February, 1985 respectively. It is clear from the above facts that even if exhibits A and B were to relate to the land in dispute, the respondent’s title must in law take priority over that of the appellant. Besides, it is settled law and in accordance with common sense that after a party has effectively divested himself of his interest in land or other res, no right naturally vests in him to deal with such land or res any further for nemo dat quod non habet, meaning that no one can give that which he does not have … Accordingly, the Jalingo Local Government having lawfully granted the piece or parcel of land in dispute to the respondent in 1981 was left with nothing to grant to the appellant subsequently in 1983 or 1985 during the subsistence of the respondent’s grant.”

The case of the Appellant was not helped in anyway by the fact that Ahmed Abdu proceeded to process and to obtain a Certificate of Occupancy over the land in dispute on the strength of his letter of grant while the late father of the Respondent did not do so. This is because where a

statutory right of occupancy is issued in favour of a person over a parcel of land when a valid right in the said land exists in another person and has not been revoked, the statutory right of occupancy becomes a worthless document because there cannot exist concurrently two title holders over one and the same piece of land, one must of necessity be invalid and the invalid one must be the later right granted without first revoking the former one – Ilona Vs Idakwo (2003) 11 NWLR (Pt 830) 53, CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530, Adole Vs Gwar (2008) 11 NWLR (Pt 1099) 562, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597, Edohoeket Vs Inyang (2010) 7 NWLR (Pt.1192) 25.

The Appellant thus failed to lead credible evidence to show a better title to the land in dispute than the Respondent and he could thus not oust the ownership of the land by the Respondent.

The Appellant did appeal to the doctrine of equity when he pleaded that he had been in undisturbed and quiet possession of the land in dispute for over five years and that the Respondent was aware of the building he erected on the land

in dispute since 2003 as her brother was around most of the time the building was being constructed up to the time it was fully developed and that the Respondent was thus estopped from denying his title over the plot of land as she stood-by while he developed the property. This plea was considered and dismissed by the lower Court in the judgment thus:

“The submission of Counsel to the defence that the plaintiff slept over her right for 9 years before she instituted this action. However the defendant himself purchased the land in 2001 and evidence of the plaintiff is that when the defendant started her development on the land, he was confronted to stop but he refused and continued with the development. Where a land becomes the subject of a dispute, the appropriate thing to do is to wait for the matter to be resolved before anything is carried out on the. The defendant therefore has himself to blame for his refusal to stop building on the land” (see page 41 of the records)

It is trite that where it is established by evidence that a party to a land suit had been in possession of the land in dispute for a considerable length of time and had been

exercising acts of ownership thereon, such as farming and surveying same, to the knowledge of a party claiming adversely to the former, the conclusion that would be drawn by the Court is that the latter party has abdicated any claims or interests in the land or thereafter – Atunrase Vs Phillips (1996) 1 NSILR (Pt 427) 637. This plea is akin to raising the defence of acquiescence and the law is that to succeed, it was incumbent on the Appellant to establish that the Respondent or her agents had notice of what was being done, that she did nothing to prevent it, and that his position had been altered to his prejudice or detriment, or that he had been induced by the Respondent’s inaction to spend money – Adejumo Vs Olawaiye (1996) 1 NWLR (Pt.425) 436, Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592, Ogunko Vs Shelle (2004) 6 NWLR (pt 868) 17, Chukwuma Vs Ifeloye (2008) 18 NWLR (Pt 1118) 204.

Reading through the evidence led by the parties before the lower Court, the Appellant did not lead any evidence to show that the Respondent and/or her agents had knowledge of his building on the land and did nothing to prevent him and/or that they encouraged him to build

on the land. The Respondent, on the other hand, led evidence through her brother, Isah Dalha, the third plaintiff witness, that he confronted the Appellant when the Appellant pulled down the demarcation they erected around the land in dispute and commenced building thereon and that he showed the Appellant the letter of grant and the writ of possession issued in favour of the Respondent, Exhibits A and B, and that he and the Appellant went to the Ministry of Land and Physical Planning, Kano State on the issue and whereat the authenticity of Exhibit A was confirmed to the Appellant and the Appellant was advised to stop building on the land. The witness stated that the Appellant said he would not stop the building because he had a certificate of occupancy. The Appellant admitted under cross-examination as the first defence witness that he attended a meeting at the Ministry of Lands at the instance of the Respondent.

385, Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592, Adebo Vs Omisola (2005) 2 NWLR (pt 909) 149. Thus, where a trespasser ignored the warning of a land owner and goes ahead to build on the land, the trespasser cannot later raise the defence of acquiescence – Okpaloka Vs Umeh (1976) 9-10 SC 269, Ogundiani Vs Araba (1978) 6-7 SC 55, Nnaeme Vs Maduekwe (1987) 2 NWLR (Pt 54) 1. In Owie Vs Ighiwi (2005) 5 NWLR (Pt 917) 184 at page 224, Edozie, JSC stated thus:

“Similarly, the defences of laches and acquiescence do not avail the appellant as there was evidence accepted by the trial Court that the appellant was duly warned when he commenced to dig the foundation for the erection of his building. This case underscores the need for any developer to satisfy himself with the validity of the title of the land on which he proposes to erect a building as the erection of a building on land based on defective title can lead to the disastrous consequence of the developer losing the building to the owner of the land on the principle expressed in the Latin maxim as quic quid plantatur solo solo cedit meaning whatever is affixed to the soil belongs to the soil. This is the

unfortunate position in which the appellant has found himself.”

The lower Court was correct when it held that the defence of acquiescence was not available to the Appellant on the facts of this case. The first issue for determination is resolved in favour of the Respondent.

On the second issue for determination, whether it was right for the lower Court to have “dabbled into the issue of revocation” when same was not raised by either party on the pleadings, it is correct that the issue of revocation was not directly raised on the pleadings by the party, but as it is evident from above deliberations of this Court in this appeal, a discussion of the issue of revocation of a right in land is a necessary incidence in a case where there has been multiple allocations of the same parcel of land by the Government to different persons. This is because in resolving which of the allocations will take priority, the question of whether the earlier allocation was revoked or nullified before the subsequent one was made must be answered by a trial Court. The lower Court did not thus exceed the limits of the respective cases of the parties in resolving the dispute

presented to it for determination in the instant case.

The Appellant has not presented this Court with any reason to tamper with the decision of the lower Court. In conclusion, therefore, this Court finds no merits in this appeal and it is hereby dismissed. The judgment of the Kano State High Court in Suit No K/37/2007 delivered by Honorable Justice Tani Yusuf Hassan on the 29th of June, 2009 is affirmed. The Respondent is awarded the costs of this appeal assessed at N50,000.00. These shall be the orders of this Court.

UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the lead judgment of my learned brother, Habeeb A.O. Abiru, JCA, just delivered.

My learned brother had admirably and painstakingly dealt with all the issues canvassed in this appeal. I agree totally with the reasoning and conclusions of my learned brother which I adopt as mine that the appeal lacks merit. I too dismiss this appeal and affirm the judgment of Hon. Justice Tani Yusuf Hassan (as he this was) delivered on the 29th June 2009.

I abide by the consequential orders as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.:

I have had a preview of the judgment just delivered by my learned brother Habeeb Adewale Olumuyiwa Abiru, JCA and am entirely in agreement with the conclusions reached. I however have a slight difference of opinion on the Notice of Preliminary Objection filed by the Respondent in respect of the Appellant’s first issue for determination. I have indicated in my judgment below that I find this notice incompetent and have struck it out. I subsequently proceeded to deliberate on the 1st and 2nd issues for determination filed by the Appellant, which issues l adopted.

This appeal is against the judgment of the Kano State High Court delivered on 26/6/09 by Hon. Justice Tani Hassan Yusuf.

The Respondent, as Plaintiff before the lower Court, sought, by her Statement of Claim, the following reliefs:

a. A declaration that the plaintiff is the rightful owner of the said plot of land subject matter of this suit as against the defendant and any other person whosoever be.

b. An order declaring the action of the defendant of erecting a structure on the said plot as tantamount to trespass and wrongful.

c. An order of perpetual

injunction restraining the defendant or any person claiming through or under him from further trespass on the said plot of land.

d. An order for special and general damages for trespass and unlawful occupation in the sum of One Million Naira

e. Cost of this action.

In proof of her claim, the Respondent testified and called her two older brothers as witnesses. It was her case that their father was the owner, by inheritance, of a farmland. The land was however acquired by the Government of Kano State around 1989 for the purpose of a residential layout. In partial compensation, he was given the land in dispute. PW2, Mu’azu Dalha, explained that the Letter of Grant was put in his name by their father. Following the death of their father, his property was distributed by the Area Court and the land in dispute given to the Respondent. They accused the Appellant of trespassing on the land, destroying the demarcation on the land and erecting a building on the land, in spite of challenges by them and the confirmation by the Ministry that the land was theirs.

In consequence, the present suit was instituted.

The Appellant, as Defendant before

the lower Court, in denial of the claim testified and called two witnesses from the Ministry of Lands and Physical Planning, Kano State. His case, supported by the evidence of DW2, Chief Technical Officer with the said Ministry, is that the Respondent, desiring to purchase land, approached DW2 who introduced him to Alhaji Mato, the owner of the land in dispute. The land was accordingly purchased and DW2 drew up an agreement to this effect, signing as a witness to the same.

Both parties tendered their documents of title.

While the Respondent tendered a Right of Occupancy, the Respondent produced a Certificate of Occupancy. Upon conclusion of evidence and the exchange of written addresses, the trial Judge, following a review of the evidence and the submissions of Counsel to the parties, held the Respondent’s claim of ownership proved and entered judgment in her favour.

Dissatisfied with this Judgment, the Defendant has appealed, by his Notice of Appeal filed on 28th July, 2009, raising five grounds. In compliance with the rules of Court, briefs of argument were filed by both parties. In the Appellant’s Brief of Argument filed on 14th June, 2013,

settled by Ishaku Haliru Esq, three issues for determination were raised, namely:

i. Whether Exhibit A, the letter of offer tendered by the Respondent as the basis of her title can by itself confer title upon the Respondent as the basis of her title can by itself confer title upon the Respondent without the Respondent meeting the conditions spelt therein.

ii. Whether the Plaintiff led any evidence or credible evidence on her claims to be entitled to the Reliefs claimed and granted.

iii. Whether the Court was right to dabble into the issue of “revocation” of land when that is not the issue before it.

The Respondent, in reaction to the appeal, filed, on 10th October 2013, a Notice of Preliminary Objection. He subsequently filed a Respondent’s Brief of Argument on 4th February 2015, deemed, by leave of the Court of 17th February 2015, as properly filed. The Brief, settled by N.A. Ayagi Esq, while raising no issues for determination, responded to the issues formulated by the Appellant. The Appellant filed a Reply Brief of Argument in response to the Respondent’s Preliminary Objection.

I shall however discountenance the Notice of

Preliminary Objection, for failure of the Respondent to argue the same before the hearing of the appeal. The method for raising a preliminary objection is now firmly settled. It may be raised in the Respondent’s brief, by a formal separate notice or written objection or both.

There is, however, the need for the Respondent or his counsel, with the leave of the Court, to move the objection prior to the hearing of the substantive appeal.

See Magit v University of Agriculture, Makurdi (2005) 19 NWLR (pt. 959) 211 per Ogbuagu JSC. Where this is not done, it renders the Notice of Preliminary Objection liable to be struck out.

The Notice of Preliminary Objection is accordingly struck out, the Respondent having failed to raise the same before the hearing of the appeal. All arguments canvassed in both Briefs of Arguments by respective Counsel in respect thereof, are accordingly discountenanced.

I shall adopt the 1st and 2nd issues for determination raised by the Appellant as the issues that arise for determination, as the 3rd issue formulated by the Appellant comes up for deliberation in the determination of Issue No. 2:

The 1st issue for

determination is:

Whether Exhibit A, the letter of offer tendered by the Respondent as the basis of her title can by itself confer title upon the Respondent without the Respondent meeting the conditions spelt therein.

Counsel has contended that Exhibit A, the Letter of Offer tendered by the Respondent as the basis of her title, cannot confer title upon her as there is no proof that the requirements in the letter were complied with by the Respondent and that she paid the required fees. In consequence, the offer had lapsed. He accused the Respondent of acquiescence and standing by

In his response, learned Counsel to the Respondent contended that the question of whether Exhibit A could confer title on the Respondent, having not met the conditions stated therein, cannot be raised on appeal as it was not an issue before the trial Court neither was it so pleaded.

Counsel to the Respondent contended further that there was no challenge or contradiction to the title of the Respondent’s father. It is thus deemed admitted.

The trial Judge, he said, rightly held that there was no acquiescence or standing by, as the Respondent took action as soon

as she found the Appellant on her land.

He cited the case of Okereke v Nwankwo (2003) 4 SCNJ 211.

The document of title relied upon by the Appellant, Exhibit A, is a Letter of Grant of a Right of Occupancy issued by the Directorate of the Ministry of Lands and Regional Planning Kano in the name of Mu’azu Tsalha and is dated 10/8/93.

Appellant’s Counsel has complained that there is no proof that the requirements in the letter were complied with by the Respondent and that she paid the required fees. He contends that the offer has therefore lapsed.

I note that a copy of this exhibit, along with others, is contained on Pages 125-126 of the Record Book. The 2nd page stated the various fees to be paid. It is also stated in Exhibit A that “This Letter of Grant must be returned within three months from the date above, duly completed with the required fees; otherwise the letter lapses.” However, as contended by the Respondent’s Counsel, the validity of this Letter was never contested by the Appellant in his Statement of Defence, nor were questions raised in the pleadings on whether payment had been effected by the Respondent.

The primary

function of pleadings is to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases. It is designed to bring the parties to an issue on which alone the Court will adjudicate between them. A party is bound by his pleading and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded. Neither party will be allowed to raise, at the trial of the suit, an issue which has not been pleaded. See Kyari v Alkali (2001) 11 NWLR (Pt. 724) 412 at 433-434, Para H-A, per Iguh JSC; Makwe v Nwukor (2001) 14 NWLR (Pt. 733) 356 at 383, Para A.C, per Eiiwunmi JSC.

In addition, neither the Respondent nor any of her witnesses were cross examined on the matter of payment for the grant or challenged on the authenticity of the Letter of Grant. The insistence of the Appellant throughout trial was the due purchase by him of the property and that his title, being a Certificate of Occupancy, as opposed to the Respondent’s Right of Occupancy, is superior to that of the Respondent.

The law is that where evidence is unchallenged under

cross-examination, the Court is not only entitled to act on or accept such evidence, but it is in fact bound to do so, provided that such evidence by its very nature is not incredible. Thus, where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. See Oforlete v State (2000) 12 NWLR (Pt. 681) 415 at 436, Paras B-C per Achike JSC .

Submissions in a written address cannot, I hold, be a substitute for facts which should have been pleaded or evidence before the Court. No amount of brilliance in a written address can make up for lack of evidence to prove and establish or disprove and demolish points in issue. See Sanyaolu v INEC (1999) 7 NWLR (Pt. 612) Page 600 CA at Page 611 Paras C-D per Olagunju JCA.

The consequence of the failure of the Appellant to plead or challenge the Respondent on the validity of the Right of Occupancy is that the Appellant cannot raise this contention, having not raised it as an issue in his pleadings. He is thus deemed to have accepted the validity of the Right of Occupancy. He can thus not be heard to challenge its authenticity.

In addition to all the foregoing and as pointed out by the Respondent’s Counsel, an issue which was not raised, argued and pronounced upon by a trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court. Such an issue or argument made is not competent. See Idufueko v Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima JSC.

The validity of Exhibit A, the Letter of Grant of Right of Occupancy can accordingly not be questioned on appeal.

Yet again, unless and until the Respondent’s Right of Occupancy is cancelled by the Governor, it remains valid, I hold.

Section 9(3) of the Land Use Act 1978 stipulates as follows:

lf the person in whose name a certificate of occupancy is issued, without lawful excuse, refuses or neglects to accept and pay for the certificate, the Governor may cancel the certificate and recover from such person any expenses incidental thereto, and in the case of a certificate evidencing a statutory right of occupancy to be granted under paragraph (a) of Subsection (1) of this Section, the Governor may revoke the statutory right of

occupancy.

Failure to pay the requisite fees is thus a matter between the Respondent and the Governor. It is for the Governor, based upon this lack of payment, to revoke the same, should he so decide. Unless and until this is done, the Appellant possesses all right on the property against all persons, save the Governor, who can revoke the Right for overriding public purposes in the manner stipulated under Section 28 of the Act.

Thus, unless the Right of Occupancy is revoked by the Governor, it remains valid.

For all the reasons given above, I resolve the first issue for determination against the Appellant and in favour of the Respondent.

The 2nd issue for determination is:

Whether the Appellant led any credible evidence on her claims, to entitle her to the reliefs sought and granted by the trial Court.

The Appellant submits that the Respondent has failed to prove ownership of the land by traditional history, not having shown how her father acquired the land. He cited the cases of Uka v Bello (2002) 7 SCNJ 137 and Eyo v Onuoha (2011) 39 WRN 1. In a claim for declaration of title to land, the onus, he said, is on the Plaintiff to

prove her case, relying on the strength of her case and not on the weakness of the defence. He cited in support Ajiboye v Ishola (2006) 6 SCNJ 227. He accused the Respondent of sleeping on her rights, only to wake up on 31st January, 2006 to file this suit. The Appellant, on the other hand, paid all the requisite fees to the government and was issued with a Certificate of Occupancy, which is superior to a Right of Occupancy. He has also developed the land and has been living in it since 2003.

The Respondent contends, however, that she put forward credible and uncontradicted evidence of her father’s ownership of the land in dispute. Denying that the Respondent stood by, her Counsel submits that the trial Judge was right to find that the Respondent took action as soon as she found the Appellant on her land. He also pointed to the meeting attended by the Appellant at the Ministry of Lands, at the instance of the Respondent and the insistence of the Appellant to continue constructing on the land.

As submitted by the Appellant’s Counsel, the 5 ways of proving title to land are the following:

i. By traditional evidence;

ii. By the production of

documents of title which are duly authenticated;

iii. By the act of selling, leasing, renting of all part of the land or farming on it or on a portion of it;

iv. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute; and

v. By acts of long possession and enjoyment of the land.

Any one of these ways is sufficient.

See the locus classicus, Idundun v Okumagba (1976) 10 NSCC Page 445 at Page 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC. See also Thompson v Arowolo (2003) 7 NWLR Part 818 Page 163; Onovo v Mba (2014) 14 NWLR Part 1427 Page 397 at 420-421 Para F-D per Ogunbiyi JSC.

In the instant case, even though the grant of the land in dispute to her father was consequent upon the acquisition of his farm land by the Government, the title of the Respondent, as contended in this case, I note, is not through the traditional ownership of the initial land by her father, but the grant of the land in dispute to him as compensation for the land acquired and which land was apportioned to her

following the death of her father. It was thus not necessary, I hold, to trace the genealogy of the traditional owners of the initial land, in view of the subsequent grant by the Government of alternative land. There was thus no requirement for the Appellant to trace her title beyond the grant by the Government to her father.

The question is thus whether the Appellant led any credible evidence on her claims, to entitle her to the reliefs sought and granted by the trial Court.

As aforesaid, testifying with the Respondent at the lower Court were PW2 and PW3, her brothers, who gave evidence of the grant of the Right of Occupancy to their father in replacement for his land acquired. It was explained by PW2, Mu’azu Tsalha that the Right of Occupancy was obtained by their father in his (PW2) name. They testified of the sharing of their father’s property by the Upper Area Court following his death and the apportionment of the land by the said Court to the Respondent. The Writ of Possession, dated 26/5/99, issued by the said Court was tendered as Exhibit B. Exhibit A, also tendered, as aforesaid, is a “Letter of Grant of a Right of Occupancy”, dated 10/8/93

given by the Directorate of Land and Regional Planning, Kano State.

I have, in the resolution of issue No. 1 pronounced on the validity of Exhibit A. The Appellant has also impugned Exhibit B, the Writ of Possession, on the ground that the document is in Hausa, with no English translation. While I agree that there is a portion of the document in Hausa, there are some portions in English which identify the document as a Writ of Possession. The Suit Number is given, together with the name of the deceased. The document also ordered that possession be given to the Respondent. The document emanated from the Upper Area Court Yankaba and was signed and stamped. It was clearly a document vesting property in the Respondent.

The Appellant has again submitted that Exhibit C, the Certificate of Occupancy relied upon by him, takes precedence over the Right of Occupancy of the Respondent. This Certificate of Occupancy is dated 24th October, 1995, in the name Ahmed Abdu. Various receipts and approved building plans were also tendered in the said name.

Also relied upon by the Appellant is a document of sale, Exhibit G1, and its English Translation as Exhibit G2.

Exhibit G2 is headed “Evidence of Sale and Purchase of Plot”, dated 22/11/2001 in which it was stated that the land was sold by “Alhaji Mato to Mallam Labaran Ammani. Exhibit H is an “Application for Statutory Right of Occupancy” by Ahmed Abdu.

The trial Judge, in his Judgment, in resolving whether the Respondent had produced credible evidence in proof of ownership of the land, found that both letters of grant are in respect of the same plot of land, but that the allocation to the Respondent was earlier in time than that of the Appellant. He referred to the evidence of PW3 that when both parties went to the Ministry of Lands, it was confirmed to the Appellant that the land was granted as compensation and cannot be revoked. He held that where there is failure to serve notice of intention to revoke a right of occupancy personally on the holder, it renders any acquisition of the land a nullity. The revocation for public interest, he held, does not allow for revocation only to vest the same in another person. There being no evidence that the subsequent allocation to the Appellant was for overriding public purpose and there having been non compliance with the

law, prior to the reallocation to the Appellant, the Court would intervene against the Appellant. He held further that the evidence of the Appellant and her witnesses was consistent and believed by him. He rejected the contention of the Appellant’s Counsel that the possession of a Certificate of Occupancy is superior to the grant to the Respondent, as a Certificate of Occupancy, when successfully challenged, can be nullified. He rejected the submission that the Respondent slept over her rights for nine years before she instituted the action, pointing out that the Appellant, by the evidence of the parties only purchased the property in 2001 and that the evidence is that the Appellant was challenged when he started construction but refused to stop.

He held, from the totality of the evidence, that the Respondent’s claim to ownership was proved and granted the following reliefs:

1. That the Plaintiff is the rightful owner of Plot 1116 situate at Dorayi Babba Kano.

2. The Defendant is hereby restrained from erecting any structure on the said plot.

3. The Defendant is also restrained from trespassing on the said land No.1116

4. The Defendant

shall pay the Plaintiff N20,000 damages and the sum of N420.00 being the cost of filing this action.

In determining whether the lower Court was in error in so deciding, it is necessary to consider the status of a Right of Occupancy as against a Certificate of Occupancy and the consequences, if any, of the issue of the latter when there is a prior existing Right of Occupancy. I reproduce salient portions of the Land Use Act 1978,which is the Act that regulates title to land in Nigeria.

LAND USE ACT 1978

SECTION 8

Statutory right of occupancy granted under the provisions of Section 5 (1) (o) of this Act shall be for a definite term and may be granted subject to the terms of any contract which may be made by the Governor and the holder not being inconsistent with the provisions of this Act.

SECTION 9

[CERTIFICATES OF OCCUPANCY]

1. it shall be lawful for the Governor-

a. when granting a statutory right of occupancy to any person; or

b. when any person is in occupation of land under a customary right of occupancy and applies in the prescribed manner; or

c. when any person is entitled to a statutory right of

occupancy, to issue a Certificate under his hand in evidence of such right of occupancy.

2. Such certificate shall be termed a certificate of occupancy and there shall be paid therefore, by the person in whose name it is issued, such fee (if any) as may be prescribed.

3. If the person in whose name a certificate of occupancy is issued without lawful excuse refuses or neglects to accept and pay for the certificate, the Governor may cancel the certificate and recover from such person any expenses incidental thereto and in the case of a certificate evidencing a statutory right of occupancy to be granted under Paragraph (a) of Sub-section (1) of this Section, the Governor may revoke the statutory right of occupancy.

4. The terms and conditions of a certificate of occupancy granted under this Act and which has been accepted by the holder shall be enforceable against the holder and his successors in title, notwithstanding that the acceptance of such terms and conditions is not evidenced by the signature of the holder or is evidenced by the signature only or, in the case of a corporation, is evidenced by the signature only of some person purporting to

accept on behalf of the corporation.

SECTION 14

[EXCLUSIVE RIGHTS OF OCCUPIERS.]

Subject to the other provisions of this Act and of any lows relating to way leaves, to prospecting for minerals or mineral oils or to mining or to oil pipelines and subject to the terms and conditions of any contract made under Section 8 of this Act, the occupier shall have exclusive rights to the land the subject of the statutory right of occupancy against all persons other than the Governor.

SECTION 15

[THE RIGHT TO IMPROVEMENTS.]

During the term of a statutory right of occupancy the holder-

a. shall have the sole right to and absolute possession of all the improvements on the land:

b. may subject to the prior consent of the Governor, transfer, assign or mortgage any improvements on the land which have been effected pursuant to the terms and conditions of the certificate of occupancy relating to the land.

SECTION 28

[POWER OF GOVERNOR TO REVOKE RIGHTS OF OCCUPANCY.]

1. It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.

2. Overriding public interest in the case of a

statutory right of occupancy means-

a. the alienation by the occupier by assignment mortgage, transfer of possession sub-lease, or otherwise of any right of occupancy or port thereof contrary to the provisions of this Act or of any regulations made thereunder:

b. the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation:

c. the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith. Underlining Mine

From the foregoing Sections, it is clear that it is the prerogative of the Governor to issue a Certificate of Occupancy in respect of a land held under a Right of Occupancy. A Certificate of Occupancy, is therefore a higher title in respect of the same land, and is given when the holder has paid all necessary fees and complied with the conditions stated in the Right of Occupancy. The absence of a Certificate does not however render invalid or ineffectual a Right of Occupancy, as the holder of a Right of

Occupancy, by Section 15 Supra, has absolute possession of the land and may, with the consent of the Governor, transfer, assign or mortgage his interest in the land.

By Section 9 (3) above, the Governor may, where the holder of such Right refuses or neglects to accept and pay for such certificate, revoke the Statutory Right of Occupancy. It follows from the foregoing that unless and until such Right of Occupancy is revoked, the holder has an unimpeachable title. Without the revocation of this Right, the same land cannot, I hold, be assigned to another. The Certificate of Occupancy issued subsequently to Ahmed Abdu over the same land, without a prior revocation of the earlier Right of Occupancy, is therefore invalid.

The trial Judge was therefore right to have held that a Certificate of Occupancy, though prima facie evidence of title to land, can be successfully challenged and nullified.

It was held by the Supreme Court in Ilona v Idakwo (2003) 11 NWLR (Pt.830) Page 53 at Page 84 Paras E-G per Edozie JSC, that a Certificate of Occupancy is prima facie evidence of title but will give way to a better title.

As also held in Olohunde v

Adeyoju (2000) 10 NWLR (Pt. 676) Page 562 at Page 587 Paras C-D per Iguh JSC a Certificate of Occupancy is not conclusive evidence of a right or valid title to the land. It is at best only prima facie evidence of such right and may in appropriate cases be effectively challenged and rendered invalid and null and void.

The trial Judge was thus on sound legal footing when he held that the Right of Occupancy issued to the Respondent in 1993, being first in time, takes precedence over the Certificate of Occupancy issued to the Appellant in 1995 in the absence of any revocation of the Respondent’s prior Right. He was accordingly correct to hold that the Certificate of Occupancy issued to Ahmed Abdu, in view of the Respondent’s prior Right of Occupancy, rendered the subsequent allocation to the Appellant, a nullity.

The Appellant has accused the trial Judge of making heavy weather of the failure of the State Government to validly revoke the Respondent’s title before issuing title to the Appellant, when the issue of revocation was never pleaded by the parties or raised as an issue before the Court. The Court, by so doing, he said, was setting up a case for

the parties and dabbling into facts not before it. To this, the Respondent’s Counsel has submitted that the whole defence of the Appellant, even though not stated, is that his title came into being after the purported revocation of the Respondent’s prior title. The Judge was thus doing justice to all the issues raised before him as it was only a proper revocation that can vest title in the Appellant. In any event, no party was prejudiced because it was not the bedrock upon which the success of the Respondent’s case was built but that of the prior existing title of the Respondent.

I find that it was impossible for the lower Court to adjudicate on the issue in question without adverting his mind to the propriety of the subsequent allocation of the land to the Appellant without a prior revocation of the Respondent’s rights.

I am in agreement with the Respondent’s Counsel that in deciding the legality of the subsequent title of the Appellant, it was necessary for the trial Judge to have taken into consideration whether there was a prior revocation of the Respondent’s title, as it is only in this latter event that the subsequent issue of the Certificate

of Occupancy can be held to be valid. There was thus no miscarriage of justice occasioned by the lower Court, I hold.

Further to the above, I find it curious that the Certificate of Occupancy relied upon by the Appellant is neither in his name nor in the name of his vendor, Alhaji Mato but is in the name of Ahmed Abdu. No evidence has been given of the nexus between the Appellant and Ahmed Abdu. The document of title relied upon by the Appellant can thus not be considered to be duly authenticated as required in the case of Idundun v Okumagba Supra. On the contrary, the Respondent has successfully authenticated the title to her.

It has again been contended by the Appellant that the Respondent slept over her rights and was guilty of laches and aquiescence. To this the Respondent’s Counsel has submitted that the title of the Appellant, by the Deed of Sale, was only in 2001 and that, by the evidence of the parties, the Appellant was challenged and even invited to the Ministry, yet persisted in his construction on the land.

The trial Judge, in his Judgment held:

“The submission of counsel to the defence is that the plaintiff slept over her

right for 9 years before she instituted this action. However the defendant himself purchased the land in 2001 and evidence of the plaintiff is that when the defendant started development on the land, he was confronted to stop but he refused and continued with the development. Where land becomes the subject of dispute, the appropriate thing to do is to wait for the matter to be resolved before anything is carried out. The defendant therefore has himself to blame for his refusal to stop building on the land.”

I am in agreement with the lower Court’s reasoning.

In addition, the document of purchase from Alhaji Mato to the Appellant, Exhibit B, I note, is dated 22/11/2001. By the evidence of PW3, when the Appellant trespassed onto the land, they challenged him and showed him the documents of title of the Respondent and that they went, at the instance of the Appellant to the Ministry of Lands and Physical Planning, where it was confirmed to the Appellant that the land was given to their father in compensation for the former one acquired and that the title could not be revoked. The Appellant however refused to stop his construction, on the ground that he

has a certificate over the land.

Under cross examination, PW3, maintained this stance. The Appellant, under cross examination denied that he was present during the discussion at the Ministry of Lands. He however recanted and stated:

“I was aware that the plot in dispute is o compensation to the Plaintiffs. The meeting at lands took place in 2004 and I had already built the house then. I got information about the plaintiffs claim from her brother in the year 2004.”

The law is that the acquiescence which will deprive a man of his legal right must amount to fraud. A high degree of acquiescence is required to obliterate the original owner’s reversionary right in favour of an occupier. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. See Okereke v Nwankwo (2003) 9 NWLR (Pt. 826) Page 592 at Page 677-678 Paras H-A, page 623 paras C-D per Edozie JSC.

Laches is not delay alone; the owner must see him and encourage him- Akanni v Makanju (1978) 11 NSCC Page 526 at Page 533-534 Lines 5-35 per Obaseki JSC.

In the instant case, it has not been shown that the

Respondent encouraged the Appellant’s act of trespass but, as believed by the trial Judge, the Appellant, in spite of all warnings to him persisted in his act of trespass and construction on the land. The trial Judge, I accordingly hold, was correct in holding that this defence is not available to the Appellant. I again resolve the 2nd issue for determination against the Appellant.

The law is that an appellate Court will be slow to disturb or reverse findings of fact made by the trial Court unless such findings are shown to be perverse having been based on inadmissible evidence, or relevant and admissible evidence having been rejected, which in either case occasioned a miscarriage of justice or that its findings were perverse. See Awodi v Ajagbe (2015) 3 NWLR Part 1447 Page 578 at 599 Para F-H per Okoro JSC.

The findings of the trial Judge have not been shown to be perverse or based on inadmissible evidence, neither has relevant and admissible evidence been rejected.

Where a trial Court has carried its assignment satisfactorily, an appeal Court shall be left with no option but to affirm such a decision. To do otherwise will institutionalize what

the appellate is complaining of, that is miscarriage of justice – Sule Anyegwu v Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 Para F-G per I.T, Muhammad JSC.

The trial Judge, I hold, has carried out his assignment satisfactorily. His findings have not been shown to be perverse or based on inadmissible evidence.

Having resolved both issues for determination against the Appellant, I am in agreement with the lead judgment of my learned brother that this appeal lacks merit. I also dismiss the appeal and affirm the judgment of the Lower Court. I abide by the order of costs awarded.

Appearances:

A. B. KurahFor Appellant(s)

N. A. Ayagi with A. Y. BinaliFor Respondent(s)

Appearances

A. B. KurahFor Appellant

AND

N. A. Ayagi with A. Y. BinaliFor Respondent