MR. GABRIEL ORIGBO & ANOR V. WINIFRED USAKA (2013)

MR. GABRIEL ORIGBO & ANOR V. WINIFRED USAKA

(2013)LCN/6358(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of June, 2013

CA/MK/39/2011

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria

MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria

Between

1. MR. GABRIEL ORIGBO
2. MRS. MAUREEN ORIGBO Appellant(s)

AND

WINIFRED USAKA Respondent(s)

RATIO

THE POWER OF THE GOVERNOR OF A STATE TO REVOKE A RIGHT OF OCCUPANCY

Now Section 28 of the Land Use Act provides in detail, the power of the Governor of the State to revoke a Right of Occupancy, the procedure for such revocation and the grounds that will so justify the revocation.
Section 28 of the Land Use Act reads:-
(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 s statutory right of occupancy means: –
(a) the alienation by the occupier by assignment, mortgage, transfer of possession, sublease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulation 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 therein.
(3) overriding public interest in the case of customary right of occupancy means:
(a) 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;
(b) the requirement of the land for mining purpose or oil pipeline or for any purpose connected therewith.
(c) the requirement of the land for the extraction of building materials,
(d) the alienation by the occupier by sole, assignment, mortgage, transfer of possession, sublease, bequest or otherwise of the right of occupancy
(4) the Governor shall revoke a right of occupancy in the event of the issue of notice or by or on behalf of the president if such notice declares such land to be required by the Government for public purposes
(5) the Governor may revoke a statutory right of occupancy on the grounds of:
(a) a breach of any of the provisions which a certificate of occupancy is by section 10 of this Act deemed to contain;
(b) a breach of any term contained in the certificate of occupancy or in any special contract made under section 8 of this Act;
(c) a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under subsection (3) of section 9 of this Act.
(6) this revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the Governor and notice thereof shall be given to the holder,
(7) the title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection (6) of this section or on such later dote as may be stated in the notice.
Section 44 which deals with service of Notice of such revocation therein reads
Any notice required by this Act to be served on any person shall be effectively served on him:-
(a) By delivering it to the person on whom it is to be served; or
(b) By leaving it at the usual or last known place of abode of that person; or
(c) By sending it to a prepaid registered letter addressed to that person at his usual or last known place of abode; or
(d) In the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered of principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office; or
(e) If it not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served, by addressing it to him by the description of “holder” or “occupier of the premises (naming them) to which it relates, and by delivering it to some person on the premises or’ if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.

Furthermore, the Governor of a State by virtue of Section 5 (1) of the Land Use Act 1978 has the overall power to grant statutory Rights of Occupancy over any land whether or not in an urban area. But such power shall not be exercised to deny a prior holder of h is title held before the coming into force of the Land Use Act. Such a prior holder is a deemed holder of a statutory or customary Rights of Occupancy if the land is situated in an urban or non urban area respectively. See AGUNDO V. GBEBO (1999) NWLR (PT. 617) 71. PER OSEJI, J.C.A.

WHETHER OR NOT A CERTIFICATE OF OCCUPANCY IS EVIDENCE OF TITLE TO LAND

Thus, a Certificate of Occupancy is only prima facie evidence of title to land or exclusive possession of land. As a result, if it is successfully challenged it can be nullified. In other words, where there is proper evidence to show that the Certificate was wrongly obtained such as where an existing Right of Occupancy or deemed holder of right of occupancy was not first revoked and due notice to that effect given to the existing title holder, a Certificate of Occupancy issued in defiance of Section 28 and 44 of the land use Act will be declared a nullity upon application to that effect. ILONA V. IDAKWO (2003) 17 NWLR (PT. 830) 59, MACAULAY V. OMIYALE (1997) 4 NWLR (PT. 497) 94.

SAMUEL C. OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Benue State sitting in Makurdi and delivered by Hon. Justice T.A. Igoche on 02 – 07 -2010.
The Plaintiff (now Respondent) had in the lower Court claimed as per the writ of summons filed on 17-7 -2007 and paragraph 26 of the amended statement of claim filed on 29 -10 -2008 against the Defendants (now Appellants) jointly and severally as follows:
1. A declaration that the Plaintiff is entitled to the portion or parcel of land lying and situate at Makurdi, Benue State covered by Certificate of occupancy No. BNA 7807 and bounded by beacon Nos. MKC 2042, MKC 2043, MKC 2048 and MKC 2049 covering a total area of 0.143 hectares on Makurdi TPD 03 at Logo II close to Owner Occupier Quarters along Abu King Shuluwa Road: Makurdi.
2. An order of perpetual injunction restraining the Defendants, privies, relations from trespassing or laying claim to the said plot No. BNA 7807,
3. An order of perpetual injunction restraining the Defendants from further intimidating, harassing and threatening the Plaintiff.
4. Five million (N5, 000,000.00) naira damages.
The two Defendants (hereinafter called “the Appellants”) reacted by filing a joint statement of defence and counter claim for the same piece of land. The Respondent also filed a reply and defence to counter claim.
In their counter claim the two Appellants sought the following reliefs:-
i. A declaration that the counter claimants are the owners of the land and the people entitled to the grant of a statutory Right of Occupancy,
ii. An order setting aside the Certificate of Occupancy No. BNA 7807 granted to the Plaintiff as having been given in error
iii. An order of perpetual injunction against Plaintiff/Defendant restraining her, agents, privies from trespassing or otherwise disturbing the counter claimants’ peaceful enjoyment of their plot of land
iv. Three million (N3,000,000.00) naira in general damages
A summary of the facts as presented by the Respondent as Plaintiff in the lower Court is that she applied for and was allocated a plot of land in 1993 by the Benue State Ministry of lands and survey, through the Land Use and Allocation Committee. The said land covered a total area of 0.143 hectares. She was taken to and shown the land by a staff of the ministry and at the land she met the villagers who were living there and they took her to the village head by name Torgenga called his son Tyav and told him her mission and that the particular plot of land has been allocated to Respondent by the State Government. She subsequently took possession and had the land surveyed and beacon placed thereon by a staff of the ministry of lands and survey by name Mr. Orube. In 1995 she applied for and was granted a Right of Occupancy. She also built corners and one room structure on the land as well as farmed cassava on it. Sometimes in 2003 she visited the land and found that the Appellants had trespassed on it, removed her beacons and even planted mango and orange trees thereon. She wrote a letter of complaint to the Ministry and a committee was set up to look into the dispute between her and the Appellant and the committee found in her favour but the Appellant refused to give in. For the Appellants, the land belongs to them because they bought it from the customary owners of the land through one Tyav Torgenga in the year 2000 and an agreement to that effect was executed.
At the conclusion of hearing at the lower Court counsel for both parties filed and exchanged written address which they eventually adopted on 17 – 05 – 2010. In its judgment delivered on 02 – 07 -2010 the lower Court found in favour of the Respondent and dismissed the Appellants’ counter claim.
Being aggrieved and dissatisfied with the said judgment the Appellants filed a Notice of Appeal dated10 – 08 – 2010 and filed on 30 – 08 – 2010. The said Notice of Appeal contains 6 grounds of appeal which reads as follows:-
1. The judgment of the learned trial judge is against the weight of evidence
2. The learned trial judge erred in law when he held that:
“…Relating to this issue is the issue raised by the Plaintiff’s counsel i.e., whether or not the land in dispute covered by Certificate of Occupancy No, BNA 7807 was allocated to the Plaintiff in accordance with the provisions of the law and due process. In answering this question, counsel referred the Court to pages 1 – 15, 15 – 29, 40 – 45 and 58 of Exhibit 1. I have looked at the pages and have observed earlier in this judgment that process followed for the issuance of the title documents, I have no reason to doubt that due process was followed. There is no contrary evidence from the defence. I therefore hold that the allocation to the Plaintiff was in accordance with the provisions of the law and due process”
This occasioned a grave miscarriage of justice.
PARTICULARS OF ERROR
a) The Respondent claimed title to the piece of land through allocation by the Benue State Government while the Appellants claimed title from DW1, a customary title holder.
b) The Respondent did not plead and prove that the Benue State Government owned the land nor the Government revoked, acquired and allocated the land to the Respondent.
c) The Respondent admitted that when she was allocated the plot she went and met the villagers including DW1’s father and there was a farm on the plot confirming that there was a deemed statutory title holder already in existence at the time of allocation.
d) It was not pleaded and proved that apart from the Benue State Government demarcating the lands into plots, the government had revoked and given notice or revocation to these villagers including Appellants predecessor-in-title, DW1
e) There was no evidence before the Court that this land was acquired and if so acquired, it was for public purpose.
3. The learned trial judge erred in law when he held that the Respondent proved her claim by production of title documents relying on the case of Idundun v. Okumagba that respondent proved her case in one of the five was recognized under the law when there was overwhelming evidence to the contrary that the appellants acquired title from a deemed customary title holder, the DW1.
PARTICULARS OF ERROR
a) The Respondent claimed that she was allocated the land by the Benue State Government and issued Exhibit 1, the Certificate of Occupancy.
b) The appellant’s case was that they acquired the land by purchase wherein an agreement was executed between them and the DW1, the deemed statutory holder.
c) The grant of Exhibit 1 did not extinguish the right of DW1 in so far as there was no valid acquisition and revocation of DW1’s title.
4. The learned trial judge misdirected himself in law when he held that:
“…It is in evidence through PW3 and Exhibit 1 that the area of (sic) was laid out as far back as 1990s. See PW3’s evidence under cross-examination and pages 5 and 19 of Exhibit 1 and it is within Makurdi Urban. There is no pleading challenging the power of the Governor to grant the land in question. I am therefore satisfied that the Plaintiff has proved her case to entitle her to the reliefs sought.
This occasioned a grave miscarriage of justice.
PARTICULARS OF MISDIRECTION
a) Land acquired for planning purpose does not automatically divest existing customary title holders of their land as they are considered deemed title holders under the law
b) It is only after land is acquired by the government and revoked and notices of revocation duly issued that the Governor can validly allocate such land but then the revocation must be for over-riding public interest and not to allocate the land to individuals
c) In the instant case, none of the above was proved and the mere allocation to the respondent did not confer on her valid title.
The learned trial judge erred in law in dismissing appellants’ counter claim on the ground that since the area was created into a layout in the 1990’s, the DW1 could not have title to the land in 2000 as to pass same to the appellants. This occasioned a grave miscarriage of justice.
PARTICULARS OF ERROR
a) There was no evidence before the Court that upon the creation of a layout, the DW1’s land was acquired and his interest thereto revoked and DW1 or any other villager served with the notice of revocation as required by the law.
b) The mere fact of creation of layout did not extinguish the deemed statutory right of DW1
c) The DW1 therefore validly passed title over the land to the appellants
6 The learned trial judge erred in law when he rejected in evidence the agreement of purchase of the land by appellants with DW1 holding that the agreement was a registrable instrument and since it was not registered it was inadmissible. This occasioned a grave miscarriage of justice.
PARTICULARS OF ERROR
a) From the pleadings, the agreement was a memorandum disclosing the fact that there was passage of title from DW1 to the appellants.
b) The said memorandum does not fall into the category of registrable instruments under section 3 of the Land Tenure Law.
c) The issue the trial Court ought to have considered was whether the document was admissible and no more.
As per the requirements of the Rules of that Court briefs of argument were subsequently filed and exchanged.
The Appellants’ brief of argument dated 14 – 03 – 2011 and filed on 11 – 04 – 2011 but deemed properly filed on 23 – 10 – 2012 was settled by Akor Yaaya Esq. The Respondent’s brief dated and filed on 21 – 11 – 2012 was settled by A. J. Agbo Esq. The Appellants also filed a reply brief dated 03 – 01 – 2013 and filed on 07 – 01 – 2013.
In their joint brief of argument the Appellants distilled three issues for determination as follows:-
ISSUES FOR DETERMINATION
(a) Whether the land in issue was compulsorily acquired by the government of Benue State for public purposes in accordance with Land Use Act and whether the grant of Certificate of Occupancy No. BNA 7807 to the Plaintiff over the land in dispute is not a nullity taking into account that the Defendants predecessor in title had been in effective undisturbed possession of the land for over 40 years before the Land Use Act and was not served with notice of revocation.
(b) Whether the grant to the Respondent served the intent of the Land Use Act for public use absolutely, and
(c) Whether the trial Court was right in dismissing in its entirety the Appellants’ counter claim.
For the Respondent two issues were formulated for determination to wit:-
(i) Whether or not the land covered by Certificate of Occupancy No. 7807 was allocated to the Respondent herein in accordance with the law and due process.
(ii) Whether or not the trial judge rightly dismissed the counter claim of the Defendants (Appellants herein).
It is glaring that the two issues raised by the Respondent are similar to the Appellants’ issues 1 and 3. In the circumstance I will adopt the Appellants three issues in the determination of this appeal. I will also take issues one and two together as was done by learned counsel for the Appellant in his submission.
ISSUE 1 & 2
Dwelling on the two issues learned counsel for the Appellant submitted that the case for the Respondent was that she applied for a plot of land with the ministry of lands and survey, Benue State in 1991 and plot No. BNA 7807 was allocated to her in 1993. But she did not plead or prove that the land was revoked from the original owners and compensation paid to them before it was allocated to her. But for Appellants their case was that they purchased the land from the customary title holders DW1 and agreement to that effect was executed in the year 2000.
He added that the learned trial judge erred in law in granting the reliefs of the Respondents without taking into consideration the fact that the Appellants acquired title from a deemed holder of the statutory Right of Occupancy by virtue of Section 34 (2) of the Land Use Act 1978.
Learned counsel further submitted that the mere grant of the Certificate of Occupancy to the Respondent by the Benue State Government did not ipso facto revoke the title of the Appellants’ predecessor in titles deemed Right of Occupancy which has been vested in the Appellants predecessor in title before the coming into effect of the Land Use Act and which in this case is first in time. He relied on the cases of MUSA V. OSAWE (1991) 8 NWLR (PT. 208) 249. And OGUNLEYE V. ONI (1990) 2 NWLR (PT. 135) 780.
Furthermore he says, section 28 of the Land Use Act envisages a positive notice which must be served on the DW1 personally in accordance with Section 44 of the same Act which knows nothing about implied notice or presumed revocation citing LSDPC V. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (PT. 50) 413, OBIKOYA V. GOVERNOR OF LAGOS STATE (1987) 1 NWLR (PT. 50) 387 and OKEKE V. TOFI (1990) 1 PLR 605. He added that before a deemed Right of Occupancy can be revoked there must be strict compliance with Section 28 and 44 of the Land Use Act. See A.G OF LAGOS STATE V. SOWANDE (1992) 8 NWLR (PT. 271) 589 AT 601.
It was the learned counsel’s further contention that even if the government acquires the land properly, the manner of allocation to the Respondent was not for public purposes. He placed reliance on EREKU V. MILITARY GOVERNOR, MIDWESTERN STATE (1974) 10 SC 59 AT 65 – 66.
Replying on the Appellants’ issue (1 & 2) together, learned counsel for the Respondent referred to Exhibit 1 to submit that due process was followed in allocation of the land covered by the Certificate of Occupancy No. 7807 to the Respondent and the lower Court was correct in its findings to that effect at page 249 of the record. He further referred to the unchallenged evidence of PW3 that the land was allocated to the Respondent by the Land use and Allocation Committee at its sitting of 22nd and 23rd of September, 1993 and the said land had beacon Nos. MKC 2048; MKC 2049; MKC 2043 and MKC 2042 with area of 0.143 Hectares known and identified as plot No. BNA 7807 ON TPS 003.
Learned counsel was of the stance that the PW3 was not cross-examined on whether or not due process was followed before the land was allocated or whether Section 28 of the Land Use Act was observed or complied with.
He added that neither the Appellant nor Tyav Torgenga who purportedly transferred ownership of the land to the Appellants challenged the action of the Benue State Government and that once a Certificate of Occupancy is issued; there is a presumption that at the time of issuance, there was not in existence a customary owner whose title has not been revoked. Reference was made to the case of MADU v. MADU (2008) ALL FWLR (PT. 414) 1604 AT 1622.
In his reply to the respondent’s brief of argument, learned counsel for the Appellants submitted that the instant case was beyond presumption as there was an already existing customary owner which the respondent herself acknowledged.
There is no dispute as to the fact that the Respondent was granted a Certificate of Occupancy in 1995 by the Benue State Government with respect to the land in dispute. It is also not in dispute that the Appellant subsequently purchased the said land in dispute from one Tyav Torgenga (DW1) in the year 2001.
The issue in contention as presented by the Appellant is that the Certificate of Occupancy granted to the Respondent is not valid in law because the deemed Right of Occupancy which enures on the Appellants’ predecessor in title by virtue of Section 34 (2) of the Land Use Act 1978 was not revoked in accordance with Section 28 of the said Act neither was a notice of such revocation served on DW1 AS REQUIRED BY Section 44 therein. Consequently, failure to comply with the relevant provision of the Land Use Act renders the allocation to the Respondent invalid.
Now Section 28 of the Land Use Act provides in detail, the power of the Governor of the State to revoke a Right of Occupancy, the procedure for such revocation and the grounds that will so justify the revocation.
Section 28 of the Land Use Act reads:-
(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 s statutory right of occupancy means: –
(a) the alienation by the occupier by assignment, mortgage, transfer of possession, sublease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulation 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 therein.
(3) overriding public interest in the case of customary right of occupancy means:
(a) 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;
(b) the requirement of the land for mining purpose or oil pipeline or for any purpose connected therewith.
(c) the requirement of the land for the extraction of building materials,
(d) the alienation by the occupier by sole, assignment, mortgage, transfer of possession, sublease, bequest or otherwise of the right of occupancy
(4) the Governor shall revoke a right of occupancy in the event of the issue of notice or by or on behalf of the president if such notice declares such land to be required by the Government for public purposes
(5) the Governor may revoke a statutory right of occupancy on the grounds of:
(a) a breach of any of the provisions which a certificate of occupancy is by section 10 of this Act deemed to contain;
(b) a breach of any term contained in the certificate of occupancy or in any special contract made under section 8 of this Act;
(c) a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under subsection (3) of section 9 of this Act.
(6) this revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the Governor and notice thereof shall be given to the holder,
(7) the title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection (6) of this section or on such later dote as may be stated in the notice.
Section 44 which deals with service of Notice of such revocation therein reads
Any notice required by this Act to be served on any person shall be effectively served on him:-
(a) By delivering it to the person on whom it is to be served; or
(b) By leaving it at the usual or last known place of abode of that person; or
(c) By sending it to a prepaid registered letter addressed to that person at his usual or last known place of abode; or
(d) In the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered of principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office; or
(e) If it not practicable after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served, by addressing it to him by the description of “holder” or “occupier of the premises (naming them) to which it relates, and by delivering it to some person on the premises or’ if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.

However, it is to be noted that where a Certificate of Occupancy is properly and duly issued by the competent authority, it raises the presumption that the holder is the owner in exclusive possession of the land concerned. It also raises the presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked.
The presumptions are however rebuttable where for instance, it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy, the Court can revoke same. See OSAZUWA V. OJO (1999) 13 NWLR (PT. 634) 286, EZENNAH V. ATTA (2004) ALL FWLR (PT. 202) 1858; MADU V. MADU (2002) 13 NWLR (Pt. 784) 231 or (2008) ALL FWLR (pt. 414) 1604 and EKE V. ELUWA (2000) 14 NWLR (PT. 688) 560.
The instant case seems to fall into this category going by the evidence of the Respondent at the lower court supported by that of PW3. According to the Respondent, in 1991 she applied to the Benue State Ministry of Lands and Survey for allocation of plot of land. The land use and allocation Committee of the Ministry approved it and a plot was allocated to her at site TPD 003 in 1995. A staff of the Ministry took her to the site and showed her the plot. She was taken to the village head by some villagers she met on the site. The village head by name Torgenga called his son Tyav (DW3) and told him that Government has allocated that particular plot of land to her. She subsequently processed the papers for a Right of Occupancy which was granted in 1995. In 2003 she visited the land to notice that her beacons on the land had been removed and new beacons were put there. By then the village head (Torgengar) had died and his son told her that after his father’s death he moved to Abuja to farm only to come back and find that one Aondo Kpo had sold part of his father’s land including that allocated to the Respondent and that it was the 2nd Appellant that keeps removing the beacons.
The Respondent was not cross-examined as to the validity of the Certificate of Occupancy or existing ownership of the land in dispute before the said Certificate was issued and whether there was any act of revocation by the relevant authority. This same shortcoming affected the evidence of the PW3 who is a staff of the Ministry of Lands and Survey and testified as to the genuineness of the act of the government in the land and the Certificate of Occupancy issued to the Respondent. Credible evidence which has not been challenged or controverted ought to be acted upon in proof of facts in issue. See ODUOLA V. COKER (1981) 5 SC 197 AND LAWSON V. AFANI CONTINENTAL CO. (NIG) (2002) FWLR (PT. 109) 1736, OMOREGBE V. LAWANI (1980) 3-4 SC. 108; IKUMOLA V. ONIWAYA (1990) 4 NWLR (PT. 146) and U.B.N. LTD. V. OGBOH (1995) 2 NWLR (380) 647 at 699.
In the circumstance, there is a strong presumption in favour of the Certificate of Occupancy issued to the Respondent to the effect that at the time it was issued, there was not in existence, any customary or deemed owner of the land in question whose title has not been revoked by the Benue State Government.
This is so, having regard to the fact that there is no proof by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy to the Respondent. See EZENWAH V. ATTA Supra.
The Appellants who purportedly bought the land in 2000 that is five years after the allocation of the land and grant of a Right of Occupancy to the Respondent relied on the presumed title of the DW1 to the land. The said DW1 was present when the Respondent met his father in 1993. His father who was then the village head informed him (DW1) that the government has allocated the said land in dispute to the Respondent and he did not object to it or challenge the right of the government to do so. His father equally did not react to the development or take any action against the government for taking over their land or for allocating it to the Respondent. The present scenario is that the Appellants who are subsequent purchasers of the disputed land have stepped into the shoes of the DW1 and his father to raise the issue of revocation and compensation. While the supposedly deemed owner is merely standing by to act only as a witness to the fact that they purchased the land in dispute from him.
This to my mind, is absurd and creates much doubt as to the genuineness and credibility of the evidence of DW1 that the land in dispute belonged to his father Torgenga. The learned trial Judge made the following findings in his Judgment at page 249 of the record:-
“The Statutory Right of Occupancy and the Certificate of Occupancy all give the description of the land stating the beacon numbers and the dimension. The DW1 also confirms that the land the Plaintiff is claiming and which she showed him is the one he sold to the 1st and 2nd Defendants. He is witness for the Defendants. This is therefore admission against interest. I do not see any evidence at variance with the situation on the ground. The question raised by learned Counsel in that issue is therefore answered in the affirmative. Related to this issue is the issue raised by the plaintiff’s counsel i.e. whether or not the land in dispute covered by certificate of occupancy No. BNA 7807 was allocated to the plaintiff in accordance with the provisions of the law and due process. In answering this question, Counsel referred the court to pages 1-15, 16-29, 40-45 and 58 of Exhibit 1. I have looked at the pages and have observed earlier in this judgment the processes followed by the issuance of the title documents. I have no reason to doubt that due process was followed. There is no contrary evidence from the defence. I therefore hold that the allocation to the plaintiff was in accordance with the provisions of the law and due process.”
I cannot but agree with the findings and conclusion of the learned trial Judge that in the absence of any contrary evidence there is no reason to doubt the fact that due process was followed in the issuance of the Certificate of Occupancy to the Respondent.
In the circumstance, Appellants’ issues 1 and 2 are accordingly resolved against them.
ISSUE 3
That as whether the learned trial Judge was right in dismissing the counter-claim of the Appellants.
Dwelling on this issue, learned counsel for the Appellants referred to the portion of the Judgment of the lower court where it was held thus at page 252 of the Records.
“As regards the counter-claim of the Defendants, I am of the view that with evidence of creation of the area where the land situate into a layout in the 1990s, the DW1 could not have title to the land in 2000 as to pass same to the Defendants. The principle of nemo dat quadnon habet will apply to his act of sale to the Defendants. The counterclaim therefore fails and it is accordingly dismissed.”
Learned counsel then made reference to the counter claim of the Appellants as sought in the lower court which includes an order of declaration of title, setting aside the statutory right of occupancy granted the Respondent, injunction and damages.
He added that the evidence of the appellants that they acquired the land from Tyav Torgenga, DW1 who inherited it from his forefather who also acquired and cultivated the land for over 40 years prior to the coming into effect of the Land Use Act in 1978 was not challenged.
Learned counsel further submitted that it was not pleaded and proved that the Benue State Government issued notices of revocation of existing titles before it created the layout and subsequently allocated a portion of it to the Respondent.
He referred to Section 28 of the Land Use Act to contend that revocation by the Governor must be for overriding public interest or for public purposes and with appropriate compensation paid to the holders who must have been given notice of such revocation.
On the contrary he says, the Appellants established that they validly acquired the plot by purchase from the DW1 who also confirmed it. He then submitted that the lower court erred in holding that the Appellants did not acquire a valid title because the area has already been made a layout and thus divest the DW1 of his title.
In his reply on this issue, learned counsel for the Respondent submitted that it is the duty of Government to acquire and observe the provision of Section 28 of the Land Use Act in acquiring land for the purpose of allocation to the public and failure to so observe can be challenged by an aggrieved person.
He added that the DW1 who claimed to be the owner of the land before allocation to the Respondent never challenged the action of government, throughout the years that the Respondent was in possession and before the DW1 purportedly sold it to the Appellants.
Learned counsel further submitted that the Benue State
Government was not challenged or sued to show compliance with Section 28 of the Land Use Act and even the Appellants’ counter claim at the lower court, the Benue State Government was not joined as a party in which case the lower court could not competently make any order that may affect them.
Also referring to paragraphs 15 and 16 of the Respondent’s Statement of Claim wherein it was averred that DW1 Tyav Torgenga was present at the Land Dispute Management Committee sitting and paragraph 18 of the Appellants’ statement of defence admitting same; learned counsel submitted that with such admission, there was no need to prove that DW1 attended the said meeting of the Land Dispute Management Committee and also gave evidence which is at pages 145 to 147 of the Record. He cited the following authorities: – NIRC HANDANI V. PINHEIRO (2007) FWLR (PT. 48) 1307, ZENITH PLASTICS INDUSTRIES LTD. V. SAMOTECH LTD. (2008) ALL FWLR (pt. 427) 176.
Now the reliefs sought by the Appellants in their counter claim as contained in page 23 of the records reads thus: –
(I) A declaration that the counter claimants are the owners of the land and the people entitled to the grant of Statutory Right of Occupancy.
(II) An order setting aside the Certificate of Occupancy No. BNA 7807 granted to the Plaintiff as having been given in error.
(III) An order of perpetual injunction against the plaintiff (Defendant) restraining her, her agents, privies from trespassing or otherwise, disturbing the counter claimants, peaceful enjoyment of their plot of land.
(IV) N3, 000, 000 (Three million) naira in general damages.”
The learned trial Judge made the following findings and conclusion at page 252 of the Records.
“In the instant case, the plaintiff sought to prove her ownership by production of documents of title white the defendants are relying on purchase from Dw1 who sought to prove his ownership by traditional evidence. It is in evidence through PW3 and Exhibit I that the area was laid out as far back as 1990s. See Pw3’s evidence under cross examination and pages 5 and 15 of Exhibit I and it is within Makurdi Urban. There is no pleading challenging the power of the Governor to grant the land in question. I am therefore satisfied that the plaintiff has proved her case to entitle her to the reliefs sought.”
“As regards the counter claim of the defendants I am of the view that with the evidence of the creation of the area where the land is situate into a layout in the 1990’s; the Dw1 could not have title to the land in 2000 as to pass same to the defendants. The principle of Nemo dat quod non habet will apply to his act of sale to the defendants. The counter claim therefore fails and it is accordingly dismissed. It is my finding that the plaintiff has better title over the land than the defendants. Judgment is hereby given in favour of the Plaintiff.”
From the two paragraphs of the Judgment as reproduced above, there is no doubt that the learned trial Judge made a proper finding of facts and also duly evaluated the evidence adduced by the parties before reaching a conclusion and as pertaining the Appellants’ counter claim, I have no cause whatsoever to fault the decision reached therein having regard to the available evidence.
Of particular interest and worthy of mention is the finding that going by the unchallenged evidence of the PW3 and Exhibit I tendered and admitted in evidence, the area (TPD 003) which includes the land in dispute was laid out by the government of Benue State through the Ministry of Land and Survey as far back as the 1990s. There has never been any petition or even court action by the DW1, nor did people challenge the action of government to so do or the power of the Governor to grant a Statutory Right of Occupancy to the Respondent. Also of interest is that, notwithstanding the nature of the reliefs sought by the Appellants in their counter claim, there is nothing in the pleadings challenging the failure of the Governor to comply with the relevant provisions of the Land Use Act in acquiring the land in dispute, neither was the said government made a party in the counter claim. The totality of the above places the title of the Respondent to the Land in dispute over and above that of the Appellants as having been first in time and duly and authentically granted. I therefore agree with learned trial Judge that the counter claim was not proved and should therefore fail. This issue is accordingly resolved against the Appellants.
On the whole I find that this Appeal lacks merit and is accordingly dismissed. The Judgment of the High Court of Justice Makurdi, Benue State delivered by Hon. Justice, T.A. Igoche on the 2nd day of July 2010 is hereby affirmed.
Parties to bear their costs.

ADZIRA GANA MSHELIA, (J.C.A): I have read in draft the lead judgment just delivered by my learned brother Oseji, J.C.A. my learned brother has fully dealt with the issues arising in the appeal and I agree that the appeal be dismissed. I do not think there is anything I can usefully add. I also agree with the order for costs made in the lead judgment.

MOHAMMED A. DANJUMA, J.C.A: I have read the draft of the leading Judgment in the above case just delivered by my Lord, Samuel C, Oseji, JCA and agree entirely that the reasoning and conclusion arrived at in dismissing this appeal is not only sound, but cannot be otherwise.
I join my noble Lord in affirming the decision of T. A. Igoche delivered on 2nd July 2010 from whence this appeal emanated.
Appeal dismissed.
I make no order as to costs.

Appearances

A. YaayaFor Appellant

AND

A. J. OgboFor Respondent