MRS. THERESA BASSEY & ANOR V. MRS. E.E. JAMES (2012)

MRS. THERESA BASSEY & ANOR V. MRS. E.E. JAMES

(2012)LCN/5520(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of June, 2012

CA/C/97/2007

RATIO

LAND LAW: NATURE OF A LEASE

A lease is an exact legal transaction affecting an estate and for it to be valid and enforceable in law, it must state the following:-

a) the lessor and the lessee
b) the premises and identify or dimensions of the property to be leased;
c) the commencement and duration of the term of the lease;
d) the rent payable
e) the terms , conditions or covenants of the lease; and
f) the mode of determination of the lease.

See OKECHUKWU v ONUORAH (2000) 12 SC (1) 104; BOSAH v ORJI (2002) 6 NWLR (762) 137; ODUTOLA v PAPERSACK (NIG) LTD. (2006) 18 NWLR (1012) 470. PER MOHAMMED LAWAL GARBA, JCA

LAND LAW: REQUIREMENT FOR FORFEITURE OF CUSTOMARY TENANCY

it is trite that failure by a customary tenant to pay tribute or rent fixed and agreed by the parties in their agreement, to the landlord as and when due, is recognized ground for the forfeiting the customary tenancy:- OKPALA V OKPU (1996) 8 NWLR (468) 589; ALADE v ABORISHADE (1960) 5 FSC 167. PER MOHAMMED LAWAL GARBA, JCA

LAND LAW: PRE-REQUISITE FOR A VALID GRANT OF A CERTIFICATE OF OCCUPANCY

Where it is shown by evidence that another person other than the grantee of a certificate of occupancy

had a better right to the land upon which the grant relates, a court would have no option but to set aside the said grant or otherwise discountenance it as invalid, defective and/or spurious as the case may be. OGUNLEYE v ONI (1990) 2 NWLR (Pt. 135) 745; DZINGIWE v GBISHE (1985) 2 NWLR (Pt. 8) 528″. PER MOHAMMED LAWAL GARBA, JCA

LAND LAW: NATURE OF TRESPASS

in law, trespass or an action in trespass is based on exclusive possession of land and it is a wrong to that possession. It constitutes the slightest disturbance of such possession by a person/s who cannot show a better right to possession or titre to the land in question. see FOREIGN FINANCE v L.S.P.D.C. (1991) S SCNJ 52 at 74; SHITTU v EGBEYEMI (1996) 6 NWLR (457) 650 at 656 – 9; IMONA-RUSSEL v. NIGER CONSTR. LTD. (1987) 3 NWLR (60) 298; UBA PLC v. SAMBA PET. CO. LTD. (2002) 16 NWLR (793) 361. In order to succeed in a claim for trespass and be entitled to the award of damages, a plaintiff must show or prove that he is the owner of the land or that he had exclusive possession thereof. A trespasser does not by the acts of trespass, secure possession in law from the person against whom he was in trespass. See ATANDA v FANOIKI (1990) 2 NWLR (131) 137; AYINIARA v SIJUWOLA (1984) 1 SCNLR, 410; FOREIGN FINANCE v L.S.P.D.C. (supra).

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

1. MRS. THERESA BASSEY
2. CHIEF EDIM A. EDIM Appellant(s)

AND

MRS. E.E. JAMES Respondent(s)

MOHAMMED LAWAL GARBA, JCA (Delivering the Leading Judgment): This appeal is from the decision of the Cross River State High Court in Suit No. C/299/95 and contained in the judgment delivered on the 29/11/06. The Respondent here had instituted the action against the Appellant and one other for inter alia, a declaration that she was entitled to the Right of Occupancy in respect of the parcel of land known as plot 233, Block P, Etta Agbor Road Layout, Akim Qua Town, Calabar, damages for trespass and injunction. At the end of trial, the High Court entered judgment in favour of the Respondent granting the reliefs sought and because they are dissatisfied therewith, the Appellants filed a notice and grounds of appeal on the 16/1/07 against the judgment.
As required by the Rules of this court, the parties to the appeal filed briefs of argument in support of their respective positions. The Appellants’ brief was filed on the 14 /11/11, but deemed on the 13/3/12 while the Respondent’s brief was filed on the 13/4/12. At the oral hearing of the appeal on the 17/5/12, the briefs of argument were adopted by the learned counsel for the parties who urged us to uphold their respective submissions therein and urged us to allow or dismiss the appeal as the case may be.
From the five (5) grounds of appeal contained on the notice of appeal, Mr. Anietie E.R.S. Akpabio, Esq. had distilled three (3) issues for determination in the appeal as follows:
“1. Whether the Respondent has a valid or legal interest in the property situate at Plot 233, Block P, Eta Agbor Layout, Akim Qua Town, Calabar, arising from the agreement dated 25/3/78.
2. Whether the issuance of a Certificate of Occupancy No. CA/2522/82 based on the Agreement dated 25/3/78 confers a valid and legal estate on the Respondent.
3. Whether the learned trial judge was right in awarding N100,000.00 damages to the Respondents against the Appellants”.
Mr. A. A. Annoh, Esq., the learned counsel who settled the Respondent’s brief adopted but reframed the issues submitted by the Appellants in the following terms:-
“1. Had the Respondents’ husband based on the evidence on record failed to pay the rent due from him to the appellants so as to affect the validity of Exh . “B” or his title to the land?
2. Was the Certificate of Occupancy issued to the Respondent’s husband based on Exh. “B” validly issued?
3. Did the Respondents make out a case for trespass to entitle her to an award of damages?”
Looking at the complaint in the grounds of appeal, the Appellants’ issues appear to be more precise and so I would use them in the determination of the appeal, having been adopted by the learned counsel for the Respondent.
ISSUE 1
The submissions by the learned counsel for the Appellants are that the Respondent’s husband was granted lease of the land in dispute by the Ntoe’s Cabinet and that by the Agreement entered into by the parties, he was required to pay consolidated charges of N900, N70 for documentation and annual rent of N60.00 It was his submission that the Respondents husband failed to or did not pay the rents agreed on as and when due, amounting to N5,940.00 but surreptitiously applied for a certificate of occupancy (C of O) based on the agreement. Accordingly to him, the lease agreement was at best, an executor contract since no consideration was provided by the Lessee and so remained unperformed; not binding on the parties. He urged us to so hold and further argued that paragraph 5 of the lease agreement provided that if the annual rents were not paid or the lessee failed to perform any obligation there under, Lessor shall have the right to enter the land and take possession as if there was no such lease or it had lapsed. Furthermore, that Ntoe’s Cabinet had re-entered the land, which was not shown to the respondent’s husband, when he failed to abide by the Agreement and reallocated it as per the notice published in the Nigerian Chronicle Newspaper of 6th day of June, 1992, in line with paragraphs 2 and 5 of the lease agreement. The case of M. ISIYAKU v. ZWINGINA (2003) 6 NWLR (817) 560 was cited on the submission and in further argument, learned counsel said because Exh. ‘B’ was made almost one year after Exhs. ‘E’ and ‘E1’, it was not part of the transaction in the latter and nothing therein indicated that it had any relationship with Exhs. E and E1. He said the High court had therefore speculated when it stated that the transaction for the land in issue between the parties was consummated once the Respondent the payments in Exhibits E and E1, and that Exhibit ‘B’ was merely to formalize the transaction and no more. Also, that the payment of the annual rent contained in Exhibit ‘B’ was never contemplated by the parties to be a pre-condition for the validity of the lease agreement. Learned counsel, relying on KODE v. Yusuf (2001) 4 NWLR (703) 392 at 413 and ESENE v ISIKUEMEN (1979) 2 SC, 87 said the courts are not allowed to indulge in speculation or conjuncture, but use on facts and evidence before it. It was his submission that in the absence of evidence, the High court ought to hold that the breach of the lease agreement had vitiated it and that there was no landlord/Tenant relationship between the parties such that title to the land in issue had remained with Ntoe’s Counsel, who had the right to re-allocate it. He then cited the case of ANYAFULU; AGAZI (2007) FWLR (344) 143 at 146 where it was said that payment of rent is an acknowledgement of the tenancy and urged us to hold that it is the payment of such rent by a tenant to a landlord that validates a tenancy or lease agreement. We were urged to allow the appeal on this ground.
For the Respondent, it was submitted that the letter from the Appellants to Respondent requesting for the payment of N970, admitted as Exh .’D’ at the trial, did not state that further payment was expected from him, when it was to be made and no demand notice was sent to him for such further payment. The learned counsel for the Respondent then said that since the Respondent’s husband was later granted C of O in respect of the land, the conditions set out in the certificate regulated his relationship therewith, citing EZEANNAH v ATTA (2004) 17 WRN 1 at 7 as authority on the position. He said there was a valid agreement between the parties and that Exh . ‘D’ governed the manner in which rent for the land was to be paid, insisting that the total amount demanded from the Respondent’s husband was fully paid by him and no demand for further payment was made, as promised. It was then contended that even if the amount payable by the Respondent’s husband was N5,940 as argued by the Appellants, the sum of N900.00 paid represented rents for fifteen (15) years and further payment was to be made when demand notice was issued by the Appellants. Learned counsel then submitted that the respondent’s husband did not fail to pay rent and title was passed to him vide Exh. ‘B’, leaving the Appellants without any right to re-allocate the land in dispute even if there was any balance of rent to be paid by him. Reliance was placed on EDOSA v ZACCALA 9 (2005) 34 WRN, 103 at 114 and BIYO v AIKU (1996) 1 NWLR 422 where the conditions set out therein, were said to exist in the case. We were urged to resolve the issue in favour of the Respondent.
I would like to observe that there is no dispute, since the parties to this appeal are one, on the fact that they had initially entered into a lease agreement in respect of the land in dispute. The said agreement was tendered without objection and admitted as Exh. ‘B’ during the trial. By the said agreement, the Respondent’s husband was granted the land in dispute by the Ntoe’s Council on lease, premised on the terms and conditions set out therein and freely accepted by the parties. The lease agreement created the relationship of a Landlord and Tenant between the Ntoe’ Council and the Respondent’s husband respectively, which is contractual in nature and so its terms bind each of them and cannot be altered by either of them without the consent or agreement of the other.

A lease is an exact legal transaction affecting an estate and for it to be valid and enforceable in law, it must state the following:-
a) the lessor and the lessee
b) the premises and identify or dimensions of the property to be leased;
c) the commencement and duration of the term of the lease;
d) the rent payable
e) the terms , conditions or covenants of the lease; and
f) the mode of determination of the lease.
See OKECHUKWU v ONUORAH (2000) 12 SC (1) 104; BOSAH v ORJI (2002) 6 NWLR (762) 137; ODUTOLA v PAPERSACK (NIG) LTD. (2006) 18 NWLR (1012) 470.In the present appeal, the lease agreement between the parties; Exhibit ‘B’ had stated and contained all the above requirements and so it is a valid, binding and enforceable agreement on the parties. Apparently, the contractual relationship created by Exh. ‘B’ is that of customary tenancy since it rerates to the customary rights of the Ntoe’s counsel over the land granted on lease to the Respondent’s husband. The law is that once land is granted to a tenant in accordance with native law and custom, whatever may be the consideration, full rights of possession are conveyed to the grantee or lessee and the only right remaining in the grantor or lessor, is that of reversion should the grantee/lessee breach any of the terms or conditions of the agreement or deny the grantor/lessor’s title or determination of the agreement.
OKEGBE v CHIKELE (2000) 7 SC (1) 106 at 113; AKINTOLA v OYELADE (93) 3 NWLR (292) 379.

Another settled principle of law is that even in the event of the breach of any conditions or terms of an agreement by a customary tenant, he would not automatically, forfeit the tenancy, and the landlord would on his own, retake or repossess the leased property or reclaim reversion. Therefore, where there was an action which warrants forfeiture, the proper remedy for the landlord is to ask a court of law to forfeit the interest of the tenant and make an order for possession. See OGUN v AKINYELU (1999) 10 NWLR (624) 671; AKINTOLA v OYELADE (supra).
Again, before I get done with the general restatements of the law, it is trite that failure by a customary tenant to pay tribute or rent fixed and agreed by the parties in their agreement, to the landlord as and when due, is recognized ground for the forfeiting the customary tenancy:- OKPALA V OKPU (1996) 8 NWLR (468) 589; ALADE v ABORISHADE (1960) 5 FSC 167. Perhaps I should point out and emphasise that the basis and foundation upon which Exh . ‘B’ was executed by the parties, was the grant of the land in dispute to the Respondent’s husband vide Exh. ‘D’ and the payments made by him vide Exhs. ‘E’ and ‘E1. It was the grant in Exhibit ‘D, that effectively vested the right of title to and of possession of the land in dispute in the Respondent’s husband and Exh. ‘B’, the lease agreement, only set out the terms and conditions under which the rights of the parties were to be exercised in respect thereof.
It is expedient to bring in Exh . ‘D’ which is in the following terms:-
NTOE’S CABINET ‘E2’80” AKIM QUA TOWN
c/o 83, Akim Road,
P. O. Box 65,
Calabar.
Our Ref: ETR/AQT/2/15 Date 31/1/77
Mr. Efiong B. James
Ministry of Justice
Calabar.
Dear Sir/Madam,
ETA AGBO ROAD LAYOUT-AKIM QUA TOWN
I have pleasure to inform you that the Ntoe’s cabinet has approved the allocation of First No. 233 Block p to you.
You are hereby requested to pay the first instalment of the consolidated charges of N900.00 as explained at the interview on or before 1/2/1977. The second instalment of N … Will be due at the end of … Demand notices will be sent to you at the appropriate time.
Yours faithfully,
…………………….
Chief I. E. Eta,
Hon. Secretary.
Note: Please detach bottom slip and return with your payment and retain the top part for reference.
As can easily be observed, Exh . ‘D’ was dated the 31/1/77. The payments requested therein from the Respondent’s husband were made by him on 10/6/77 and 19/12//71 as per Exhs. ‘B’ and ‘E1’ respectively. By Exh. ‘D’, the Appellant’s had offered the grant of the right of title and possession of the land in dispute to the Respondent’s husband and by Exh . ‘E’ and ‘E1’ he had accepted the grant thereby creating the legal relationship of lessee and lessor between the parties. Exhibit ‘B’ which was executed about four (4) months later, on the 25/3/78, was to formalise the agreement on the grant by spelling out the terms and conditions to be observed and complied with by the parties under it.
It may be recalled that the position of the learned counsel for the Appellants is that by the covenants or terms of Exh. ‘B’, the Respondent’s husband was to pay an annual rent of N60.00 to the Ntoe’s council which he failed to do and therefore breached the agreement. He said while in breach of the agreement, the Respondent’s husband secretly applied for and obtained Certificate of occupancy in respect of the leased property, I have before now stated that the parties to the appeal are one in respect of the Exh. ‘B’ and so are not disputing that one of the covenants in the agreement was that the Respondent’s husband was to pay an annual rent of N60.00 on the leased property.
For a clear appreciation of the terms, conditions or covenants freely agreed to by the parties to Exh . ‘B’, it is expedient to set them out. They are as follows:
“WHEREAS the LESSOR is seised in fee simple absolute free from all encumbrances of all that piece or parcel of land situate at BLOCK P PLOT 233 in ETA AGBO ROAD, LAYOUT AKIM QUA TOWN, CALABAR, containing an area of 1.251.36 square yards which is more particularly delineated on the plan No. DAACO/SE/50B attached to these presents and bordered pink hereinafter called the Building Land.
AND WHREAS the LESSEE has agreed to take a lessee of the said Building Land. NOW THIS LEASE WITNESSETH:
1. IN pursuance of the above agreement and in consideration of the rents and covenants on the part of the LESSEE and conditions hereinafter reserved and contained the LESSOR as beneficial owner hereby demises unto the LESSEE all that Building Land aforementioned to hold the same unto the LESSEE from the 1st January 1975 for the term of 99 years at a yearly rent of N60.00 (Sixty Naira) determinable in the circumstances hereinafter mentioned.
2. The LESSEE hereby covenants with the LESSOR as follows:
i) To pay in advance the annual rent of N60.00 on the first day of the anniversary of the date and year herein above written.
ii) To pay and discharge all existing and future rates, taxes, duties, charges assessments, impositions and out-goings whatever (whether imposed by statute or otherwise and whether of a national or local character) now or at any time during the said term payable in respect of the Building Land and the house or houses built on it.
iii) To use the Building Land for the building of private or personal dwelling house or dwelling houses.
iv) To commence the erection of buildings not later than three years from the date and year first above written.
v) Not to do or permit to be done or suffered on the Building land and subsequent premises anything which may be or become an annoyance inconvenience or nuisance to the Lessor or other owner or occupiers of any adjoining or neighbouring property or to the neighbourhood or which may infringe any legislation for time being in force.
(vi) Not to assign, underlet or part with or share the possession or occupation of the Building Land or any part thereof without the previous written consent of the Lessor such consent not to be unreasonably withheld AND to procure that every permitted underlesse of the Building Land or any part thereof shall contain a covenant by the underlessess or underlessee with the LESSOR not to assign, underlet, charge or part with or share the possession or occupation of the property comprised in such underlease or any part thereof without the previous written consent of the LESSOR such consent not to be unreasonably withheld.
vii) To pay all costs charges and expenses of the LESSOR (including solicitor’s counsel’s surveyor’s costs charges and fees) reasonably incurred in granting any consent under this ease.
viii) In the event of a private residential building erected on the land being let to a commercial firm, government department or corporation a premium (once and for all capital payment) for change of use shall be assessed on the enhanced value of the premises’ such premium shall represent the approval or consent fee to the LESSOR in accordance with the provision of paragraph 2 Sub paragraph (iii) of this lease.
3. THE LESSOR hereby covenants with the LESSEE as follows:
i) The LESSEE paying the rent hereby reserved and performing and observing the covenants conditions and agreements herein contained and on the part of the Lessee to be performed and observed shall peaceably hold the Demised Building Land (subject to the exceptions and reservations herein contained) during the said term without any lawful interruption by the Lessor or any person claiming under or in trust for the Lessor.
4. IT IS MUTUALLY AGREED that the rent reserved shall be subject to review at the interval of TEN years from the date and year above written.
5. PROVIDED ALWAYS and these presents are made upon this express condition namely if the said yearly rent or any part thereof shall at any time be in arrears and unpaid for 21 days after the same shall have become due (whether any formal or legal demand thereof shall have been made or not) or if the LESSEE shall at any time fail or neglect to perform or observe any of the covenants conditions or provisions herein contained and on the part of the LESSEE to be performed and observed or if the LESSEE being a company shall enter into liquidation whether compulsory or voluntary (not being merely a voluntary liquidation for the purpose of amalgamation or reconstruction) or not being a company shall become bankrupt or have a receiving order made against him or if the Tenant (whether an individual or a company) shall enter into any arrangement or composition for the benefit of the LESSOR’S creditors or permit or permit or suffer any execution to be levied on the Demised Building Land then and in any case it shall be lawful for the LESSOR or any person or persons duty authorized by the LESSOR in that behalf into and upon the Demised Building Land or any part thereof in the name of the whole to re-enter and the Demised Building Land peaceably to hold and enjoy thenceforth as if these presents had not been made and so that the terms of years hereby granted shall thereupon absolutely determine but without prejudice to any right of action or remedy of the LESSOR in respect of any antecedent breach of any of the covenants conditions or provisions by or on the part of the LESSSEE herein contained.”
Clearly, by covenant 2(i) of Exh. ‘B’ above, the Respondent’s husband was required to pay in advance annual rent of N60.00 on the first day of the anniversary of the date and year of the lease agreement. The annual rent to be paid under Exhibit ‘B’ by the lessee became due and expected to be paid on the 25/3/79, which was the first anniversary of the agreement. It was Exh. ‘B’ in the above covenant that set out and govern the payment of rent by the respondent’s husband on the demised property and not Exh. ‘D’ as contended by the learned counsel for the Respondent. Again, the payments made vide Exh. ‘E’ and ‘E1’ cannot be said to be the rent stipulated in Exhibit ‘B’ because they were made in respect of the grant in Exh. ‘D’ wherein they were specifically requested for and made earlier than the date of Exhibit ‘B’. So it is not correct for the learned counsel for the Respondent to say that the payments ma de vide Exhs . ‘E’ and ‘E1′ were for the rent stipulated in Exh .’B’ .
The case of the Appellants it may be remembered, is that because the Respondent’s husband did not pay the rents stipulated in Exhibit ‘B’ as and when due, the failure or non payment had vitiated the lease agreement and the title to the land had reverted to the lessor who had the right to re-allocate it.
Let me say that non-compliance with the covenant to pay rent under Exhibit ‘B’ does not automatically affect or vitiates the validity of the grant of title and possession of the land in dispute but only goes to the rights the parties could claim under Exh ,’B’.
I have before now shown that the law is that even where a lessee breaches a covenant or term and conditions of a lease agreement, the lessor cannot on his own take over the land in question, but has to go to the court of law and ask for forfeiture of title by the lessee and possession. Although as seen earlier, failure or non-payment of agreed rent under a lease agreement is one factor which may warrant forfeiture of the lease or tenancy in question, it is not automatic and the lessee cannot use it without recourse to the court, to retake or repossesses’ the land in the name of reversion under the agreement. Until a proper order was made by a court of law, the right to title and possession of the land remains legally with the lessee, exclusively.
There is no record in this appeal to show that after the execution of Exhibit ‘B’ the Respondent’s husband had paid the rent stipulated therein as and when due. He was consequently in breach of one of terms and conditions set out in the agreement in respect of the grant of the land in dispute to him. However, the failure or non payment of the rent only entitled the Appellants to the right to enforce the other terms and conditions of the agreement as a consequence, by the procedure recognized by the law and not by self help. Until the Appellants availed themselves of the proper and appropriate procedure in law to assert and claim the right to retake or repossess the land in reversion of title, the grant of the right of such title and possession remained with the Respondent’s husband. OGUN v AKINYELU and AKINTOLA v OYELADE (both supra); WILLIAM v HAMMOND PROJECTS (1988) 2 SCNJ 318.The Appellants have not suggested let alone claim that they had gone to court to assert the right vested in them in the event that the lessee failed to comply or abide by any of the terms and conditions of Exhibit ‘B’ but relied on the wrong notion that they could automatically and at their will, retake possession and enter the land on the failure of the lessee to pay rent. It was in that legally defective notion that the 1st Appellant purportedly reallocated the land in dispute in 1992.
In the above circumstances, my answer and finding on the issue is that the Respondent’s husband had a valid and legal interest in the land in dispute arising from the lease agreement in Exh. ‘B’. The issue is accordingly resolved in favour of the Respondent.
ISSUE 2
Whether the issuance of Certificate of Occupancy No. CA/1521/82 based on the agreement dated 25/3/78 confers a valid and legal estate on the Respondent.
For the Appellants, it was submitted that since the Respondent’s husband did not pay rents stipulated in Exhibit ‘B’ he acquired no title in respect of the land in dispute and had no right to the Certificate of Occupancy granted over the lands which he surreptitiously applied for and obtained. According to the learned counsel for the Appellants, the Certificate of Occupancy cannot defeat the title of the Appellants because it be based on existing title, relying on OFOEZE v OGUGUA (1996) 6 NWLR (455) 451 at 455; OGUNLEYE v ONI (1990) 2 NWLR (135) 745 at 783 and OSAHON v REG. TRUSTEES OF CCC (2002) 1 NWLR (749) 675 at 713. In addition, the case of MANI v SHANONO
(2007) ALL FWLR (345) 303 at 305, was referred to where this court had it was proved by evidence that another person had better title to land before the issuance of a certificate of occupancy, the court can revoke it.
It was then said by counsel that the Appellants have shown that the Respondent failed woefully to prove a prior existing interest before obtaining a certificate of occupancy and so he urged us to hold that the certificate of occupancy was not validly obtained and confers no interest in the land in dispute. We were urged to allow the appeal.
For the Respondent, it was submitted on the issue that the Certificate of Occupancy was issued based on the existence of a binding and valid agreement between the parties and that even if the Respondent had defaulted in payment of rents due to the Appellants, such default cannot affect the validity of the agreement. The case of EDOSA v ZACCALA (2005) 34 WRN, 103 at 114 was cited and we were urged by counsel to hold that the certificate of occupancy was validly issued on Exhibit ‘B’, a valid and binding agreement between the parties thereto.
Furthermore, that the revocation of a lease was not automatic for it has to be through the court before re-entry can be validly affected, on the authority of GOV. OGUN STATE v COKER (2003) 43 WRN 154 at 161.
I would start a consideration of the issue by saying that learned counsel foR the Appellant is right on the state of the law that a certificate of occupancy granted in respect of a piece, parcel or plot of land is only a prima facie evidence of the right of occupation of the land in question. The presumption in favour of the holder of the certificate of occupancy is always a rebuttable one because the mere fact that the certificate of occupancy was issued by the Governor of a State does not automatically vest leasehold or title thereby in favour of the person named therein as the grantee. Thus, any person without title to a piece of land in respect of which a certificate of occupancy was issued, acquires no right or interest in the land. See GAMBORUMA v GAMBO (1997) 3 NWLR (498) 530; ATTAH v EZEANI (2001) FWLR (49) 1489 at 1510 – 11; AUTA v IBE (2003) 7 SCNJ, 159 at 169. In the case of OMULAYE v. MACAULEY (2009) 7 NWLR (1141) 597 at 626 ‘E2’80” 7 and 8, the Supreme Court, per Oguntade, JSC, had restated the position that:-
“The holding of a Certificate of Occupancy, whether statutory or customary, is at best, prima facie evidence of title of the land covered by it. But its exclusive possession is rebuttable. DAPUB v KOLE (1993) 9 NWLR (Pt. 317) 254; TITILOYE v OLUPO (1991) 7 NWLR (Pt. 205) 519; OLOHUNDE v ADEYOJU (2000) 10 NWLR (Pt.724) 412.”

The pre-requisite for a valid grant of a certificate of occupancy is that there must not be in existence the valid title of another person with legal interest in the same said land at the time the certificate was issued. In other words, there must not be in existence at the time the certificate was issue, a statutory or customary owner of the land in issue or dispute who was not divested of his legal interest to the land prior to the grant, and
Where it is shown by evidence that another person other than the grantee of a certificate of occupancy
had a better right to the land upon which the grant relates, a court would have no option but to set aside the said grant or otherwise discountenance it as invalid, defective and/or spurious as the case may be. OGUNLEYE v ONI (1990) 2 NWLR (Pt. 135) 745; DZINGIWE v GBISHE (1985) 2 NWLR (Pt. 8) 528″.
The above position of the apex court says it all on the status and effect of the issuance of a certificate of occupancy in respect of a piece of land.
In the present appeal, the learned counsel for the parties agree that the certificate of occupancy No. CA/1521/82 was issued based on Exh . ‘B’ in respect of the land in dispute. The Certificate of Occupancy was put in evidence at the trial as Exh . ‘C’ and is at pp. 99 – 102 and 103.
It may be recalled that I have under Issue 1 found that the failure or non payment of the rent stipulated in Exh . ‘B’ by the Respondent’s husband, did not automatically vitiate the validity of the agreement but only vested the Ntoe’s Council with the right of reversion provided there which could only be exercised by a claim for forfeiture through the judicial process. It was also finding that until the Ntoe’s council availed itself of the order of the court for forfeiture of the lease and possession of the property in dispute, the title and exclusive possession granted the Respondent’s husband vide Exhs. ‘D’ and ‘B’, remained with him. See KUKOYI v. AIM (1999) 10 NWLR (624) 633 at 636; MAKINDE v. AKINWAK (2000) 1 SC 89; AKINTOLA v. OYELADE (1993) 3 NWLR (282) 379.
It is common ground that the Certificate of Occupancy obtained by the Respondent’s husband based on Exh. ‘B’, was granted to him in 1982. There is no record that the lessor in Exh. ‘B’, fully aware that the rent stipulated therein had not been paid by the Respondent’s husband since it was executed, had taken any step to enforce the right of reversion vested in it under the agreement, uptil the date the C of O was granted in respect of the demised property, to the lesee. In other words, the lessor did not assert or claim in the right to reposs, peacefully, the property in dispute, as provided in the agreement by asking the court of law to order forfeiture of the lease by the lessee on ground of non payment of the rent stipulated in the agreement, and possession of the property. So by the date the certificate of occupancy was granted, the Respondent’s husband had the title and right of occupancy of the land in respect of which it was granted. The C of O therefore did not vest title or right of occupancy of the land in dispute in the Respondent’s husband, but merely affirms and provides statutory evidence of the title and the right of occupancy he had prior to the issuance or grant by the Governor.
The mere fact that the lessor had purported to have exercised the right of reversion through self help and at will ten (10) years after the grant of the Certificate of Occupancy to the Respondent’s husband, in 1992 was an exercise in futility since it had no valid legal title in the disputed land or possession thereof at the time.
For the above reasons, the Certificate of Occupancy granted in respect of the land in dispute to the Respondent’s husband was validly issued to him based on the lease agreement which vested and conferred a valid legal estate in him. The certificate of occupancy therefore is the statutory evidence of that valid legal estate in the property in dispute.
The learned counsel for the Appellant had also contended that the certificate of occupancy was surreptitiously obtained based on Exh. ‘B’. I take him to mean that the C of O was obtained without the lessot’s knowledge or that the Respondent’s husband did not notify the lessor of his application for it.
It should be noted that it was not part of the terms and conditions in Exhibit ‘B’ that the lessee shall notify or inform the lessor about the intention to or when he was to apply for a statutory right of occupancy over the land, subject of the lease. By the demise of the property to the lessee, the lessor had divested itself of the right of title and possession of the land in dispute for the duration of the lease and title and exclusive possession vested in the lessee until determination of the lease. With valid title and exclusive possession duly vested in him under the lease, the Respondent’s husband had no duty either in the lease or the law, to inform or notify the lessor of the application for the statutory evidence of such title and possession. Knowledge of the lessor about the application for the issuance of the C of O in respect of the demised property by the lessee’ is not a condition or even a required consideration’ for the issuance of the certificate of occupancy.
For the above reasons’ the issue is resolved in the affirmative and in favour of the Respondent.
The last Issue is No.3; whether the learned trial Judge was right in awarding N100,000.00 damages to the Respondent against the Appellants.
In the two (2) sentences submission by the learned counsel for the Appellants on the issue’ he said the Respondent did not prove that they were on the land and so the award of damages was gratuitous.
We were urged to so hold and allow the appeal on that ground.
The learned counsel for the Respondent had submitted that the Respondent had given evidence that building materials were moved to the land and that for the Respondent to recover damages for trespass as in her case, she must not have sustained actual loss, relying on LUMBOBUN v LAWAL (2008) 57 WRN 1 at 30. He maintained that there was evidence that the Respondent was in possession of the land in question when the Appellants trespassed thereunto, to place an Ekpe Injunction and so she was entitled to damages. we were urged to resolve the issue in Respondent’s favour.
The damages awarded by the High Court against the Appellants was for trespass to the land in dispute. As is well known now, in law, trespass or an action in trespass is based on exclusive possession of land and it is a wrong to that possession. It constitutes the slightest disturbance of such possession by a person/s who cannot show a better right to possession or titre to the land in question. see FOREIGN FINANCE v L.S.P.D.C. (1991) S SCNJ 52 at 74; SHITTU v EGBEYEMI (1996) 6 NWLR (457) 650 at 656 – 9; IMONA-RUSSEL v. NIGER CONSTR. LTD. (1987) 3 NWLR (60) 298; UBA PLC v. SAMBA PET. CO. LTD. (2002) 16 NWLR (793) 361. In order to succeed in a claim for trespass and be entitled to the award of damages, a plaintiff must show or prove that he is the owner of the land or that he had exclusive possession thereof. A trespasser does not by the acts of trespass, secure possession in law from the person against whom he was in trespass. See ATANDA v FANOIKI (1990) 2 NWLR (131) 137; AYINIARA v SIJUWOLA (1984) 1 SCNLR, 410; FOREIGN FINANCE v L.S.P.D.C. (supra).

Another settled principle of law is that trespass is actionable per se without the need for proof of damages suffered or incurred as a result of the trespass. Since trespass is the unauthorized and unlawful interference with or invasion of exclusive possession, the slightest of such disturbance even if no injury or damages was caused thereby, would entitle a plaintiff to the award of some damages against the trespasser, to serve as deterrent to others or against further trespass. see AJAYI V JOLAOSHO (2004) 2 NWLR (856) 89; UBA PLC v. SAMBA PET. CO. LTD. (supra); OKPEJI v MIN. OF AGRIC. (1997) 9 NWLR (522) 593.
The only complaint by the learned counsel for the Appellants here is that the Respondent did not prove that she was on the land and so the award of damages was said to be gratuitous.
From the pleadings in paragraphs 9 and 12 of the statement of claim as well as the evidence given in support of the claim for trespass by the Respondent, it is clear that the Appellant’s had, without the consent or authority of the Respondent entered unto the land in dispute while it was validly and lawfully in the exclusive possession of her late husband, who also had title to it, and placed or invoked Ekpe juju and injunction on it. In fact, in paragraph 10 of the statement of defence, the Appellants had expressly and unequivocally admitted placing the Ekpe juju on the land. Both the pleadings and evidence of the Respondent as well as the admission by the Appellants have not only proved that the Respondent was on the land at the material time, but also that Appellants had in fact and law deliberately committed the acts of unauthorized interference with the exclusive possession by the Respondent. The Respondent had also pleaded and evidence given to the effect that at the time the Appellants invaded the land in dispute, they had forced the workers of the Respondent out of the land before placing the Ekpe juju and injunction. In the circumstances, there was more than sufficient proof that the Respondent was on the land at the time the Appellants committed their acts of trespass against the exclusive possession of the respondent. For that reason the award of damages for trespass against the Appellants and in favour of the Respondent was not only very richly deserved but also dutifully earned in law.
In the result, I find no merit in the submissions by the learned counsel for the Appellants on the issue and so resolve the issue against the Appellants.
In the final result, for the reasons which I had set out for the resolution of all the issues in the appeal, this appeal is devoid of merit. It fails and is dismissed by me accordingly.
Parties shall bear their respective costs of prosecuting the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA I am in total agreement with the reasoning and final conclusions in dismissing this appeal. I abide by the order as to costs.

JOSEPH TINE TUR, J.C.A.: I read in advance the judgment just delivered by my Lord, Mohammed Lawal Garba, JCA and I am in total agreement that this appeal should be dismissed, parties to bear their cost. I shall add the following comments of mine.
Paragraphs 5-13 of the statement of claim reacts as follows:
“5. The Plaintiff’s husband Hon. Justice E.B James (deceased) was granted lease of a parcel of land described as Plot No.233 Block P at Eta Agbor Layout, Akim Qua Town on a consolidated charge of N900.00 and N70.00 respectively for documentation, vice letter of allocation reference No. ETR/AQR/2/15 dated 31st January, 1977. Plaintiff relies upon the letter which is hereby pleaded. The total value paid by the then lessee amounted to N970.00 (nine hundred and seventy naira) as contained in his letters dated 2nd March, 1977, 10th June, 1977 and 19th December, 1977 respectively. The letters are hereby pleaded and the 1st and 3rd defendants are hereby given notice to produce. The lessee had since then and before his demise in 1993 been in lawful possession of the land.
6. In consideration of the allocation of the parcel of land and the satisfaction by the Lessee of his obligation (payment of the sum of N970.00) to the Lessors, the 1st defendant for and on behalf of the Ntoe’s cabinet himself and other principal members of the various families in Akim Qua Town executed an agreement with the Lessee dated the 25th day of March, 1978. The deed was duly registered in the land registry, Calabar as No.92 at page 92 in volume 135. The parcel of land was similarly and particularly shown and delineated in Survey Plan No. DAACO/SE/50B/ and thereon edged pink. The total area of the land is 1,251.36 sq. Metres. The agreements together with the Survey Plan will be relied upon at the trial of this action and are hereby pleaded.
7. The Lessee did in 1982 obtained a certificate of occupancy No.CA/152/82 signed by the erstwhile civilian government of the cross River State, his Excellency, Chief (Dr.) Clement Nyong Isong and dated 28th August, 1982. By the said grant of certificate of occupancy the ownership of the land became vested in the Government as the Lessor.
8. The Plaintiff states that while still in lawful possession of the property as the widow of her late husband, she received a letter dated 11th may, 1995 from the 3rd defendant directing her to produce documents relating to the land together with receipts of last payment of rent in respect of the land. The letter is hereby pleaded.
9. The plaintiff, as law abiding citizen went in response to the invitation contained in the letter under reference, but was shocked to her chagrin when informed that the parcel of land legitimately acquired from the 1st defendant in cabinet together with principal members of the various families in Akim Qua Town had been reallocated to the 2nd defendant. The plaintiff states too that the 3rd defendant acting on the instructions of the 1st defendant invoked Ekpe Juju upon the land as well as placed an Ekpe injunction on the land.
10. When all efforts by the plaintiff to get 1st and 3rd defendants to remove the Ekpe injunction on the land as well as both defendants to stop their acts of trespass on the land prove abortive, the plaintiff consulted and retrained the services of a legal practitioner – Chief E.E. Yellow-Duke of Ededem Chambers, Calabar.
11. The Plaintiff’s counsel, by the letter dated 18th may, 1995 addressed to the 3rd defendant, advised the defendants to remove the Ekpe injunction placed on the land and stop their acts of trespass on the land, but to no avail. The letter is hereby pleaded and the 3rd defendant is given notice to produce.
12. By the acts of the defendants the workers of the plaintiff have found it extremely difficult in view of the Ekpe Juju invoked on the land and the Ekpe injunction illegally and unilaterally placed thereon, to enter the land and continue their legitimate business of building construction which was going on at the time the defendants invoked the site and forced the workers out. The defendants have since then neglected, refused and failed to comply with the instructions t o remove the Ekpe Juju invoked on the land as well as the Ekpe injunction placed thereon or stop their acts of trespass.
13. Whereof the plaintiff has suffered loss and damages and claims against the defendants jointly and severally as follows:
(1) A declaration that the plaintiff is entitled to the statutory Right of Occupancy in respect of all that parcel of land known as and called Plot 233 Block P. Eta Agbor Layout, Akim Qua Town, Calabar.
(2) N500, 000.00 being damages for trespass to the said plot of land.
(3) AN order directing the defendants by themselves, their servants, agents workmen, assigns howsoever to vacate for with from plot 233 block P. Eta Agbor Layout, AKim Qua Town, Calabar covered by certificate of occupancy No.CA/1521/82.
(4) An order of perpetual injunction restraining the defendants whether by themselves, their servants, workmen and agents or otherwise howsoever from further acts of trespass and or doing anything inconsistent with the plaintiff’s proprietary interest in the piece or parcel of land lying and situate at plot 233 Block P, Eta Agbor Layout, Akim Qua Town, Calabar covered by Certificate occupancy No.CA/1521/82.”
In response the statement of Defence filed in the lower court reads as follows:
“2. In answer to paragraph 5 of the statement of claim, the 1st and 3rd defendants admit that the plaintiff’s husband, Honourable Justice E.B. James (deceased) was granted the said lease but deny the implication that the consideration there for was the development fee of N900.00 and documentation fee of N70 respectively, the 1st and 3rd defendants aver that payment of these sums of money were not a substitute for the payment of annual rent, a term which neither the plaintiff husband not the plaintiff ever bothered to perform. The said defendant will rely on the lease made the 25th day of March, 1998. The defendants deny the effect of the various letters pleaded in paragraph 5 of the statement of claim and also deny that the lessee has since been in lawful possession of the land.
3. The defendants admit paragraph 6 of the Statement of claim to the extent that the 1st defendant for and on behalf of the Ntoe’s cabinet and other principal members of families in Akim Qua Town executed an agreement with the lessee but deny the averment relating to the satisfaction by the lessee of his obligations under the lease.
4. In further answer to paragraph 6 of the statement of claim the Defendants say that due to the cordial relationship existing at that time between the lessee and the lessors, the lessors surrendered the agreement to the Plaintiff’s husband upon his oral promise to pay the annual rent in advance for some years soon after the execution of the agreement. However, the Plaintiff’s husband failed, neglected and or refused to abide by this oral promise.
5. Defendants do not know the facts averred in paragraph 7, of the Statement of Claim, and accordingly, deny them. In further answer to paragraph 7 of the Statement of Claim Defendants say that if the Certificate of Occupancy pleaded therein was in fact granted to the plaintiff’s husband, it was granted on false and misleading facts and therefore is a nullity.
6. In answer to paragraph I of the Statement of Claim, Defendants admit that the Ntoe’s cabinet issued to the plaintiff a letter dated 11th may, 1995 the Plaintiff but deny the opening statement of the said paragraph.
7. In answer to paragraph 9 of the statement of   claim, Defendants aver that the Plaintiff attended a meeting of the Ntoe’s cabinet held on Saturday, the 14th May, 1995. At the Said meeting, the following facts emerged.
(i) that the Plaintiff’s husband and the plaintiff had failed or neglected to develop the said plot up to 1995 when the plaintiff noticed that the plot had been re-allocated to the 2nd Defendant
(ii) that neither the plaintiff’s husband nor  the plaintiff had paid the agreed annual rent for the land as stipulated in the Lease Agreement.
(iii) that the Ntoe’s cabinet made a Newspaper publication in the Nigerian chronicle of June 6, 1992 to the effect that all undeveloped plots allocated between 1973 and 1990 within certain locations in Akim Qua Town including Eta Agbor Layout had been re-allocated.
8. Defendants aver further that the decision to make the newspaper publication re-allocating undeveloped plots of land in Akim Qua Town was party informed by the growing agitation by indigenes of the Akim Qua community about scarcity of land for capable and willing indigenes who wished to settled thereon and develop such land.
9. In view of the foregoing, the plaintiff was asked to re-apply for an alternative plot and that special concession would be given to her application. The Plaintiff has not done so.
Defendants plead the Minutes Book of the Ntoe’s cabinet meetings and shall rely particularly on pages 138-142 of the said Minutes Book. Defendants will also rely on the Nigerian Chronicle of June 6, 1992.
10. In answer to paragraph 10 of the statement of claim, 1st and 3rd Defendants state that they acted legitimately by placing Ekpe injunction on the said land having exercised their right of re-entry under the Lease Agreement hereinbefore referred to.
11. The Defendants admit plaintiff counsel’s letter dated 18th May, 1995 addressed to 3rd Defendant but deny the allegations of trespass made in paragraph 11 of the statement of Claim.
12. In answer to paragraph 12 of the statement of claim Defendants state that both the plaintiff’s deceased husband and the plaintiff had abandoned the plot and that no construction had been or was being carried out by her on the said plot.
13. Defendants and each of them deny paragraph 23(sic) of the statement of claim and aver that they are not liable to the claims in the said paragraph or at all. Defendants state further that the action is misconceived and baseless and an abuse of the court’s process.”
From the pleadings the appellants conceded that fate Justice E-B. James obtained a lease of the land and went into lawful possession until his demise. Thereafter his widow continued in possession until the 1sr Respondent in cabinet without recourse to the law court, purported to reallocate same to the 2nd Respondent. The 3rd Respondent invoked Ekpe Juju upon the land thus interfering with the right of Mrs. James to enjoy quiet possession of the land in dispute.
The appellants committed heinous diverse acts of trespass on the land in the lawful possession of the Respondent. I uphold the order of the learned trial Judge S.M. Anjor J., made at page 86 lines 25 to page 87 lines 1-20 of the record of proceedings to wit:
“In the final analysis I hold that based on the strength of the plaintiff’s case, she is entitled to judgment as her case has merit, in consequence of which judgment is hereby entered in plaintiff’s ‘E2’80” favour against the defendants in the following terms:
1. It is hereby declared that the plaintiff is entitled to the statutory night of occupancy in respect of all that parcel of land known as and called Plot 233, Block P. Eta Agbor   Layout, Akim Qua Town, Calabar.
2. It is further hereby ordered and directed that the defendants by themselves, their   servants, agents, watchmen, assigns howsoever to vacate forthwith from plot 233, Block P, Eta Agbor Layout, Akim Qua Town, Calabar covered by Certificate of occupancy No.CA/1527/82.
3. An order or perpetual injunction is hereby granted restraining the defendants, whether by themselves, their servants, Watchmen and agents or otherwise howsoever from further acts of trespass and or doing anything in consistent with the plaintiff’s proprietary interest in the piece or parcel of land lying and situate at Plot 233, Block P, Eta Agbor Layout, Akim Qua Town, Calabar covered by Certificate of occupancy No.CA/1521/92 and 4. The sum of N100,000.00 damages is hereby awarded for trespass against the defendants in favour of the plaintiff.”
For these and the fuller reasons proffered in the lead judgment I dismiss this appeal. Parties to bear their costs.