THE REGISTERED TRUSTEES OF THE ASSEMBLIES OF GOD MISSION V. ADAMU YUSUF MANCHIN
(2013)LCN/6079(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/J/78/2011
RATIO
“Black Law Dictionary 8th Edition, by Bryan A. Garner, defines an agent on page 68 in these words: “One who is authorized to act for or in place of another, a representative” In the case of Osigive vs. PSPLS Management Consortium Ltd. (2009) 3 NWLR Pt.1128 p.378 @ 404, the Supreme Court defined an agent as, one who is authorized to act for or in place of another, a representative. The word agent or agency denotes one who acts, a doer, accomplishes a thing or things for another.” Per BDLIYA, J.C.A.
“When is an act done or performed by an agent binding on the principal? In Rosenje vs. Bakare (1973) 5 S.C. 131 @ 140, the Supreme Court held that the authority of an agent to enter into a contract on behalf of a principal can be implied from the circumstances of the case before the Court. An agent need not be authorized in writing, and need, not always disclose the principal on whose behalf he acts, is so far as he loyally performs his fiduciary duties towards the principal. Tobi, J.C.A. (as he then was) put the position of the law more clearly in the case of Rean Ltd. vs. Aswani Textile Ltd. (1991) 2 NWLR Pt.179 p.639 @ 669 thus: “Where any person by word or conduct, represents or permits it to be represented, that authority to act as his behalf, he is bound by the acts of such person with respect to anyone dealing with him as an agent on the faith of such representation, to the same extent as if such other person had the authority which he was so represented to have. The person will be stopped from denying that the agent has such authority” PER BDLIYA, J.C.A.
“How is agency determined? In Best (Nig.) Ltd. vs. Black Wood Ltd. (1998) 10 NWLR Pt.569 p.253 @ 269, the Court held that it is an elementary principle of law that agency arises when one Party, called the principal, appoints another called, the ‘agent’, to stand in its stead. An agency can be created by any of the following, (i) Agreement whether contractual or not between the parties (ii) Ratification by the principal of the acts done on his behalf. (iii) Operation of law under the doctrine of agency of necessity. In Nigeria Progress Ltd. vs. NEI Corp. (1989) 3 NWLR Pt.102 68 @ 92 Nnamani, J.S.C. (of blessed memory) said: “A relation of agency is generally said to exist whenever one person called the “agent” has authority to act on behalf of another called the “principal” and consents to act, whether that relationship exists in any situation depends not on the precise-farminology employed by the parties to describe their relationship, but on the true nature of the agreement, or the exact circumstances of the relationship between the alleged principal and the agent. There is, therefore no doubt that an agency can arise impliedly from the nature and condition of the parties or from the circumstances of the case.” Per BDLIYA, J.C.A.
“…the law is trite that agency need not only be in writing or expressly stated in a document. It could be inferred from the conduct of the parties and or the circumstances of the case. This is the position of the law as enunciated in Niger Progress Vs. NEL Corp, (1989) 6 NWR Pt.1107 p.68 @ 92, when Nnamani J.S.C. (as blessed memory) said: “A relationship of agency is generally said to exist whenever one person called the agent has authority to act on behalf of another called the ‘principal’ and consents to act. Whether that relationship exists in any situation depends not on the precise terminology employed by the parties to describe their relationship, but on the true nature of the agreement; or the exact circumstances of the relationship between the alleged principal and agent. There is, therefore no doubt that an agency can arise impliedly form the nature and condition of the parties or form the circumstances of the case.” In REAN Ltd. Vs. Aswani Textiles Ltd. (1997) 2 NWLR Pt.179 P.638 @ 669, Tobi J.C.A. (as he then was) put it more clearly when the learned noble Lord, said: “Where any person by word or conduct represents or permits it to be represented, that another person has authority to act on his behalf; he is bound by the acts of such other person with respect to any one dealing with him as an agent on the faith of such representation, to the same extent as if such other person had the authority which he was so represented to have, The person will be stopped from denying that the agent has such authority.” It is now well settled that the authority of an agent to enter into a contract or act on behalf of a principal can be implied form the circumstances of the case before the Court. An agent needs not be authorized in writing and he needs not disclose the principal he acts on behalf of in so far as he loyally performs his fiduciary duties towards the principal. See Rosenje Vs. Bakare (1973) 5 S.C’ 131 @ 140 and Osigwe Vs. PSPLS Mgt. Consortium Ltd. (2009) 3 NWLR Pt.1128 P.378 @ 404.” PER BDLIYA, J.C.A.
“On the pleadings reproduced supra, who had the burden of proving whether the respondent did authorize Mohammed Yusuf Machine to sell the land to the appellant or not. Section 131(1) (2); 132 and 133 (1) and (2) of the Evidence that 2011, which are “ipssima verba” with the provisions of Section 134, 135 and 136 of the Evidence Act, 2004, which was the applicable provision at the time suit before the lower court was instituted and determined, provides as follows: “Section 131 (1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact, which he asserts shall prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” “132. The burden of proof in a civil suit or proceeding lies on that person who would fail if no evidence at all were given on either side” “133 (1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. (2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with” The provisions of Sections 137, 132 and 133 of the Evidence Act reproduced above, have been interpreted and applied by the superior courts of this country in a plethora of cases. For instance in Mani v. Shanono (2006) 4 NWLR pt.969 p.132 @ 158, this Court per BA’ABA (J.C.A.) quoting Eso, J.S.C. (of blessed memory) in Tewobude V. Akande (1998) NWLR 404 @ 408 said thus: “In civil cases, the general rule is that the burden of proof rests upon the party, whether plaintiff or defendant who substantially asserts the affirmative before evidence is gone into. This rule is clearly stated by Eso, J.S.C. in Tewogbade v. Meande (1968) (JSC) NWLR 404 AT 408 thus: The position therefore is this, in a civil case, the burden of proof lies on the person who will fail, assuming no evidence had been adduced on either side. Further, in respect of particular fact, this burden rests on the party against whom judgment will be given if no evidence were produced in respect of those facts. Once the party-produced the evidence that will satisfy a jury then the burden shifts on the other party against whom judgment will be given if no more evidence were adduced (underlining mine for emphasis)” Per BDLIYA, J.C.A.
“Exhibit ‘A’ is a certificate of occupancy issued to the respondent as evidence or proof of his title in the land in dispute. What is the legal effect of Exhibit ‘A’. Put it differently, can Exhibit ‘A’ be a conclusive proof of the respondent’s title to the land in dispute? There is no doubt, by the provisions of Section 9 of the Land Use Act, a Certificate of Statutory right of Occupancy can be issued to anyone who has been granted such right by a Governor of a State. However, such statutory right of occupancy is only a prima facie evidence of title in the land as could be seen in a number of decided cases by the Supreme Court and this Court. In Otukpo Vs. John (2012) 7 NWLR Pt.1299 p.357 @ 377 the Supreme Court held that a Certificate of Occupancy is a prima facie evidence of title or possession. It is not a conclusive proof of title to the land it relates to. The mere production of it by a party does not (ipso facto,) by itself, entitle the party to a declaration of title. Consequently, if it is successfully challenged, it can be nullified. Where there is evidence to show that it was wrongly issued or obtained, the Court can nullify it. See also Church Vs. Olowoseni (1990) 6 NWLR Pt.158 p.514; Adole Vs. Gwar (2008) 11 NWLR Pt.1099 p.562 @ 503 – 618; Labasebi Vs. Lagos Metal Ind. Ltd. (1973) 1 S.C. 1; Dzungwe Vs. Gbisher (1985) 2 NWLR pt. 9 P.528; Ogunleye Vs. Oni (1990) 2 NWLR Pt.135, 743; Olohnude Vs. Adeyoju (2000) 10 NWLR Pt. 676 P.562; Saude Vs. Abdullahi (1989) 1 NWLR Pt. 116 P. 387 and Agboola Vs. UBA Plc. (2011) 11 NWLR Pt. 1258 p.375 @ 408. A Certificate of right of Occupancy over a parcel of land can be challenged by a person who has paid a purchase price and put into possession by virtue of having acquired an equitable interest in such land. In Nsiegbe Vs. Mgbemena (2007) 10 NWLR Pt.1042 P.364 @ 297, the Supreme Court held that a purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument thereby acquired an equitable interest which is as good as a legal title. In Kachalla Vs. Banky (2006) 8 NWLR Pt. 982 P. 364 @ 388, Onoghen J.S.C. put it more clearly thus: “From the facts of the case, appellant acquired an equitable interest in the property when he Paid for same and a receipt issued as evidence of such payment leaving the formality of a conveyance with its attendant consent. d. Acts of long possession and enjoyment of the land; or e. proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.” PER BDLIYA, J.C.A.
“A plaintiff who has sold his land to a purchaser for valuable consideration cannot turn round to claim in an action for declaration of title or Right of Occupancy over or in the very land he had earlier sold to someone else. He has by such sale terminated or extinguished his own proprietary right or interest in that land. The doctrine of nemo dat quod non habet will come into play and will be invoked against such a plaintiff. Moreso, as in this case where the Appellant had earlier on acquired equitable interest coupled with possession of the land in subject matter of this appeal from the respondent. Therefore a subsequent acquisition of certificate of occupancy on the land earlier sold to the Appellant either by the Respondent or any other person for that matter cannot override or oust the equitable interest already acquired on the land by the Appellant. Such certificate of occupancy conveys nothing and it is devoid of any validity as it is null and void. To me Exhibit “A” the certificate of occupancy has no evidential value. See: Alhaji Aminu Dantosho v. Alhaji Abubakar Mohammed (2003) 6 N.W.L.R (part 817) 457 at 487 C-F per KATSINA-ALU JSC (later CJN RTD) who held: In a situation such as the one we have in the instant case, where two contesting parties trace their title in respect of the same piece of land to the same grantor, the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor because the grantor having successfully divested himself of title in respect of the piece of land in question by the first grant would have nothing left to convey to a subsequent grantee under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him. This is an obvious truism. The Governor in the present case is the common grantor. The respondent’s certificate of occupancy (exhibit 1) was issued on 11th August, 1982. By the time the appellant’s certificate of occupancy (exhibit 4) was issued on 7th October, 1982 over the same plot of land, the Governor no longer had anything at plot 79 Sharada Kano having not revoked the earlier grant exhibit 1 made to the respondent. See Tewogbade vs Mrs. Obadina (1994) 4 NWLR (pt.388) 326, (1994) 4 SCNJ 79. It goes without saying that the appellant got nothing from the Governor. I am therefore in complete agreement with the decision of the trial court and the Court of Appeal on this issue. The equity rule of “the first in time is stronger in law” is hereby enlisted.” PER IGE, J.C.A.
“Where issues for resolution in an appeal are formulated by the parties, an appellate court can adopt, reframe or formulate its own which are in its opinion proper for the determination of the appeal. See Aduku vs. Adejoh (1994) 5 NWLR pt.349 p.582 and Dang Vs. Gyang (1994) 8 NWLR pt.362 p. 315.” PER BDLIYA, J.C.A.
“When there are two documents in existence in respect of title to land, the one first in time prevails, and the subsequent one would be of no legal effect in conferring title in land. See Eleran Vs. Aderonpe (2008) 11 NWLR Pt.1097 p.50 @ 80 when this court held that were two or more competing documents of title upon which parties to a land dispute rely for their claim of title to such land, the doctrine of priorities pursuant to the maxim “qui prior est tempore, portier est jure” (meaning he who is first has the strongest right) dictates that the first in time takes priority. In the case of Kachalla Vs. Banki (2006) 8 NWLR Pt. 982 P. 364 @ 384, the Supreme Court held that in property law competing interests will generally rank according to the order of their creation, See also Ugbo Vs. Aburima (1994) 8 NWLR Pt. 506 p.570.” PER BDLIYA, J.C.A.
“In Agbolla Vs. UBA Plc. (2011) 11 NWLR Pt. 1288 p.307 @ 413 the Supreme Court held that mere production of a document of title or deed of conveyance over a piece of land does not automatically entitle a party to title to the land. Before the production of document of title is admitted as sufficient proof of ownership, the Court must satisfy itself that: (a) the document is genuine or valid (b) it has been duly executed, stamped and registered (c) the grantor has the authority and capacity to make the grant (d) the grantor has in fact what he proposes to grant, (e) the grant has the effect claimed by the holder of the instrument. See also Ayorinde Vs. Kuforiji (2002) 4 NWLR Pt.1024 p.341; Dosunmu Vs. Dada (2002) 13 NWLR Pt.783 P.1; Remaine Vs. Romaine (1992) 4 NWLR Pt.238 p.650; Kyari Vs. Alkali (2001) 11 NWLR pt.224 P. 412 and Darbur Vs. Abdullahi (2005) 7 NWLR pt.925 @ 181.” PER BDLIYA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEES OF THE ASSEMBLIES OF GOD MISSION Appellant(s)
AND
ADAMU YUSUF MANCHIN Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Plateau State High Court in suit No.PLD/P.31/2006 between The Registered Trustees of the Assemblies of God Mission vs. Adamu Yusuf Manchin, delivered on the 10th of October, 2008, by Justice D.G. Mann. The Respondent who was the Plaintiff before the lower court owned a parcel of land in Pankshin along Pankshin Mangu Road opposite Government Secondary School, Pankshin, adjacent Trinity Missionary College. He claimed he purchased the parcel of land from one Mr. Clement Yilkoba and Boba Bornkatda in 1994. He advertised the sale of the land to the Appellant who was the Plaintiff in the lower court. According to the Respondent they couldn’t agree on the price so the sale did not materialize. The appellant, on the other hand, asserted that Respondent intimated him that his brother would see him for negotiation on the sale of the land. Few days later the Respondent’s brother met the appellant and they negotiated for the sale of the land. The sale Agreement was entered into in the presence of witnesses. The sum of (Fifty Thousand Naira) N50,000.00 was the purchase price agreed upon by the Respondent’s brother and the Ngofong Ngas of Pankshin, among others.
After paying the sum of (Forty Five Thousand Naira) N45,000,00 a receipt was issued to him. He took possession of the parcel of land and erected structures such as football pitch, toilets and other facilities on the land. In 2005, he saw an officer, Mr. GAKUS from the Plateau State Ministry of Lands on the land. When he inquired what he was doing, the officer told him that the owner of the land invited him to survey it for the issuance of a Statutory Right of Occupancy. The Respondent went to the Land Registry to find out the claim of the Respondent to the land. He was referred to the Ngolong Ngas palace for further clarification. Both parties were at the Ngolong Ngas’s Palace for the resolution of the dispute several times but it was not resolved. The appellant claimed that the respondent approached him for the refundment of the purchase price, but he did not oblige.
The Respondent then entered the land with the intention of developing it. He was challenged by the appellant. The appellant reported the matter to the police. The police could not settle the dispute. The Respondent then took out a writ of summons against the appellant at the High Court of Plateau State claiming for a declaration of title to the land in dispute. On 10th of October, 2008, the lower court delivered its judgment whereby the declaration sought by the Respondent was granted with other reliefs sought. Dissatisfied with the judgment, the appellant appealed to this court vide a Notice of Appeal filed on the 13th of October, 2008 which was amended by leave of court and deemed filed on 18th of April, 2012. The Amended notice and the grounds of appeal filed on the 19th of April, 2012 consisting of four (4) grounds of appeal without the particulars, are as follows:
GROUND ONE (1)
The learned trial judge erred in law when he held that in this transaction, the appellants and respondents were not in consensus ad idem.
GROUND TWO (2)
The Learned trial judge erred in law when he held that radical little remained with the respondent by virtue of Exhibit “A” which was obtained in 2006 as against the earlier Sale Agreement (Ex remained with the respondent by virtue of Exhibit “A” which was obtained in 2006 as against the earlier Sale Agreement (Exhibits ‘E’ and F) of 1997.
GROUND THREE (3)
The learned trial judge erred in law when he held that Mohammadu Manchin did not act as an agent to the respondent because written authorization to that effect by the respondent to Muhammadu Manchin to sell the property on his behalf.
GROUND FOUR (4)
The learned trial judge erred in law when he held that the appellants were trespassers on this land and the title of which had been transferred to them voluntarily, absolutely and perpetually by way of a valid transaction in 1997, and over which they had been exercising various acts of ownership from them on until 2007 when the respondent emerged with his bizarre rival claim.
The appeal came up for hearing on the 6th of February, 2013. Samchi Esquire, of learned counsel, referred to the appellant’s Briefs of Argument which was deemed filed on the 26th of November, 2012. Same was adopted as the argument for the appellant in this appeal. In the Brief of Argument two (2) issues were formulated for determination in this appeal. They are:
(i) Whether by the express representation to the appellant and conduct in the transaction, the Respondent had not held out his brother Mohammed Yusuf Manchin as his agent with whom the Appellant could effectively and effectually purchase the disputed land, and thereby estopped from denying the bindingness thereof on him (Grounds 1 and 3).
(ii) whether the learned trial judge was right when he relied on Exhibit ‘A’ to hold that title in the disputed land remained with the Respondent despite the existence of Exhibits ‘E’ and ‘F’ through which the Respondent had transferred his title in the land to the Appellant (Ground 2).
Samchi Esquire, then urged the Court to allow the appeal, and set aside the judgment of the lower court. For the Respondent, Shaibu Esquire of learned counsel intimated the court that the Respondents Brief of Argument was filed on 11th December, 2012. He adapted same, as the argument of the Respondent in this appeal. Learned counsel intimated the court that Issue 2 of the appellant had been adopted, and another formulated by the Respondent, which is; whether given the evidence on record, Mohammed Yusuf can be held to have either express or implied authority of the Respondent to sell the land in issue to hold him out as the agent of the Respondent. Where issues for resolution in an appeal are formulated by the parties, an appellate court can adopt, reframe or formulate its own which are in its opinion proper for the determination of the appeal. See Aduku vs. Adejoh (1994) 5 NWLR pt.349 p.582 and Dang Vs. Gyang (1994) 8 NWLR pt.362 p. 315.
The issues for determination in this appeal are therefore reframed as follows:
(i) Whether by his express representation to the appellant and conduct in the transaction, the Respondent had not held out his brother, Mohammed Yusuf Manchin as his agent with whom the appellant could effectively and effectually purchase the disputed land, and thereby estopped from denying the abidingness thereof on him.
(ii) Whether given the evidence on record, Mohammed Yusuf can be held to have either, express or implied authority of the Respondent to sell the land in issue to hold him out as the agent of the Respondent, and
(iii) Whether the learned trial judge was right when he relied on Exhibit ‘A’ to hold that title in the disputed land remained with the Respondent despite the existence of Exhibits ‘E’ and ‘F’ through which the Respondent had transferred his title in the land to the Appellant.
RESOLUTION OF ISSUES:
ISSUES ONE AND TWO (1 AND 2)
Issue One(1) and Two (2) are similar in content and effect; same can be and are hereby taken together. Samchi Esquire, for the Appellant adumbrated they are four (4) cardinal points to be determined in this first issue, which are:
(a) whether in the circumstances, it can be held that Mohammed Yusuf Manchin, had the authority of the respondent to transact with the appellant regarding the land in dispute.
(b) whether the appellant received such representation from the respondent that Mohammed Yusuf has his authority to represent him in the transaction.
(c) whether the appellant believed and acted on such representation by the respondent, thereby transaction with Mohammed Yusuf Manchin and parted with its money in the belief that it had purchased the disputed land from the respondent; and
(d) Whether the respondent is not bound by the transaction perfected on his behalf by his brother, Mohammed Yusuf Manchin by which he sold the disputed land to the appellant.
Learned counsel pointed out that the following are not in dispute:
(i) Identity of the land, subject-matter of the dispute.
(ii) The respondent advertised and indicated his intention to sell the land to the appellant.
(iii) Mohammed Yusuf Manchin was the brother of the respondent.
(iv) The appellant met and discussed with the Respondent the sale of the land before meeting Mohammed Yusuf Manchin.
(v) The appellant paid the sum of (Forty Five Thousand Naira) N45,000.00 as purchase price of the land to Mohammed Yusuf Manchin, a receipt acknowledging the payment was issued, it is Exhibit ‘E’. Sale Agreement was executed thereafter, Exhibit ‘F’.
(vi) The appellant took possession of the land immediately after payment of the price and execution of the Agreement in 1997.
(vii) Years after the conclusion of the sale, the respondent sought to refund the purchase price, but it was rejected by the appellant.
(viii) The Respondent was aware that the appellant had purchased the land through his brother before filing the suit before the lower Court.
(ix) That Exhibit “A”, the Certificate of Occupancy No. PL.122624 issued to the Respondent in 2001 was after the transaction evidenced by Exhibits ‘E’ and ‘F’.
Learned counsel further submitted that the task before the appellant is to show that Mohammed Yusuf Manchin was an authorized agent of the respondent when the transaction of selling the land was conducted. It was pointed out that agency arises when one party called the principal appoints another called the agent to stand in its stead. The case of BEST (NIG) LTD. VS. BLACK WOOD HELDGE LTD. (1998) 10 NWLR (Pt.669) p.253 @ 265 was cited to buttress the submissions supra. For an agency relationship to be created, there must be: (1) agreement, contractual or otherwise by the parties (2) if no prior agreement subsequent ratification by the principal of the acts of the agent, (3) operation of law under the doctrine of agency of necessity. The case of Niger Progress Ltd. v. NET Corp. (1989) 3 NWLR pt.107 p.68 @ 12 was cited to reinforce the submissions supra. It was also submitted that agency relationship could be created by conduct or representation. The cases of Rosenje v. Bakare (1973) 5 S.C. 131 @ 140 AND REAN Ltd. in aid. vs. Aswani ile Industry (1991) 2 NWLR Pt.179 p.639 @ 669 were relied upon.
Learned counsel gave a resume of the facts and or events reading to the dispute between the appellant and the respondent and the evidence adduced by the appellant in support of his defence to the respondent’s claims before the lower court, and urged the court to hold that the appellant had effectively acquired interest in the disputed land. It was further pointed out that the learned trial judge’s findings and conclusions on page 103 of the record of appeal to the effect that there was no evidence, documentary or otherwise that the respondent did authorize his brother Mohammed Yusuf Manchin, to enter into the Sale Agreement with the appellant can not be correct. This is because, according to counsel, the learned trial judge overlooked the averment in paragraph 6 (f) of the amended Statement of claim while concentrating on paragraph 6 (b) only. It was his contention that had the learned trial judge adverted his mind to the averments in paragraph 6 (f) of the said statement of claim, he would not have arrived at the findings and conclusions on pages 103 – 104 of the record of appeal.
On the findings and conclusions of the learned trial judge that Exhibit ‘F’ does not show on the face of it that Mohammed Yusuf Manchin was authorized by the respondent to act on his behalf in the negotiation for the sale of the land, learned counsel submitted by that by the decision in the case of Rosenje v. Bakare (1973) 5 S.C. 131, it was not necessary to do so. In such a situation, Samchi Esq. pointed out, the Court is to consider the entire facts and circumstances of the case in deciding whether there was relationship of agency created or not, concluding, learned counsel urged the court to hold that the respondent authorized his brother, Mohammed Yusuf Manchin, to sell the land on his behalf which he did, the appellant had therefore effectively acquired ownership of the land. This issue be resolved in favour of the appellant, so urged learned counsel.
For the respondent, Shaibu Esquire, of learned counsel, contended that the evidence borne out by the record does not show that Mohammed Yusuf Manchin, had any express authority from the respondent to sell the land in dispute to the appellant. It was submitted that the evidence of DW1 on the introduction of the land to the appellant had no bearing on the agency of Mohammed Yusuf Manchin to the Respondent. Learned Counsel submitted that the evidence shows that Mohammed Yusuf held himself out as co-owner of the land with the Respondent. This is reinforced by the denial of the Respondent authorizing Mohammed Yusuf Manchin to sell the land to the appellant. It was further submitted that the evidence of DW3 to the effect that the respondent informed the appellant that he would send Mohammed Yusuf Manchin to negotiate the sale of the land can not be available in view of the evidence of D.w.1 on the same issue. The evidence of DWI and DWIII, it was submitted, are contradictory on material facts. Where evidence of witnesses are contradictory learned counsel submitted, such evidence can not be reliable. The court is to disregard such evidence. The case of Magaji Sons Vs. Cadbury (Nig). Ltd. (1985) 2 NWLR pt.7 p.393 was cited in aid.
Shaibu Esquire further submitted that it was DW2 that took Mohammed Yusuf Manchin to the Appellant’s leader, which is at variance with the testimony of DW3 that it was at the instance of the respondent that the said Mohammed Yusuf Manchin was taken to the appellant’s leader for negotiation. Learned counsel referred to Section 136 (1) of the Evidence Act on burden of proof and adumbrated that he who asserts has the burden of proof. The burden of proof is therefore on the appellant. Having alleged that the authority to sell the land was from the respondent to Mohammed Yusuf Manchin, it was necessary to call Mohammed Manchin as a witness. The appellant failed to call him being a vital witness. The evidence of DW1 and DW3 can not therefore be credible to prove that the Mohammed Yusuf Machin acted on the authority of the respondent in negotiating the sale of the land. It was also submitted that since the respondent denied giving any authority to Mohammed Yusuf Manchin to sell the land, the onus of proof shitted do the Appellant to prove so.
Learned counsel further submitted that the evidence of DW3 to the effect that the respondent gave documents of the land to Mohammed Yusuf Machin is not credible in view of D.W.1 evidence under cross-examination. Learned counsel argued that the case of Rosenji v. Bakare cited by counsel to the appellant can not be applied in this case because:
(i) In Rosenje’s case the defendant directly negotiated the price of the land with the plaintiff. In this case the respondent did not.
(ii) In Rosenje’s case the defendant and her husband were present during the negotiation and collected the purchase price. In this instant case it was not so.
(iii) In Rosenje’s case the husband called for Bank Teller to confirm payment before signing the sale document having been award of the transaction. It was not so in this case.
(iv) In Rosenje’s case the husband was called as a witness, testified. In this case the appellant failed to call Mohammed Yusuf Manchin to testify on the issue of authority to self the land by the Respondent.
(v) In this case Mohammed Yusuf Manchin never held himself and as an agent, rather he acted as owner of the land as per the evidence of DW1.
In view of the foregoing, Learned Counsel argued that had the appellant called Mohammed Yusuf Manchin, his evidence would have enabled that trial Court to resolve the issue of his agency one way or the other. The case of Rosenje supra would have been relevant. On the assertion of holding several meetings whereat the sale of the land was alleged to have been discussed between the parties, it was pointed out that the respondent was present at only one meeting per the evidence of DWIII (3). If there were several meetings the record of appeal and the evidence do not bear this out. Mohammed Yusuf Manchin can not therefore be an agent by conduct to the respondent.
In conclusion, learned Counsel contended that Mohammed Yusuf Manchin sold the land as an owner per the exhibit and the evidence of DW1. He was not an agent of the respondent in any way, unless there is evidence of authorization by the respondent. On the facts and the evidence before the trial Court agency of Mohammed Yusuf Manchi can not be inferred. The findings and decision of the lower Court that there was no evidence proving Mohammed Yusuf Manchin as an agent of the respondent can not be faulted. This Court has been urged not to interfere with the findings and the decision. This issue be resolved against the appellant, the court was so urged.
The crux of the issue under consideration is whether Mohammed Yusuf Manchi was an agent of the respondent in the negotiation and sale of the land in dispute to the appellant. The onus of proof is on he who asserts the positive. In this case at hand, who had the burden of proof regarding the alleged agency of Mohammed Yusuf Manchin. I think, a resort to the pleadings before the Lower Court would be of tremendous assistance in resolving this issue, paragraphs 7 and 8 of the Statement of claim and paragraphs 5 and 6(f) of the Amended Joint Statement of defence are relevant, The averments in these paragraphs are reproduced hereunder.
Firstly, paragraph 7 of the statement of claim are as follows
“7. The defendants purported to being the land from the plaintiff’s elder brother one Mohammed Yusuf. The Mohammed Yusuf purported to sell a piece of land covered by Pankshin Local Government R. of O No. 003 which also belongs to the plaintiff
“8. The plaintiff did not authorize the Mohammed to sell any of his plots”
Secondly, paragraphs 5 and 6 (f) of the joint statement of defence.
“5. The defendants deny paragraphs 6, 7 and 8 of the claim and shall at the hearing of this suit put the plaintiff to their strictest proof.”
“6(b) From the day until the sale agreement was finally executed on the 5/8/97, there were several meetings in respect of the purposed sale of the land between the plaintiff and his brother Mallam Mohammed Yusuf on the land and the defendants and several other persons who acted as their witnesses on the other.
At the hearing of this suit, defendants shall lead evidence to establish that they parted with their money (the consideration only after the terms conditions and their witnesses, including the Ngolong Pankshin (as he then was), had been executed and the land and its exact dimension had been clearly shown”
“6(f) The sale of this land was not only the direct consent and authorization by the plaintiff himself with the active participation of his brother Yusuf Muhammed Machin”
On the pleadings reproduced supra, who had the burden of proving whether the respondent did authorize Mohammed Yusuf Machine to sell the land to the appellant or not. Section 131(1) (2); 132 and 133 (1) and (2) of the Evidence that 2011, which are “ipssima verba” with the provisions of Section 134, 135 and 136 of the Evidence Act, 2004, which was the applicable provision at the time suit before the lower court was instituted and determined, provides as follows:
“Section 131 (1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact, which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
“132. The burden of proof in a civil suit or proceeding lies on that person who would fail if no evidence at all were given on either side”
“133 (1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with”
The provisions of Sections 137, 132 and 133 of the Evidence Act reproduced above, have been interpreted and applied by the superior courts of this country in a plethora of cases. For instance in Mani v. Shanono (2006) 4 NWLR pt.969 p.132 @ 158, this Court per BA’ABA (J.C.A.) quoting Eso, J.S.C. (of blessed memory) in Tewobude V. Akande (1998) NWLR 404 @ 408 said thus:
“In civil cases, the general rule is that the burden of proof rests upon the party, whether plaintiff or defendant who substantially asserts the affirmative before evidence is gone into. This rule is clearly stated by Eso, J.S.C. in Tewogbade v. Meande (1968) (JSC) NWLR 404 AT 408 thus:
The position therefore is this, in a civil case, the burden of proof lies on the person who will fail, assuming no evidence had been adduced on either side. Further, in respect of particular fact, this burden rests on the party against whom judgment will be given if no evidence were produced in respect of those facts. Once the party-produced the evidence that will satisfy a jury then the burden shifts on the other party against whom judgment will be given if no more evidence were adduced (underlining mine for emphasis)
Having regard to the provisions of Sections 131, 132 and 133 of the Evidence Act, and the principles of law enunciated in the case of Mani v. Shanumo supra which quoted with approval the position of the law adumbrated by Eso J.S.C. (of blessed memory) in Tewogbade v. Akande (1978) NWLR P.404 the burden of proving that Mohammed Yusuf Manchin acted with the authority of the respondent when he negotiated and transacted the sale of the land in dispute to the appellant lies on the appellant. Did the appellant discharge this burden having regard to the pleadings and the evidence adduced by the parties, at the trial before the lower court? In other words, was Mohammed Yusuf Manchin an agent of the respondent during the transaction for the sale of the land to the appellant?
At this juncture, I think it is apposite to know who is an agent? Then how is agency determined? Black Law Dictionary 8th Edition, by Bryan A. Garner, defines an agent on page 68 in these words:
“One who is authorized to act for or in place of another, a representative”
In the case of Osigive vs. PSPLS Management Consortium Ltd. (2009) 3 NWLR Pt.1128 p.378 @ 404, the Supreme Court defined an agent as, one who is authorized to act for or in place of another, a representative. The word agent or agency denotes one who acts, a doer, accomplishes a thing or things for another.
How is agency determined? In Best (Nig.) Ltd. vs. Black Wood Ltd. (1998) 10 NWLR Pt.569 p.253 @ 269, the Court held that it is an elementary principle of law that agency arises when one Party, called the principal, appoints another called, the ‘agent’, to stand in its stead. An agency can be created by any of the following,
(i) Agreement whether contractual or not between the parties
(ii) Ratification by the principal of the acts done on his behalf.
(iii) Operation of law under the doctrine of agency of necessity.
In Nigeria Progress Ltd. vs. NEI Corp. (1989) 3 NWLR Pt.102 68 @ 92 Nnamani, J.S.C. (of blessed memory) said:
“A relation of agency is generally said to exist whenever one person called the “agent” has authority to act on behalf of another called the “principal” and consents to act, whether that relationship exists in any situation depends not on the precise-farminology employed by the parties to describe their relationship, but on the true nature of the agreement, or the exact circumstances of the relationship between the alleged principal and the agent.
There is, therefore no doubt that an agency can arise impliedly from the nature and condition of the parties or from the circumstances of the case.”
When is an act done or performed by an agent binding on the principal? In Rosenje vs. Bakare (1973) 5 S.C. 131 @ 140, the Supreme Court held that the authority of an agent to enter into a contract on behalf of a principal can be implied from the circumstances of the case before the Court. An agent need not be authorized in writing, and need, not always disclose the principal on whose behalf he acts, is so far as he loyally performs his fiduciary duties towards the principal. Tobi, J.C.A. (as he then was) put the position of the law more clearly in the case of Rean Ltd. vs. Aswani ile Ltd. (1991) 2 NWLR Pt.179 p.639 @ 669 thus:
“Where any person by word or conduct, represents or permits it to be represented, that authority to act as his behalf, he is bound by the acts of such person with respect to anyone dealing with him as an agent on the faith of such representation, to the same extent as if such other person had the authority which he was so represented to have. The person will be stopped from denying that the agent has such authority”
On pages 102 – 104 of the record of appeal, the learned trial judge found and held as follows:
“It was submitted that the validity of Exhibit F is justifiable by the fact that several meetings were held between the plaintiff and the officials of 1st defendant before and after the sale of the land, and that the plaintiff knew about the sale. The implication of this submission is that plaintiff authorized the sale of the land by his brother, Mohammed Yusuf. Of course, there is no documentary evidence showing that the plaintiff authorized his brother to sell the land in dispute. It is nevertheless suggested that Mohammed Yusuf was so authorized or that he acted as the plaintiff’s agent in the seem to aver that the plaintiff authorized his brother to sell the land in dispute on his behalf. The relevant averment is found in paragraph 6(b) of the Amended statement of Defence. It is pertinent to reproduce the relevant portion of the paragraph 6(b) of the Amended Statement of Defence:
“6(b) from that day until the sale agreement was finally executed on 5/8/97, there were several meetings in respect of the proposed sale of the land between the plaintiff and his brother Mallam Mohammed Yusuf on the one land (sic) and the defendants and several other persons who acted as their witnesses on the other…”
In my view the above quoted averment does not state clearly that the plaintiff orally or by conduct authorized Mohammed Yusuf to sell the land in dispute on his behalf. It merely states that there were meetings between the plaintiff and his brother on the one hand and the defendants on the other. I therefore hold that the defendants never pleaded authorization. Rather, they pleaded that meetings were held to negotiate the sale of the land in dispute at which the plaintiff was accompanied by his brother, Mohammed Yusuf. Besides, the averment does not indicate that the plaintiff, subsequent to the transaction of 5/8/97, validated the sale as deposed to in the evidence of DW3 nor does the averment in anyway indicate that the plaintiff held out his brother as his agent.
Coming to the evidence, Exhibit F clearly shows that it was the plaintiff who purportedly transferred the title to the land to the 1st defendant but he did not sign the document as such. Also, Exhibit F does not show on its face that Mohammed Yusuf was acting as an agent of the plaintiff. Rather, he signed the document as one of the vendors, yet, DW3 testified that he had known the land in dispute to belong to the plaintiff two or three years before the 5/9/97.
By all accounts, I find as a fact that the sale of the and in dispute by the plaintiff’s brother, Mohammed Yusuf, to the 1st defendant on 5/8/97 was without the express authority of the authorization in any other way. At any rate, I doubt if the authorization could have been in any form other than in writing since the transaction relates to land.”
Was the learned trial judge right in coming to the conclusion that Mohammed Yusuf Manchin was not an agent of the respondent regarding the transaction in which the land in dispute was allegedly sold to the appellant. A resort to the pleadings and the evidence led by the parties before the trial court is imperative. Paragraphs 7 and 8 of the statement of claim and paragraphs 5 and 6 (b) and (f) of the Amended Joint statement of defence were reproduced herein before in this judgment. It is therefore not necessary to reproduce same here; suffice to have a resume of the evidence adduced by the parties in substantiating the said averments. The respondents as the plaintiff before the lower court testified as PW1, beginning on page 34 of the record of appeal. The relevant part of his evidence on this issue, that is, whether Mohammed Yusuf Manchin acted on his authority to sell the land to the appellant are as follows. “They said they had bought my land from my elder brother, Mohammed Yusufu Manchin. I did not give my elder brother authority to sell the land” see pages 34 of the record of appeal; on page 36 of the record he said, “when the defendants chased me from the land I reported the incident to the Ministry of Lands and Survey Pankhin Zone and to Ngolong Ngas. The Ngolong Ngas settled us. He said I should tell my elder brother to refund the money he was paid for the land to the defendants. My elder brother offered the money he was paid to the defendants, but they refused to collect it”.
Under cross-examination on page 40 of the record of appeal, he said, “yes, I remember I told this Court that the defendants claimed to have bought the land in dispute from my elder brother Mohammed Yusufu Manchin. Yes, that statement by the defendants was made before I filed the suit. My elder brother Mohammed Yusufu Manchin is alive. I did not inquire from my elder brother the truthfulness of the claim made by the defendants”.
On page 42 of the record of appeal he said…At the meeting at the Ngolong Ngas Palace, my elder brother Mohammed Yusuf Manchin was not present. I did not join my elder brother as defendant in this suit because I did not ask him to sell my land. That was the reason why I did not invite him to attend any of the meetings we held with the Ngolong Ngas”. On page 46 of the record of appeal he further said, “it is not true that I once met Damulak and others and discussed selling the land in dispute. Yes, I met Rev. Damulak and others on more than two occasions. These meetings were before I filed this suit. It is not true that I promised to give the defendants a different land from the one in dispute. I did not initiate settlement of this dispute before Ngolong Ngas in year 2005”.
The evidence adduced by the appellants who were the defendants at the lower court in support of their assertion that Mohammed Mohammed Manchin sold the land to them acting on the instruction or authority of the Respondent then plaintiff are thus: on page 50 of the record of appeal D.W.1 said, “I know one Mallam Yusuf Mohammadu Manchin. I also know Adamu Manchin……one day Yusuf M. Manchin came to me and said they had a parcel of land near the Assemblies of God District Headquarters, Pankshin. He did not tell me with whom he owned the land. Yusufu asked me to consult with my church people whether we would like to buy the land. I am sorry, I made a mistake. Yusuf told me that the land belonged to himself and his younger brother. He told me that they bought the land with intention of building a Filling Station but they were no longer interested in running the Filling Station. They therefore put it up for sale………I met my District Officers under the leadership of Rev. Samuel Damulak. I brought the said Yusufu on a subsequent day to the District Leadership of our Church. I told them why I came. It was with Yusufu Manchin. After speaking with Yusuf, the leaders discovered that Yusuf’s younger brother had earlier came to them and offered the same land for sale. Yusuf took us to the land in question. After going round, we went back to the office. The Church leaders and Yusuf started bargaining the price of the land. They could not arrive at a compromise. Yusuf insisted on being paid N60,000.00. While the Church offered N50,000.00 we left on the understanding that Yusuf would go and consult his brother and whatever he agreed with his brother he would tell me. Later, Yusuf came to me and said he and his brother had agreed on the price for the land. I informed my Superintendent and he agreed me to see Yusuf to come over and collect the purchase price for the land I told Yusuf and he went and collected the money”.
Under cross-examination on page 52 of the record of appeal, he said “Mohammed Yusuf Manchin never showed me any authority from his brother to sell the land….Mohammed Yusuf Machin did not show us any document of title to the land in dispute”.
DW2, on page 52 of the record of appeal testified that: “I know Adamu Manchin, the plaintiff in this case. I also know Mohammed Yusuf Manchin. I know their relationship. Mohammed Yusuf Manchin is elder brother of Adamu Yusuf Manchin…….sometime in 2004 I was served with a summons from a lawyer. With that I contacted our own lawyer. Our lawyer replied. That was the time I came to know the plaintiff and his brother Mohammed Yusuf Manchin because they came to our headquarters. I invited my predecessor to come since it was during his time that the Church bought the land. At the District Headquarters Rev. Damulak, Rev. Bitrus Gutap, Rev. Jeremiah Longe, Rev. Musa Jatau, Rev. Faven Dataku and I met with the plaintiff where he apologized for having gone to a lawyer and counsel him to write that typed of letter to us.
On page 55 of the record of appeal, D.W. 3 testified”. I know the plaintiff in this case and his elder brother Mohammed Manchin…..I knew the plaintiff because he has a piece of land where our Trinity College Pankshin is located. The plaintiff also had a piece of land there which he said he intended to develop into a filling station……One day the plaintiff came to me in 1997 and said he no longer wishes to build the filling station on the land and that he was prepared to sell it to us if we wanted it.
…….the plaintiff came back about 2-3 weeks to find out if we were prepared to buy the land, and I said yes, we were. The plaintiff then said we would send his elder brother by name Mohammed to show the dimensions of the land and then we would bargain with him…….when Mohammed come, he introduced himself as the brother of the plaintiff……we sat down and bargained the price of the land. Mohammed wanted us to pay N60,000.00, while we offered N50,000.00, Mohammed told us he would go back to inform his brother Adamu how far we had bargained. After some months, Pastor Emmanuel Ogbatu came to inform me that the plaintiff and his brother Mohammed wanted us to fix a date on which they would come collect the N50,000,00 we had offered. We gave a date. On that date Mohammed come with someone whose names I have forgotten. On that day too, we invited our Ngolong Pankshin by name Joshua Yilzaka Dimlong. We then asked Mohammed to give us the documents of title so that we may pay him…..we then told Mohammed since the documents of title were not complete as he had earlier told us, we would then be offering to pay only N40,000.00. Mohammed refused to collect the money……The chief intervened by saying we should add N40,000.00………we paid N45,000.00. Mohammed issued us a receipt …….. After the payment, Mohammed left………,.After some days we were having a meeting of the officials of the Church. The plaintiff asked us why we did not pay the N50,000.00 earlier agreed. We told him that the document were not as complete as we where earlier told. The plaintiff agreed then left. ……The plaintiff said he did not sell the plot to us but that it was his brother who sold it to us.
Under cross-examination on page 63 of the Record of appeal he said “when Mohammed came, he did not show us any letter of authority from the plaintiff other than the file he brought containing site plan, R of O and design of the Filling Station…..Plaintiff never came with Mohammed to collect the money from us after we gave a date for its collection. D.W.4 testified as follows on page 65 of the record of appeal, “I know Exhibit F. My signature” on Exhibit F, Exhibit F is a sale Agreement in respect of a land which transaction I am much aware of. The land was sold do Adamu Yusuf by the farmers which I endorsed….. I endorsed Exhibit F in respect of the sale of the land by Adamu Yusuf Manchin obtained my consent in buying the land for a Filling Station but later resold the land to Assemblies of God. After signing Exhibit F and payment was made, the Rev. in charge of Assemblies of God came to me to say that Adamu Yusuf Manchin had sold the land to a third party. I invited the parties but Adamu Yusuf Manchin did not show up.
The findings and conclusions arrived at by the Learned trial judge on pages 102 – 104 that there are no pleadings and evidence that the respondent did authorize Mohammed Yusuf Manchin to sell the land in dispute to the appellants was because:-
(i) Paragraph: 6, (b) of the Amended joint of defence does not contain averments regarding authorization of Mohammed Yusuf Manchin to sell the land on behalf of the respondent. In short, the issue of Mohammed Yusuf Manchin being an agent of the respondent has not been made an issue by the said averments.
(ii) Exhibit ‘F’ does not contain anything on the authorization of Mohammed Yusuf to sell the land for and on behalf of the respondent.
(iii) There is no documentary or oral evidence to show that the respondent authorized Mohammed Yusuf Manchin to sell the land,
(iv) The pleadings and the evidence before the trial Court can not warrant the conclusion that Mohammed Yusuf Manchin had or implied or constructive authority to sell the land to the appellant on behalf of the respondent.
On whether there are averments in the pleadings of the appellant on the authorization of Mohammed Yusuf Manchin to sell the land, I think paragraph 6 (f) of the Amended Joint Statement of defence is apt. The averment in the said paragraph is as follows:
“6(f) The sale of this land was not only the direct consent and authorization by the plaintiff himself but with active participation of his brother Yusuf Mohammed Manchin”.
The learned trial judge was there in error when he found and conclusion that there was no pleadings on the issue of whether Mohammed Yusuf Manchin action as an agent of the respondent or not. If the learned trial judge had adverted his mind to the averment in paragraph 6(f) of the Amended Joint Statement of Defence he would have made a different finding or arrived at a different conclusion than those on pages 102 – 144 of the record of appeal. As to Exhibit ‘F’ not containing express or implied authority for the sale of the land, I agree in toto with the learned trial judge, but, then, the law is trite that agency need not only be in writing or expressly stated in a document. It could be inferred from the conduct of the parties and or the circumstances of the case. This is the position of the law as enunciated in Niger Progress Vs. NEL Corp. (1989) 6 NWR Pt.1107 p.68 @ 92, when Nnamani J.S.C. (as blessed memory) said:
“A relationship of agency is generally said to exist whenever one person called the agent has authority to act on behalf of another called the ‘principal’ and consents to act. Whether that relationship exists in any situation depends not on the precise terminology employed by the parties to describe their relationship, but on the true nature of the agreement; or the exact circumstances of the relationship between the alleged principal and agent.
There is, therefore no doubt that an agency can arise impliedly form the nature and condition of the parties or form the circumstances of the case.”
In REAN Ltd. Vs. Aswani iles Ltd. (1997) 2 NWLR Pt.179 P.638 @ 669, Tobi J.C.A. (as he then was) put it more clearly when the learned noble Lord, said:
“Where any person by word or conduct represents or permits it to be represented, that another person has authority to act on his behalf; he is bound by the acts of such other person with respect to any one dealing with him as an agent on the faith of such representation, to the same extent as if such other person had the authority which he was so represented to have, The person will be stopped from denying that the agent has such authority.”
It is now well settled that the authority of an agent to enter into a contract or act on behalf of a principal can be implied form the circumstances of the case before the Court. An agent needs not be authorized in writing and he needs not disclose the principal he acts on behalf of in so far as he loyally performs his fiduciary duties towards the principal. See Rosenje Vs. Bakare (1973) 5 S.C. 131 @ 140 and Osigwe Vs. PSPLS Mgt. Consortium Ltd. (2009) 3 NWLR Pt.1128 P.378 @ 404.
In order to be entitled to the resolution of the issue under consideration (i.e. whether Mohammed Yusuf Manchin acted as an agent of the respondent when the land in dispute was sold to him) the appellant has the task to demonstrate by evidence, direct or circumstantial, that the respondent had given him reason to believe that Mohammed Yusuf Manchin was his authorized agent with whom he could and did transact in respect of the disputed land. Having regard to the relevant pleadings and the evidence adduced by the parties at the trial before the lower Court, the following were established:
(a) The respondent owned or had title in the land in dispute before the alleged sale to the appellant having purchased same from villagers.
(b) The respondent advertised the sale of the land to the appellant in 1997.
(c) The respondent intimated the appellant that his brother would go to him for further negotiation for the sale of the land to him.
(d) Mohammed Yusuf Manchin, did visit the appellant and they discussed the sale of the land.
(e) Mohammed Yusuf Manchin discovered that the appellant knew of the proposed intention of the respondent to sell the land, and that his brother Adamu Yusuf Manchin, had an earlier discussion with the appellant.
(f) The appellant, Mohammed Yusuf Manchin, and others negotiated and agreed at a price of N50,000.00 for the land.
(g) An agreement for the sale of the land was executed and signed by the appellant Mohammed Yusuf Manchin and the Ngolong Ngas of Pankshin. It is Exhibit ‘F’.
(h) The purchase price of N45,000.00 was paid to Mohammed Yusuf Manchin, and receipt issued. It is Exhibit ‘E’.
(i) The appellant took position of the land, started putting up of structures such as football pitch, latrine etc on the land.
(j) Sometime in 2001, the respondent entered the land claiming that he owned it having purchased same from villagers in Pankshin.
(k) The respondent processed and obtained a statutory right of occupancy from the Ministry of Land and Survey in 2001.
Learned counsel to the respondent, Shaibu Esquire, was of the view that the principles of law on agency enunciated in the case of Rosenje Vs. Bakare (1973) ALL NWR P. 459 do not apply to the case at hand, can not be sustained notwithstanding the reasons he proferred. In my view what is of greatest importance in determining whether a person acted as an agent of another person or not, the facts and circumstance of the case, including the acts and conducts of the parties are germane. The determination of the existence of an agent is therefore objective, not subjective. Though there was no express authorization of the sale of the land in dispute to Mohammed Yusuf Manchin, the respondent had by his actions presented him to the appellant as his agent in the transaction leading to the sale of the land in dispute. This is issue is hereby resolved in favour of the appellant.
ISSUE THREE (3)
Whether the learned trial judge was right when he relied on Exhibit ‘A’ to hold that title in the disputed land remained with the respondent, despite the existence of Exhibits ‘E’ and ‘F’ through which the respondent had transferred his title in the land to the appellant:
On this issue, Samchi Esquire, of learned counsel to the appellant submitted that the lower Court was in error when it held that Exhibit ‘A’, the statutory right of Occupancy issued to the respondent by the Ministry of Land of Survey, Plateau State, operates to defeat Exhibit ‘F’, the sale agreement, when in fact the said Exhibit ‘F’ was in existence before Exhibit ‘A’ was issued. Learned counsel further submitted that it is necessary to consider the circumstances in which the two Exhibits were issued in order to ascertain the legal validity of each. It was pointed out that Exhibit ‘E’ the receipt issued to Mohammed Yusuf Manchin the elder brother of the respondent who had authorized him to negotiate with the appellant, was dated 5th August, 1997. The said Exhibit has the appellant’s name and it has been signed by Mohammed Yusuf Manchin on behalf of the appellant. It is therefore binding on the appellant. The case of Rosenje Vs. Bakare (1973) S.C. P. 131 was cited to buttress the submissions supra.
Learned counsel further contended that Exhibit ‘F’ is the sale agreement for the sale of the land between the appellant and Mohammed Yusuf Manchin, the representative of the respondent. On it is written that the appellant can proceed with the processing of the Certificate of Occupancy started by the respondent. It is worthy of note that the numbers on the said exhibit ‘F’ are same with those on Exhibit ‘A’. That after the issuance of Exhibit ‘F’ by the respondent’s representative, the appellant took possession of the land, Notwithstanding this, the respondent did all he could to frustrate the processing of the said Certificate of Occupancy, only to turn round to process and obtained same. In view of the foregoing, learned counsel submitted, the trial court would have arrived at a different decision on the validity of Exhibit “F” if it had adverted its mind to the circumstance in which Exhibit ‘A’ was issued to the respondent. The case of Rosenje Vs. Bakare supra, was relied upon.
Learned counsel adumbrated that Exhibit ‘A’ was issued on 12th July, 2006, almost ten (10) years after the transaction between the appellant and respondent’s representative. It was therefore issued when title in the said land had already been transferred to the appellant. Therefore, it was contended, Exhibit ‘A’ can not be valid in law. Section 34 of the Land Use Act was cited in aid. Even if the appellant had not acquired legal title, it was submitted, he had acquired an equitable interest in the land having paid the purchase price and taken possession of it. The case of Keyamo Vs. Folorunso (2011) 9 NWLR Pt.1252 p.209 @ 238 was cited in support of the submissions, supra.
The existence of Exhibit ‘A’ on hand, and that of Exhibits ‘E’ and ‘F’ on the other, it was submitted, clearly indicated there are more than one title document in existence, the one first in time prevails. In this case at hand, learned counsel contended, Exhibits ‘E’ and ‘F’ were in existence before the issuance of Exhibit ‘A’. Where two conflicting title documents exist, the law is that the first in time prevails. The case of Keyamo Vs. Folorunso (supra) was cited in aid.
Learned counsel pointed out that the reason given by the trial Court that the respondent did not sign Exhibit ‘F’, therefore it was not valid and binding on him can not be correct in law in view of the document having been signed by witnesses who were present at the material time. What is more, it was submitted, having put the appellant into possession of the land other paying the purchase price, the appellant had acquired at least an equitable interest in the land. The equitable interest of the appellant was prior to Exhibit ‘A’. If the learned trial judge had adverted his mind to this principle of law, it was submitted, he would not have arrived at the decision he did in respect of the validity of Exhibit ‘F’ or rather preferring Exhibit ‘A’ than Exhibit ‘F’, The case Shukka Vs. Abubakar, 2012, NWLR Pt.1291 p.497 was cited to buttress the submissions supra.
Samchi Esguire further submitted that the equitable interest acquired by the appellant coupled with the long possession of the land, from 1997 to the institution of the suit by the respondent before the lower Court the interest acquired by the appellant is as good as legal interest. The issuance of Exhibit ‘A’ can not therefore invalidate the legal status of Exhibit ‘F’. The cases of Keyamo Vs. Fodoransi Supra at page 239; Ikenne Vs. Wachuchukwue (1991) 2 NWLR Pt.172 P. 214 and Obijuru Vs. Ozims (1985) 2 NWLR Pt.6 p.169 were cited in aid. Learned Counsel further contended that the existence of a statutory Certificate of Occupancy is not conclusive proof of title to land. It is only a prima facie evidence of title to the land described therein. Whenever there is Certificate of Occupancy, the Court has a duty to examine it to see if it was properly issued in accordance with the relevant provisions of the Land Use Act, and other laws. The case of Okunowo Vs. Mogaji (2011) 3 NWLR pt.1235 p. 434 was cited in support. Learned counsel urged this Court to examine Exhibit ‘A’ critically before relying on it in the resolution of this issue. Concluding, Learned Counsel submitted that Exhibits ‘E’ and ‘F’ were issued before Exhibit ‘A’. By the time Exhibit ‘A’ was issued, the appellants had acquired an equitable interest in the land in dispute. There was therefore no title left to be vested in anyone notwithstanding the issuance of Exhibit ‘A’, The Court has been urged to resolve this issue in favour of the appellant.
Shaibu Esquire, of learned Counsel to the respondent was of the view that the trial Court was absolutely right to have held that the certificate of occupancy, Exhibit ‘A’ had defeated any interest or title of the appellant in the land in dispute, It was his submission that the respondent was not a party to Exhibits ‘E’ and ‘F’, hence he can not be bound by it. It was further argued that Mohammed Yusuf Manchin signed Exhibit ‘E’ and ‘F’ as a vendor selling a property he did not own or possess. On the principle of law enunciated in the case of Keyamu Vs. Folorunso (2011) 9 NWLR pt.1252, learned Counsel submitted that they are not applicable to this case at hand. In this case, it was pointed out; the respondent did not sell land to the appellant. He did not sign Exhibit ‘F’. It was Mohammed Yusuf Manchin that signed it. He had no title in the land he sold to the appellant. He couldn’t have given what he did not have. The case of Ibrahim Vs. Osunde (2009) 6 NWLR Pt.1137 p.382 was cited to buttress the submissions supra.
Learned Counsel submitted that the appellant had admitted that the land in dispute belonged to respondent before the purported sale of it to him. Having admitted so, the onus of proving that the respondent transferred his title in the land to him lies on him. Having not discredited Exh. ‘A’, the legal title in the land remains with the respondent. It was contended further that, an equitable interest can not defeat a legal title of an owner, unless the purchase price was paid to the vendor. The case of Monkoru Vs. Odili (2010) 2 NWLR Pt.1179 p.419 was cited in aid.
It was Learned Counsel’s view that in view of the authority of Monkoru Vs. Ochili supra coupled with Exhibit ‘F’ not having been signed by the respondent, the equitable interest acquired by the appellant, if any, can not defeat the legal title of the respondent by virtue of Exhibit ‘A’. The Court was then urged to hold that Exhibits ‘E’ and ‘F’ can not defeat the legal title of the respondent over the land in dispute. This issue be resolved against the appellant.
On page 102 of the record of appeal, the learned trial judge found and held as follows:
“On the face of Exhibit F, the defendants, have failed to discharge the onus of proof that the plaintiff transferred his title to the land in dispute to the 1st defendant. This is because the plaintiff himself never signed the document transferring title to the 1st defendant. Nevertheless it was submitted that there was a valid grant because of the several meetings between the plaintiff and the defendants before and after the sale and the fact that the plaintiff knew that his brother had sold the land coupled with fact that the plaintiff failed or neglected to either join his brother as a defendant to this suit or to call him as a witness.
Again on pages 104 to 105 of the record of appeal, the learned judge of the lower Court found and held thus:
“Coming to the evidence Exhibit ‘F’ clearly shows that it was the plaintiff who shows that it was the plaintiff who purportedly transferred the title to the land to the 1st defendant but he did not sign the document as such. Also, Exhibit F does not show on its face that Mohammed Yusuf was adding as an agent of the plaintiff. Rather, he signed the document as one of the vendors. Yet, DW 3, Testified that he had known the land in dispute to belong to the plaintiff two or three years before the 5/8/97″
……I therefore conclude that Exhibit F relied on by the defendants to prove a valid grant of the land in dispute is bereft of consensus idem between them and the plaintiff, acknowledged awareness of the land in dispute. I hold that the defendants bought from Mohammed Yusuf what he did not have to sell. The applicable maxim is: nemo dat qest non habet. In the circumstances, I hold that the defendants have failed to discharge the onus that the plaintiff transferred his interest or title to the land in dispute to the 1s defendant. It follows that as between Exhibit ‘A’ tendered by the plaintiff and Exhibits E and Exhibit F ‘A’, which is the certificate of occupancy granted to the plaintiff order the land in dispute operates to defeat Exhibit F.”
Was the learned trial judge right in his findings, conclusions and decisions as recapitulated supra. The law is trite, that in civil proceedings he who asserts the existence of a state of things or otherwise of facts has the burden of proof. Section 131, 132 and 133, of the Evidence Act, 2011 refer. See Agboola Vs. UBA Plc. (2011) 11 NWLR Pt.1258 P.375 @ 402; I Mena Vs. Rubinson (1979) 3 J.C.I. Ave Vs. Adisa (1907) SCNBR 260 Elias Vs. Disus (1962) 1 SCNHL p.365. What are the pleadings of the parties in the suit filed by the respondent claiming a better title than that of the appellant to the land in dispute. Paragraphs 5 to 8 of the respondent’s statement of claim and paragraphs 3 to 7 of the Joint Amended Statement of defence are germane. The averment in these paragraphs of the respective pleadings are reproduced hereunder for easy reference and appreciation. Firstly paragraphs 5 – 8 of the statement of claim of the respondent then plaintiff.
4. The plaintiff is the owner of the piece of land lying and situate in Pankshin along Pankshin Mangu Road opposite G.S.S. Pankshin adjacent Trinity Missionary College Pankshin covered with Plateau State Certificate of Occupancy No. PL.22624. The certificate of occupancy is hereby pleaded and shall be relied on at trial.
5. The plaintiff bought the piece of land from Mr. Clement Yilkobi and Boba Bonkauda in 1994. The sale agreement between the vendors and the plaintiff is hereby pleaded.
6. The plaintiff sometimes intended to sell the land in dispute and the 1st defendant signified interest but did not agree on the price and the plaintiff declined the sale.
7. The defendants purport to buy the land from the plaintiff’s elder brother one Mohammed Yusuf. The Mohammed Yusuf Purported to sell a piece of land covered by Pankshin Local Government R. of O. 003 which also belongs to the plaintiff.
8. The plaintiff did not authorize the Mohammed to sell any of his plots.
Secondly, paragraphs 2 to 7 of the Amended Joint statement of Defence of the appellants, then defendant:
2. The Defendants deny paragraph 4 of the claim, and shall, at the hearing of this suit, put the Plaintiff to their strictest Proof.
3. In further answer to paragraph 4 of the claim, the defendants categorically state here that whereas the plaintiff had on 5/8/97 voluntarily transferred the title to this land by way of an outright sale of the defendants, the subsequent fraudulent acquisition of C of O no. PL.22624 in his name in respect of the same land on the 15th day of May, 2001 can not only be misleading but a conscious and deliberate display of absolute dishonesty. At the hearing of this suit, the defendants shall lead evidence to show that the C of O. No. PL. 22624 issued in the name of the plaintiff is a worthless paper that cannot carry any legal weight whatsoever.
4. The defendants admit paragraph 5 of the claim and say further that they also bought the adjoining land, upon which their Trinity College is located, from the same persons referred therein.
5. The defendants deny paragraphs 6, 7 and 8 of the claim and shall, at the hearing of this suit, put the plaintiff to their strictest proof.
6. In further answer to paragraphs 6, 7 and 8 of the claim, the defendants state that:
a. Sometime in 1997, while they were working on their own portion of the land on which their Trinity College had ealier on been established, the plaintiff arrived and expressed his intention to sell his own portion which is the land now in dispute, or the ground that his earlier plan to build a petrol station thereon was no longer feasible.
b. from that day until the sale agreement was finally executed on the 5/8/97, there were several meetings in respect of the proposed sale of the land between the plaintiff and his brother Mallam Mohammed Yusuf on the one land and the defendants and several other persons who acted as their witnesses on the other.
At the hearing of this suit, defendants shall lead evidence to establish that they parted with their money (the consideration) only after the terms, conditions and their witnesses, including the Ngolong Pankshin, (as he then was), had been ascertained and the land and its exact dimension had been clearly shown.
c. When they purchased this land on the 5/8/97, they were directed in the sale agreement to follow up and complete the process of acquiring C of O No. 22624 already started by the defendant; in their own name.
d. the process of acquiring C of O No.22624 referred to in paragraph (6C) above was deliberately frustrated by the plaintiff himself, eventually.
e. from the onset, the defendants made it abundantly clear that they were purchasing the land to establish a football field thereon for the students of Trinity College and, indeed, on this land, there has been this football field with toilet for the students recreation and convenience.
f. (8) the sale of this land was not only the direct consent and authorized by the plaintiff himself but with active participation of his brother Yusuf Muhammed Manchin.
7. That the defendants deny paragraph 9 of the claim and shall, at the hearing of this suit, put the plaintiff to its strictest Proof.
Did the respondent, then plaintiff prove his title to the land in dispute by any of the well known ways or methods of proving title to land as enunciated in the notorious case of Ikumagba Vs. Idundun (1976) 9 – 10 S.C. 227? Which are:
a. By traditional evidence; or
b. Production of documents of title, or
c. Acts of ownership extending over a sufficient length of time, numerous and positive to warrant the inference that the Person is the true owner; or
In Agbolla Vs. UBA Plc. (2011) 11 NWLR Pt. 1288 p.307 @ 413 the Supreme Court held that mere production of a document of title or deed of conveyance over a piece of land does not automatically entitle a party to title to the land. Before the production of document of title is admitted as sufficient proof of ownership, the Court must satisfy itself that:
(a) the document is genuine or valid
(b) it has been duly executed, stamped and registered
(c) the grantor has the authority and capacity to make the grant
(d) the grantor has in fact what he proposes to grant,
(e) the grant has the effect claimed by the holder of the instrument. See also Ayorinde Vs. Kuforiji (2002) 4 NWLR Pt.1024 p.341; Dosunmu Vs. Dada (2002) 13 NWLR Pt.783 P.1; Remaine Vs. Romaine (1992) 4 NWLR Pt.238 p.650; Kyari Vs. Alkali (2001) 11 NWLR pt.224 P. 412 and Darbur Vs. Abdullahi (2005) 7 NWLR pt.925 @ 181.
Exhibit ‘A’ is a certificate of occupancy issued to the respondent as evidence or proof of his title in the land in dispute. What is the legal effect of Exhibit ‘A’. Put it differently, can Exhibit ‘A’ be a conclusive proof of the respondent’s title to the land in dispute? There is no doubt, by the provisions of Section 9 of the Land Use Act, a Certificate of Statutory right of Occupancy can be issued to anyone who has been granted such right by a Governor of a State. However, such statutory right of occupancy is only a prima facie evidence of title in the land as could be seen in a number of decided cases by the Supreme Court and this Court.
In Otukpo Vs. John (2012) 7 NWLR Pt.1299 p.357 @ 377 the Supreme Court held that a Certificate of Occupancy is a prima facie evidence of title or possession. It is not a conclusive proof of title to the land it relates to. The mere production of it by a party does not (ipso facto,) by itself, entitle the party to a declaration of title. Consequently, if it is successfully challenged, it can be nullified. Where there is evidence to show that it was wrongly issued or obtained, the Court can nullify it. See also Church Vs. Olowoseni (1990) 6 NWLR Pt.158 p.514; Adole Vs. Gwar (2008) 11 NWLR Pt.1099 p.562 @ 503 – 618; Labasebi Vs. Lagos Metal Ind. Ltd. (1973) 1 S.C. 1; Dzungwe Vs. Gbisher (1985) 2 NWLR pt. 9 P.528; Ogunleye Vs. Oni (1990) 2 NWLR Pt.135, 743; Olohnude Vs. Adeyoju (2000) 10 NWLR Pt. 676 P.562; Saude Vs. Abdullahi (1989) 1 NWLR Pt. 116 P. 387 and Agboola Vs. UBA Plc. (2011) 11 NWLR Pt. 1258 p.375 @ 408.
A Certificate of right of Occupancy over a parcel of land can be challenged by a person who has paid a purchase price and put into possession by virtue of having acquired an equitable interest in such land. In Nsiegbe Vs. Mgbemena (2007) 10 NWLR Pt.1042 P.364 @ 297, the Supreme Court held that a purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument thereby acquired an equitable interest which is as good as a legal title. In Kachalla Vs. Banky (2006) 8 NWLR Pt. 982 P. 364 @ 388, Onoghen J.S.C. put it more clearly thus:
“From the facts of the case, appellant acquired an equitable interest in the property when he Paid for same and a receipt issued as evidence of such payment leaving the formality of a conveyance with its attendant consent.
d. Acts of long possession and enjoyment of the land; or
e. proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
The evidence adduced by the respondent who was the plaintiff in the lower Court in support of the averments in paragraphs 4 – 8 of the Statement of Claim are thus – That the respondent purchased the land in dispute from farmers in Pankshin with the approval of the Ngolong Ngas of Pankshin. See Exhibit ‘G’. He purchased the land for a Filling Station. That sometime in 1996 – 1997 or thereabout he decided not to build the Filling Station. He advertised the sale of the land to the appellant. They could not agree on the purchase price. Years later he decided he pursue the processing of the Certificate of Occupancy with the Ministry of Land and Survey, Plateau State which he started earlier on. After the survey of the land, a Certificate of Occupancy was issued to him. It is exhibit ‘A’ which is the document being the basis of his seeking for a declaration of title over the land in the suit before the lower Court. In view of the foregoing, it is not in doubt that the respondent was relying on the said Certificate of Occupancy, Exhibit ‘A’, as the document of title over the land in dispute.
The law is well-settled as was stated in the case of Ikumagba Vs. Idundun supra, that production of title documents is one of the ways or method of proving title to land. However, there are certain limitations or inhibitions to the general proposition of the law that production of title documents can prove that the person producing such document has title over the particular land.
The law is also settled that such equitable interest so acquired would defeat the legal estate thereto with knowledge of the equitable interest in the property.”
The learned noble Lord, went on to quote the case of Owosho v. Dada (1984) 7 S.C. 149 @ 173, wherein the Supreme Court said:
“The law has been well and long settled that where a person pays for land and obtains receipt for the payment followed by his going into Possession and remaining in possession, an equitable interest is created for him in the land, such as would defeat the title of a subsequent legal estate purchaser with knowledge of the equitable estate in the land. That was affirmed in to be the law in the case of Orasamu Vs. Idowu (1989) 4 F SC 40. In the same case, prior knowledge by the defendant of the interest of the plaintiff in the land would affect him even though he might not have actual formal notice.”
See also Fatoyinbo Vs. Williams (1956) SCRLR Pt.274; Eleran Vs. Aderonpe (2008) 11 NWLR Pt.1097 p.50 @ 80; Keyamo Vs. Folorunso (2011) 9 NWLR Pt.1252 p.209 @ 238; Ikonne Vs. Wachukwu (1991) 2 NWLR pt.172 p.214; Mohammed vs. Mohammed (2012) 11 NWLR Pt. 1310 p.1 @ 44 and Thompson Vs. Arowolo (2003) 7 NWLR Pt.818 p.163. In this instant case, the appellant paid the purchase price for the land and was issued Exhibit ‘E’.
He was in possession of the land from 1997 to 2006 when the respondent instituted the action claiming title to the land in dispute. The appellant had therefore acquired equitable interest in the land, yet the respondent went ahead and processed, secured and obtained Exhibit ‘A’ , the statutory right occupancy, with the full knowledge of the existence of Exhibits ‘E’ and ‘F’ by which the appellant had acquired the equitable interest in the said land.
Between Exhibit ‘A’ and Exhibit ‘F’ which one prevails over the other? Exhibit ‘F’ came into existence on 5th August, 1997: Exhibit ‘A’ was issued on 15th May, 2011 but with effect from 8th of December, 1997. When there are two documents in existence in respect of title to land, the one first in time prevails, and the subsequent one would be of no legal effect in conferring title in land. See Eleran Vs. Aderonpe (2008) 11 NWLR Pt.1097 p.50 @ 80 when this court held that were two or more competing documents of title upon which parties to a land dispute rely for their claim of title to such land, the doctrine of priorities pursuant to the maxim “qui prior est tempore, portier est jure” (meaning he who is first has the strongest right) dictates that the first in time takes priority. In the case of Kachalla Vs. Banki (2006) 8 NWLR Pt. 982 P. 364 @ 384, the Supreme Court held that in property law competing interests will generally rank according to the order of their creation, See also Ugbo Vs. Aburima (1994) 8 NWLR Pt. 506 p.570.
As earlier pointed out in this judgment, exhibit ‘F’ which created an equitable title in favour of the appellant over the land in dispute was earlier in time. As at the time Exhibit ‘A’ was issued, the appellant had already acquired an equitable interest in the said land, subject of Exhibit ‘A’. Having paid the purchase price as evidenced by Exhibit ‘E’ and taken possession thereof, the title acquired by the appellant, though an equitable one, is as good as Exhibit ‘A’, the statutory right of occupancy. It was argued that in view of the pleadings, and the evidence before the trial Court to the effect that the respondent was the title holder over the land by virtue of Exhibit ‘G’ before the Exhibit ‘F’ was issued, the appellant had the onus of proving that the respondent had been divested of the title at the time Exhibit ‘A’ was issued. It was further submitted that having denied giving authority to Mohammed Yusuf Manchin to sell the land to the appellant, and having not signed the said exhibit ‘F’, he can not be bound by it. This argument, in my view has no merit. Exhibit ‘F’ has the name of the respondent; Mohammed Yusuf Manchin signed it as an agent of the respondent. The evidence of DWs 1, 2, 3 and 4 have given credence to the conclusion reached hereinbefore that the said Mohammed Yusuf Manchin was an agent not by express or written authority, but by implied or constructive authority. So, whether the respondent did sign Exhibit ‘F’ or not, it had in law created an equitable interest in the land in favour of the appellant. With the creation of the equitable interest in the land in favour of the appellant, the respondent had no legal title left which could support the issuance of Exhibit ‘A’ in his favour. Since the respondent has transferred his title in the land to the appellant by virtue of Exhibit ‘F’, Exhibit ‘A’ has no legal basis to stand. One can not put something on nothing and expect it to stand. It will collapse. The legal title created by Exhibit ‘G’ in favour of the respondent when he purchased the land from the villagers in Pankshin, “died” so to speak, with the coming into existence of the equitable interest created by exhibit ‘F’ in favour of the appellant.
So, in view of the equitable interest acquired by the appellant in the land in dispute by virtue of Exhibits ‘E’ and ‘F’; Exhibit ‘F’ having been first in time to Exhibit ‘A’, the learned trial judge was not right when he relied on Exhibit ‘A’ to hold that title in the disputed land remained with the respondent despite the existence of Exhibits ‘E’ and ‘F’. This issue is hereby resolved in favour of the appellant. Having resolved all the three (3) issues in favour of the appellant, the appeal succeeds. The judgment of the trial court is hereby set aside. The counter claim by the appellant has not been made an issue in this appeal. This Court can not delve into it since there is no appeal against the judgment of the lower Court in respect of it. The appellant is entitled to costs, which having regard to the nature and circumstances of the case, I assess at N30,000.00 Naira. Same be and is hereby awarded to the appellant.
RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in advance the lead judgment delivered by my learned brother Bdliya, JCA and I agree completely with both his reasoning and conclusions. The judgment is exhaustive and I have nothing else to add. I abide by all the consequential orders contained therein.
PETER OLABISI IGE, J.C.A.: I had the benefit of reading in draft the lead Judgment of my Learned Brother BDLIYA, JCA.
A plaintiff who has sold his land to a purchaser for valuable consideration cannot turn round to claim in an action for declaration of title or Right of Occupancy over or in the very land he had earlier sold to someone else.
He has by such sale terminated or extinguished his own proprietary right or interest in that land. The doctrine of nemo dat quod non habet will come into play and will be invoked against such a plaintiff.
Moreso, as in this case where the Appellant had earlier on acquired equitable interest coupled with possession of the land in subject matter of this appeal from the respondent.
Therefore a subsequent acquisition of certificate of occupancy on the land earlier sold to the Appellant either by the Respondent or any other person for that matter cannot override or oust the equitable interest already acquired on the land by the Appellant. Such certificate of occupancy conveys nothing and it is devoid of any validity as it is null and void. To me Exhibit “A” the certificate of occupancy has no evidential value. See: Alhaji Aminu Dantosho v. Alhaji Abubakar Mohammed (2003) 6 N.W.L.R (part 817) 457 at 487 C-F per KATSINA-ALU JSC (later CJN RTD) who held:
In a situation such as the one we have in the instant case, where two contesting parties trace their title in respect of the same piece of land to the same grantor, the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor because the grantor having successfully divested himself of title in respect of the piece of land in question by the first grant would have nothing left to convey to a subsequent grantee under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him. This is an obvious truism. The Governor in the present case is the common grantor. The respondent’s certificate of occupancy (exhibit 1) was issued on 11th August, 1982. By the time the appellant’s certificate of occupancy (exhibit 4) was issued on 7th October, 1982 over the same plot of land, the Governor no longer had anything at plot 79 Sharada Kano having not revoked the earlier grant exhibit 1 made to the respondent. See Tewogbade vs Mrs. Obadina (1994) 4 NWLR (pt.388) 326, (1994) 4 SCNJ 79. It goes without saying that the appellant got nothing from the Governor. I am therefore in complete agreement with the decision of the trial court and the Court of Appeal on this issue.
The equity rule of “the first in time is stronger in law” is hereby enlisted.
Consequently, I agree with my Lord BDLIYA, J.C.A, that the appeal of the Appellant is meritorious and should be allowed. The judgment of the lower court is hereby set aside.
I agree also with order made concerning costs in the sum of N30,000.00 in favour of the Appellant.
Appearances
S. D. Samchi with F. Ka’atpoFor Appellant
AND
F. O. Shaibu Esq.For Respondent
