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VINYLON FOOTWEAR INDUSTRY LTD v. DABI (2021)

VINYLON FOOTWEAR INDUSTRY LTD v. DABI

(2021)LCN/15868(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Wednesday, November 24, 2021

CA/KN/147/2020

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

VINYLON FOOTWEAR INDUSTRY LIMITED APPELANT(S)

And

SAIDU MOHAMMAD DABI RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE PRODUCTION OF CERTIFICATE OF OCCUPANCY IS PROOF OF TITLE TO A LAND IN DISPUTE

The law is trite, that production of Certificate of Occupancy is a prima facie proof of title or possession of the land in issue, and a party who contests it or seeks its defeat, must establish that it was not properly issued and/or that it is not valid.
The two sides to this appeal are ad idem, as to the trite position of the law on this, and had cited different authorities in support. See the case of Atanda Vs Iliasu (2013) ALL FWLR (Pt.681) 1469 at 1489, where the Supreme Court held:
“A Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued, there was not in existence a customary owner, whose title has not been revoked. The presumption is however rebuttable, because if it is proved by evidence that another person had better title to the land before the issuance of the certificate of occupancy, then the Court can revoke it.”
PER MBABA, J.C.A.

THE PROVISIONS OF THE LAND USE ACT

The Land Use Act came into effect in March, 1978, and the law credited every land holder in the State with existing rights (or deemed rights) of occupancy of the portion he holds, until the same is, expressly, revoked by any exercise of the power, under the Act, to grant express right of Occupancy to any other person, over a given portion of land. See Section 34 of the Land Use Act and the case of Ojah & Ors Vs Ogboni & Ors (1996) LPELR–2367 SC, where it was held:
“…It is gratifying to observe that the Land Use Act 1978 has preserved the right of the non-urban agricultural community engaged in agriculture to continue to use their land in non-urban area for such purposes be they holders or occupiers (see Section 36(1) and (2)). They are deemed to have been granted a customary right of occupancy (see Section 36(2)), and the holder or occupier is entitled to be registered as one to whom a customary right of occupancy has been issued in respect of the land in question if the local government is satisfied that the occupier or holder was entitled to possession of such land whether under customary rights or otherwise howsoever and that the land was being used for agricultural purposes at the commencement of the lease. The Act ensured the continuous use for agricultural purpose by the holder or occupier by the provision in sub-section (5) of Section 36 that: “no land to which this section applies shall be sub-divided or laid out into plots and no such land shall be transferred to any person by the person in whom the land was vested.” and the continuous availability of land for agricultural purposes assured by the prohibition is absolute in sub-section (6) which declared: “Any instrument purporting to transfer any land to which this section relates, shall be void and of no effect whatsoever in law and every party to any such instrument shall be guilty of an offence and shall, on conviction, be liable to a fine of N5,000.00 or to imprisonment for 1 year.”  PER MBABA, J.C.A.

THE POSITION OF LAW ON NECESSARY PARTIES TO A SUIT

In the case of NDP Vs INEC (2012) LPELR–19722, the Supreme Court held that:
“A necessary party is someone whose presence is essential for the effectual and complete determination of the issues before the Court. It is a party in absence of whom the whole claim cannot be effectually and completely determined. A necessary party should be allowed to have his fate in his own hands.” Per Fabiyi, JSC
In the case of Poroye & Ors Vs Makarfi & Ors (2017) LPELR–42738 (SC), the trial Court had heard a one sided case of Poroye & Ors, which targeted the Respondents (Makarfi and his group) and took some vital critical decisions against the Respondents, forcing same on the Respondents, without hearing them. An application by the affected Respondents to set aside that decision of the trial Court, for being obtained behind the Respondents, in breach of their fundamental rights of fair hearing, was granted by this Court and affirmed by Apex Court, which held:
“In the case of Akpamgbo-Okadigbo vs Chidi (No. 1) (2015) 3 SCM 141 at 661; (2015) 10 NWLR (Pt.1466) 171 at 198 I stated the position of the law, in a similar situation, as follows:- “Where there is a failure to hear all the necessary parties to the dispute before a decision is reached, there is a breach of Section 36(1) of the 1999 Constitution as amended which has the effect of automatically rendering the proceedings in the action and the judgment or ruling resulting therefrom a nullity and void, without any legal effect.”
 PER MBABA, J.C.A.

THE POSITION OF LAW ON PRESUMPTION OF REGULARITY

By law, the presumption of regularity availed the Certificate of Occupancy produced by Appellant, especially as the Respondent, and even the trial Court, admitted the same was issued by the Government of Jigawa State. See the case of Shitta Bey Vs A.G. Fed. & Anor (1998) LPELR–3055 (SC), where it was held:
“Apart from what is called presumption of regularity of official acts, there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the common law maxim in the Latin phrase Omnia praesumuntur rite esse acta. This presumption is very commonly resorted to and applied especially with respect to official acts. See Ogbuanyinya v. Okudo (1990) (No.2) 4 NWLR (Pt. 146) 551 at 570 paragraphs D-E. See also Section 114 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. The learned authors of Phipson on Evidence, Eleventh Edition have this to say on the subject: “The presumption which is nearly akin to that of innocence is chiefly applied to a judicial and official acts, and though sometimes conclusive, is in general only rebuttable.” PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of Jigawa State High Court, in Suit No. JDU/34/2018, delivered on 14th April, 2020, by Hon. Justice Abubakar M. Sambo, wherein the Learned trial Judge gave judgment to the Claimant, as per the reliefs sought – (a to d).

At the trial Court, the Plaintiff had sought the following reliefs:
(a) A declaration that the Claimant is entitled to Right of Occupancy over the farmland situate and lying at Makeri-Rijiya Biyu Dabi, Ringim Local Government covering area of 1,403 hectares on Kano – Hadejia Road, as described in the Survey Plan of the farmland.
(b) A declaration that the Claimant is the bonafide owner of the Right of Occupancy of the farmland in issue at Makeri-Rijiya Biyu Dabi, Ringim Local Government covering area of 1,403 hectares on Kano – Hadejia Road, as described in the Survey Plan of the family
(c) A declaration that the Defendant has unlawfully trespassed into the Claimant’s farmland without just cause.
(d) A declaration that the excavation and the building works being carried on by the Defendant on the claimant’s land is wrong, illegal and unlawful.
(e) The sum of N20,000,000.00 (Twenty Million Naira) only being general damages against the Defendant for the Defendant’s trespass, its agents and/or servants on the land.
(f) An order of perpetual injunction restraining the Defendant, its servants, agents and privies from further trespass on the land or any excavation building or construction works otherwise interfering with the rights of the Claimant in any manner.
(g) The sum of Two Million Naira (N2,000,000.00) only being the cost of prosecuting this matter.

The Defendant filed a defence and a Counter-claim, seeking as follows:
i. Declare the Counter-claimant as the lawful occupier of the parcel of land, comprising 21,988 hectares (54.3 acres) inclusive of the land in question covered (sic) the certificate of (sic) JGLM/IND/2010/4.
ii. Declare that the land is an industrial area, consistent with the user clause inserted in the Certificate of Occupancy JGLM/IND/2010/4.
iii. Issue a permanent injunction restraining the Claimant, Alhaji Saidu Dabi, his privies or anybody claiming under him from further interfering with the occupation and possession of the Counter-claimant, Vinylon Footwear Limited of all that parcel of land comprising 21,988 hectares, (54.3 acres) inclusive of land in question.
iv. Order the Claimant Alhaji Saidu Dabi, pay and forfeit and make good to the Vinylon the Counter-claimant his undertaking to pay damages.
v. An Order of injunction restraining the Alhaji Saidu Dabi, his privies or anybody claiming under him from committing any further act of trespass or going into the land.
vi. General damages in the sum of One Million Naira.”

After hearing the case and considering the evidence adduced and addresses of Counsel, the Learned trial Judge gave judgment in favour of the Claimant. He said:
“However, I am of the view that in the instant case the Claimant having also proved his title to the land in dispute by act of long possession and occupation without any competing claim, then the equitable interest translates into Legal estate as well as and is enforceable as such. The case of Zaccala V. Edosa and Benjamin V. Kalio (Supra) relied upon by the Claimant are apt. See also the case of Akinlade & Ors Vs Oseni (2017) LPELR–42981 (CA)…

The issue of non-registration of Exhibits A, A1, B and B1 is accordingly resolved against the Defendant. The contention worth resolving is whether the consent of the Governor of Jigawa State must be obtained before the transaction between the Claimant and the vendors stated in Exhibits A, A1, B and B1 becomes valid. The provisions of the Land Use Act under contemplation in this regard are Sections 21(b), 22(1) and 26 of which effect invalidates land transaction carried out without the consent of the Governor or Local Government Authority in respect of statutory right of occupancy or customary right of occupancy as the case may be.

I find the most recent Supreme Court decision on this Issue on Ibrahim Vs Obaje (2018) ALL FWLR (Pt.9937 (sic)) 1682 instructive and binding on this Issue. Since the Claimant came into ownership and occupation of the land in Issue by act of sale and possession in 1982 and 2001 respectively same has not been contested immediately after the sale or occupation until now.

In line with the decision in Obaje’s case I will readily agree that Section 22 or 21(b) of the Land Use Act cannot be given literal interpretation to deny parties’ right to enjoy their land and fruits thereof in a non-contentious transaction or alienation. That will be absurd. Governor’s consent is meant to supervise and safeguards parties legitimate land transaction not to deny them the benefit thereof…
It should be borne in mind that the Claimant’s title is equally available by act of long possession of the land in dispute. The argument of the Learned Defendant’s Counsel that the recent act of erection of sign post reading “ASAIMADOR GENERAL ENTERPRISES COMPANY LIMITED” is a distinct matter since it is not shown to be a party to the suit cannot adversely affect the claim by act of long possession and occupation in view of the Claimant’s uncontroverted testimony as CW2 as corroborated by CW1 and CW3, to the effect that he has been in undisturbed physical possession of the land since 1982 and 2001 and has been planting beans and maize on the farmland.
Having resolved all the forgoing contention in favour of the Claimant, I am of the firm view that issue(1) identified in this suit is resolved in favour of the Claimant…” (See Pages 32 to 33 of the judgment)

Continuing, the trial Court said:
“However, in deciding whether the Claimant is entitled to the reliefs and declarations sought in the writ, I shall address same anon along with Issue (2) identified for determination… Having carefully perused the Defendant’s/Counter-Claimant’s pleadings, evidence thereto and supporting documents of title which stood unimpeached, it is established without dispute, that the Defendant was granted letter of grant under Right of Occupancy followed by a certificate of Occupancy No. JGLM/IND/2010/4 with a site Plan (Exhibits H & H1) over the land in dispute. The letter of Right of Occupancy and Certificate of Occupancy covers 21,988 hectares, comprising 1,403 hectares of the land in dispute, was granted by the Governor since 22/11/2010 and 29/11/2011, respectively.
I have earlier founded vide the undisputed evidence in this trial the Claimant came into possession and ownership of his portions of the land in 1982 and 2001 respectively. However, it is equally worth considering that the Defendant/Counter Claimant came into ownership of its land, including the Claimant’s portion in November, 2011. However, it was until December, 2011 that the Claimant encountered the Defendant’s/Counter-Claimant’s agents tempering with his possession and ownership of his portion of the farmland. In view of the Claimant’s complaint to the Defendant to desist without avail the Claimant instituted this suit…
The ultimate question to be answered is which of the competing claims over the 1,403 hectares of the land supersede the order…
I quite agree that the law is trite and settled that before the Governor can grant a statutory right of occupancy, where there is a prior existing right of occupancy, as in the instant case, certain steps must be taken to validly revoke and grant such right of occupancy to another person or institution as enshrined under the provisions of Section 281 (sic) (1), (4), (6), (7) of the Land Use Act 1978. More so in the instant case, the evidence led and tendered vide DW2 and Exhibit H had established that the lands bordering the Claimant’s land, which forms part of the Defendant’s land, are farmlands whose owners were compensated by the government.
The provisions of the Land Use Act (supra) are clear and instructive on what constitutes valid method of revocation of land by the Governor before same can be granted to the different entity. Such revocation shall be for public purpose which includes industrial or agricultural development as defined under Section 44 of the Land Use Act.
In the instant case, the Defendant’s/Counter-Claimant’s Certificate of Occupancy has shown that the land was granted to it for industrial purposes. However, the Defendant/Counter-Claimant has failed to established that the prior interest of the Claimant’s 1,403 hectares of the farmland has been validly revoked by the Governor in accordance with the provisions of Section 38(1), 28(4) and 35(1) of the Land Use Act first before statutory right of occupancy over same was granted to the Defendant to form part of its 21,988 hectares of land… Before finally resolving this issue, it is pertinent to address the grouse of the Learned Defendant’s Counsel over failure of the Claimant to join Jigawa State Government in this suit…
It is clear from the foregoing provisions that non-joinder of a party is immaterial, if the matter between parties before the Court can be effectively resolved…
I am therefore of the firm view that non-joinder of the State Government cannot constitute an obstacle to complete adjudication or settlement of all questions surfacing from this suit.
On the substantive issue, therefore, I am of the view that the claimant’s right of occupancy over 1,403 hectares of the farmland in dispute still subsist. The government cannot validly vest the Claimant’s portion of the land to the Defendant as the maxim “Nemo dat quad non habet” applies herein. The grant of right of occupancy to the Defendant over 1,403 hectares of the Claimant’s portion of the farmland covered by the Certificate of Occupancy No. JGLM/IND/2010/4 is hereby declared invalid. To this extent and in the circumstances, the Defendant’s Counter-Claim and the entire reliefs thereto must fail as it cannot Counter-Claim on what it does not have. I so find…” See Pages 33 to 38 of the judgment (shown on 329 to 368 of the Records of Appeal.

​That is the decision Appellant appealed against, as per the Notice of Appeal (Pages 368 to 380 of the Records) which disclosed Nine (9) grounds of Appeal.

Appellant filed Brief of Argument on 9/10/2017 and a Reply Brief on 21/9/2021, deemed duly filed on 20/10/2021. In the Brief Appellant distilled 5 Issues for the determination of the appeal, as follows:
(1) Whether the learned trial Judge was right in holding that the Respondent is entitled to Right of Occupancy over the farmland situate and lying at Maleri Rijiya Biyu Dabi, Ringim LGA of 1403 hectares on Kano – Hadejia Road, relying on the five ways to prove ownership of land principle as stated in Idundun & Ors Vs Okumagba (1976) Vol. 10 NSCC 446; Omorogie Vs Idugiemwanye (1985) 5 NWLR (Pt.5) and Chief Ademuagun Opoto & Ors v. Chief Peter Adebisi Anaun & Ors (2015) LPELR–24734. (Ground 1).

(2) Whether the Learned Trial Judge was right in holding that the Respondent has discharged the burden on him of proving his title to the land by purchase and act of long possession and enjoyment. (Grounds 2, 3, 4, 6, 7)
(3) Whether the Learned Trial Judge was right to holding (sic) that the grant of the Right of Occupancy to the Respondent’s portion of the farmland covered by Certificate of Occupancy No. JGLN (sic)/IND/2010/4 is invalid and hence dismissed the Counter-Claim of the Appellant. (Grounds 5 and 8)
(4) Whether the Learned Trial Judge has properly evaluated the evidence before him and arrived at a conclusion not supported by the evidence before him. (Grounds 6 and 7)
(5) Whether the Learned Trial Judge properly interpreted the provisions of Order 13 Rule 16(1) of the Jigawa State High Court Civil Procedure Rules in holding that the non-joinder of Jigawa State Government by the Claimant was not necessary and did not constitute an obstacle for the complete and fair adjudication of all the Issues in the case.

The Respondent filed his brief on 4/1/2021 and distilled two Issues for the determination of the appeal, as follows:
(1) Whether, from the facts and circumstances of this case, the Learned Trial Judge was right when he held that the Respondent is entitled to the Right of Occupancy over the farmland lying and situate at Maleri-Rijiya Biyu Dabi, Ringim Local Government Area covering an area of 1,403 hectares.
(2) Whether from the facts and circumstances of this case, the Learned Trial Judge was right when he declared invalid the right of Occupancy granted by the Jigawa State Government to the Appellant over 1,403 hectares of land situate at Maleri-Rijiya Biyu, Dabi, Ringim LGA and covered by Certificate of Occupancy No. JGL/IND/2010/4 (sic)

PROLIFERATION OF ISSUES
Appellant’s Counsel had distilled Appellant’s Issue 2 from grounds 2, 3, 4, 6 and 7 of the appeal, but, surprisingly and erroneously, distilled the Issue 4 from the same grounds 6 and 7 of the appeal. That cannot be done; having earlier used the said grounds 6 and 7 (with other grounds) to distill Issue 2, the said grounds ceased to be available to give birth to any other Issue for the determination of the appeal. See the recent decision of this Court Union Bank of Nigeria Plc Vs Anthony Ejike Mbaka & Ors: CA/E/296/2017, delivered on 29/10/2021, where we held:
“Appellant’s Counsel goofed, again, when he distilled the Issue 2 from grounds 1, 4 and 6 of the Amended Notice of Appeal, only to also distill the Issue 4 from the same ground 6! And, while arguing the said Issue 2, Appellant’s Counsel, in the Brief, claimed to have distilled same Issue 2 from grounds 1 and 2 of the Amended Notice of Appeal!… the Issue 3, which would have been thought saved or spared to host this appeal, cannot also be available to argue the appeal, as Appellant, again, erred when its Counsel stated that Issue 3 derived from grounds 4 & 5 of the Appeal!…
Appeal can only be argued on Issue or Issues, donated for the determination of the appeal, and the Issues must be properly related to the grounds of the appeal, which must, in turn, flow from or relate to the ratio decidendi of the judgment, appeal against. That constitutes the trite principles of law, governing argument of appeals in this Court and in the Apex Court. See the cases of Sheidu Vs The State (2014) LPELR–23018 (SC); (2014) 15 NWLR (Pt.1429) 1; Ukwuoma Vs Okafor (2016) LPELR–41505 (CA); Fajebe & Anor Vs Opanuga (2019) LPELR–46348 (SC); North West Petroleum & Gas Co. Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR–55509 (CA).”
Of course, the law is trite, that though two or more grounds of appeal can be combined to generate an Issue for determination of appeal, one ground of appeal cannot be split to donate different issues for determination of appeal.
See again the case of North West Petroleum & Gas Co. Ltd & Anor Vs Iloh & Ors (2021) LPELR–55509 CA:
“… he (Counsel) split many of the grounds of appeal to donate several issues for determination, in a manner quite offensive to the rules and procedure for arguing appeals. The law is trite, that whereas Appellant can combine two or more grounds of appeal to generate an issue for the determination of appeal, he cannot split a ground of appeal to raise several issues for determination of the appeal. That is to say, that the moment an Appellant has distilled an issue from a given ground(s) of appeal, he cannot, thereafter, use the said (used) ground(s) of appeal to generate another issue for the determination of the appeal, as that would amount to the proliferation of issues. See the case of A.G. Imo State Vs Imo Rubber Estate Ltd and Ors (2019) LPELR-47579 (CA); Phillips Vs Eba Odan Commercial & Industrial Co. Ltd (2012) LPELR-9718 (SC); Ugo Vs Obiekwe (1989) 2 SC (Pt. 11) 41. Of course, it is trite, that once Appellant has distilled an issue for determination of appeal from a given ground(s) of appeal, that ground (or grounds) of appeal ceases to be available to donate another issue for determination of the appeal. In that case of A. G. Imo State Vs Imo Rubber Estate Ltd & Ors (supra).”

Appellant’s Counsel did not, however, relate Issue 5 to any of the grounds of appeal. But a close perusal of the Issue shows that it derived from ground 9 of the appeal. Issue 4 is accordingly struck out.

I shall therefore consider this appeal on the remaining Issues 1, 2, 3 and 5, but shall further summarize them into three (3) as follows:
(1) Whether the Learned trial Judge was right to hold that the Respondent was entitled to Certificate of Occupancy over the 1,403 hectares of land and had correctly interpreted the relevant provisions of the Land Use Act, 1978 in reaching his conclusion?
(2) Whether the Respondent’s failure to join the Jigawa State Government in the suit was fatal to Respondent’s case?
(3) Whether the trial Court was right to dismiss Appellant’s Counter-Claim in the circumstances, and invalidating the Certificate of Occupancy granted to Appellant by the Governor of Jigawa State?

Appellant’s Senior Counsel A.B. Mahmoud, Esq, SAN (who argued the brief, settled by Sefiullahi Oseni), on Issue 1, argued that the trial Court was wrong to hold that Respondent was entitled to right of occupancy over the land in dispute; that the Respondent wrongly relied on the five ways of proving ownership and title to land, as per the case of Idundun & Ors Vs Okumagba (1976) Vol. 10 NCC 446 and Omorogie Vs Idugiemwanye (1985) 5 NWLR (Pt.5). He said exhibits A, A1, B, B1 and unsigned/undated Survey Plan (Exhibit C2), made in the name of Asaimodar General Enterprises Co. Ltd (a company which was not a party to the suit), were used to seek declaration of right of occupancy in respect of the land. He submitted that the case relied on by the trial Court were not applicable to this case, nor to the land holding laws and policy operative in the Northern part of Nigeria, as per the 1962 Land Tenure Law, as amended in 1963. He said that, by the operative laws and facts related to this case, what the Respondent was entitled to was a claim for compensation for unexhausted improvement he made on the land, not right of occupancy; that as per the facts, as prevailed in the North, and the harmonization of these principles by the Land Use Act of 1978, the trial Court wrongly applied the principles applicable in the South, as expounded in the cases it relied on. He argued that by the Land Tenure Law of the North 1963, as amended, (and the Land Use Act) all lands in Northern Nigeria were vested in the Governor and the law does not admit the concept of ownership, whatsoever; that the law empowered that Governor to issue right of occupancy or deemed statutory right of occupancy, and does not give any superiority of proof through other methods, over statutory title. He argued that the law gives protection to anyone issued with Statutory Right of Occupancy; that the Land Registry is maintained to make land administration more robust, ascertain records and makes dealings in land ascertainable; that the decision of the trial Court had compromised all that. He said that the Respondent’s claim ought to have been dismissed, in limine.

​Counsel referred us to Section 22 of the Land Use Act 1978, and said that the trial Court misinterpreted that provision, which clearly states that no valid alienation or transfer of interest can be made over a right of occupancy, without the consent of the Governor of the State, first had and obtained. He relied on the case of Savannah Bank Vs Ajilo (1989) 1 NWLR (Pt.154) 401. He stated that, with the Land Tenure Law of the North and the Land Use Act 1978, the concept of land ownership had been abolished and replaced with that of grant of right of occupancy by the Governor. He relied on Ezeanah Vs Atta (2004) ALL FWLR (Pt.202) 1858.

Counsel said that the Respondent’s Exhibits A, A1, B, B1 could not have established his right to occupancy of the property, in the absence of the consent of the Governor, and that those documents could not have superseded the Exhibits H, H1 and D produced by the Appellant, which were better title to the land, being Certificate of Occupancy, issued by the Governor. Counsel relied on the case of Pada Vs Galadima (2015) 3 NWLR (Pt.1607) 436 at 460, to the effect that, where there is conflicting claims of possession on a property, the person with better title is the one to be ascribed with the right thereto. He also relied on Auta Vs Ibe (supra) to say that the law gives exclusive possession to a party with a better title and that Certificate of Occupancy is normally the evidence of exclusive possession and rights, until the contrary is proved. Counsel added that Respondent’s documents, upon which he claimed title, were unregistered land instruments, which can only be admitted in equity for the purpose of showing evidence of payment, as receipts, and they could not be compared with Appellant’s legal documents; he said that equitable instrument cannot override a legal instrument – Benjamin Vs Kalio (2018) 15 NWLR (Pt.1641) 38; B.O.I. Ltd Vs Adewale–Adediran (2018) 17 NWLR (Pt.1487) 114; Kachalla Vs Banki (2006) 8 NWLR (Pt.982) 364; Bulet Int’l (Nig) Ltd Vs Olaniyi (2017) 17 NWLR (Pt.1594) 260.


On Issue 2, Counsel said the Respondent, did not establish his claim; that being a declaratory relief, he needed to succeed on the strength of his own case, not on the weakness of the defence. He relied on Ashiru Vs Olukoya (2006) 11 NWLR (Pt.990) 1. He referred us to the undated and unsigned Survey Plan, made in 2014, suggesting the land belonged to Asaimodor General Enterprises Company Ltd (who was not even a party to the suit) and yet the Respondent claimed to have been in physical undisturbed possession of the land, since 1982 and 2001!

On Issue 3, Counsel said the trial Court was wrong to hold that Certificate of Occupancy No. JGLM/IND/2010/4, granted to Appellant (which included the land in dispute) was invalid, and to dismiss Appellant’s Counter-Claim. Counsel said that Appellant had established his case by producing credible evidence and documents of title – Certificate of Occupancy (Exhibits H & H1). He relied on the Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt.1184) 265, on the measuring index of a valid, credible document of title. He said that the Exhibit H1 had satisfied the requirements to be accorded the respect of the Court, especially as they were not challenged or discredited, but admitted by the Respondent. He relied on Ibrahim Vs Garki (2017) 9 NWLR (Pt.1571) 345.

On the Issue that Jigawa State Government was a necessary party to the case of Respondent, and that the failure to join same was fatal to Respondent’s case, Counsel relied on Poroye Vs Makarfi (2018) 1 NWLR (Pt.1599) 91 (SC). He said that a necessary party is one who should be bound by the decision/order of Court, and his joinder would help the Court to determine the issues raised, finally and conclusively. He argued that if the Respondent actually intended to question or fault the issuance of the Certificate of Occupancy (Exhibits H & H1) to Appellant, he should have joined the Government of Jigawa State through the Ministry of Lands/Governor that issued the document to Appellant to give them (Government) opportunity to defend their action; he said that the trial Court cannot pronounce against the Certificate of Occupancy, without hearing from the person who issued it – whether or not it complied with the set down conditions! He urged us to invoke the presumption of regularity on the document – certificate of occupancy issued to Appellant.

He urged us to hold that the Jigawa State Government was a necessary party to the Respondent’s suit; that the case could not be effectively and conclusively determined, without the Government that issued the certificate and that the Court cannot validate the certificate, without hearing from the government that issued it. He relied on LSBPC Vs Purification of Tech. Nig. Ltd (2013) 7 NWLR (Pt.1352) 82 at 113 (SC); Olawoye Vs Jimoh (2013) 13 NWLR (Pt.1371) 362.

Counsel urged us to allow the appeal, set aside the decision of the lower Court and enter judgment for the Appellant, as per their Counter-claim.

The Respondent’s Counsel, Adamu M. Kalandi, Esq, who settled the brief for Respondent, on their Issue 1, said the trial Court was right to hold for Respondent as being entitled to the grant of right of occupancy over the land in dispute. He said Exhibits A, A1, B and B1 were agreements evidencing the Respondent’s purchase of the land in dispute in 1982 and 2001 respectively. He said that the documents were sufficient to prove Respondent’s title, even though they were equitable documents. He said that the Supreme Court does not discriminate in the interpretation of proof of ownership of land, whether in the Southern part of Nigeria or in the North; that the cases of Idundun & Ors Vs Akumagba (supra); Omorogie Vs Idugiemwanye (supra) and Chief Ademuagun Opoto & Ors v. Chief Peter Adebisi Anaun & Ors (supra) were applicable to this case.

Counsel relied on Section 50(1) of the Land Use Act, 1978 on the definition of Customary right of occupancy and said that the Act recognizes ownership right of land. He relied on the 5 ways of proving ownership of land and said that the Respondent had proved his case by production of documents – Exhibits A, A1, B and B1. Counsel argued that the equitable interest of the Respondent on the land, as per Exhibits A, A1, Band B1, were as good as a legal estate and relied on the case of Nsiege Vs Mgbemena (2007) ALL FWLR (Pt.372) 1769 at 1799 (SC), which held:
“When a purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument which has not been registered he has thereby acquired an equitable interest which is as good as a legal estate.”

He also relied on Ok​oye Vs Dumez Nig. Ltd (1985) 6 SC 3, (1985) 1 NWLR (Pt.4) 789; Zaccala Vs Edosa (2018) ALL FWLR (Pt.926) 1 at 31.


On Issue 2, whether the trial Court was right to declare invalid, the Certificate of Occupancy of Appellant issued by the Governor of Jigawa State, which included the 1,403 hectares of farmland claimed by Respondent, Counsel answered in the affirmative. Counsel however admitted the issuance of the Certificate of Occupancy No. JGLM/IND/2010/4, together with the site plan (Exhibits H & H1 respectively) to Appellant by the Governor of Jigawa State, but said that, since Respondent’s 1,403 hectares farmland was induced in 21,988 hectares, given to Appellant, that inclusion vitiated the grant to Appellant.

Counsel acknowledged the right and power of the Jigawa State Government to allocate lands to individuals and companies for sundry purposes, but said that the right of occupancy granted to the Appellant should not extinguish the right of the Respondent. He said that the trial Court, in dismissing the Counter-claim of the Appellant, acted in accordance with extant laws; that Appellant failed to establish that the prior interest of the Respondent over the 1,403 hectares (included in Appellant’s grant), had been validly revoked by the Governor, in accordance with Sections 38(1), 28(4) and 35(1) of the Land Use Act, first before allocating the land (Exhibits H & H1) to Appellant.

​Counsel said the trial Court was right; that though the Governor has the ultimate power to grant right of occupancy to the applicant, which extinguishes existing rights over such land, upon payment of compensation on unexhausted developments, it was never the intent or purpose of the Land Use Act, for Certificate of Occupancy issued, to serve as a magic wand, such that when tendered or brandished, it casts a legal spell on the Court, and all, to extinguish other existing rights recognized by law; he said that certificate of occupancy is only a prima facie evidence of right over land, and it can be declared invalid, null and void, if wrongly acquired, or granted. He relied on the case of Olohunde Vs Adeyoju (2000) 10 NWLR (Pt.676) 562 at 588; Atanda Vs Iliasu (2013) ALL FWLR (Pt.681) 1469 at 1489; Kolo Vs Lawan (2018) LPELR–44378 (SC).

Counsel urged us to resolve the Issue against the Appellant and to dismiss the appeal.

RESOLUTION OF ISSUES
Appellant had filed a Reply Brief, which appeared to centre on Issues not quite relevant to this appeal, relating to description or clear identity of the land, and to need to visit the locus in quo. The law is trite that, where the parties are well acquainted with the land in dispute, the identity or description of the land ceases to be an issue. See the case of Anagbado Vs Faruk (2018) LPELR–44909 (SC), where it was held:
“The parties, themselves, know the portion of the land in dispute. In the circumstance, the identity of the disputed portion of land is not in dispute. The principle well established since Baruwa Vs Ogunshola (1938) 4 WACA 159, is that the onus is on the Plaintiff who seeks a declaration of title to land to show clearly the area of land to which his claim relates. Where, however, the parties themselves know the portion of land in dispute this principle does not strictly apply.” Per Eko JSC

In this case, the parties are certain on the particular portion of the land in dispute, being the 1,403 hectares of farmland claimed by the Respondent and included in the 21,988 hectares, granted to Appellant in Certificate of Occupancy No. JGLM/IND/2010/4. There was, therefore, no valid issue about the description of the land in dispute, in my opinion.

​The other issues, raised in the Reply Brief, about the alleged equitable interest of the Respondent in the land, vide the unregistered instruments – Exhibits A, A1, B, B1, appear to be an attempt to further the Appellant’s argument of its brief, which is not the purpose a Reply Brief is meant to serve. See the case of Oguanuhu & Ors Vs Chiegboka (2013) LPELR–19980 SC:
“A reply brief is not meant to be a repetition of the arguments in the Appellants’ Brief. It is not an opportunity to re-emphasize the arguments in the Appellants’ Brief. On the contrary, a Reply Brief, as the term implies, replies to the Respondent’s brief.” Per Galadima, JSC
See also Gwede Vs Delta State House of Assembly & Anor (2019) LPELR–47441 (SC); Ugwuoke Vs FRSC & Ors (2019) LPELR–46611 (CA) and Iheka Vs Njoku (2017) LPELR–42102 (CA), where we held:
“Appellant’s Reply brief appears to be a re-argument of his case, which is not the purpose of filing a Reply brief. See Akayepe & Anor. Vs Akayepe (2009) LPELR-326 SC: “A Reply brief is filed when an issue of law or argument raised in the Respondents brief of argument call for a reply… a reply brief is not a forum for introducing fresh argument or repetition of argument already advance in the Appellant’s brief.” A Reply brief is not meant to improve or correct the argument of Appellant in the main brief. See NNPC Vs Aminu (2013) LPELR-21396 (CA); Nigeria Yeast and Alcohol Manufacturing Co. Plc Vs All Motors Nig. Plc (2011) ALL FWLR (pt.600) 1226; See also Oguamaram Nwakuna & Ors Vs Nze Innocent Ihemedu & Anor. CA/OW/148/2014, delivered on 27/2/17.”

I have earlier identified the real issues for the consideration of this appeal, namely:
(1) Whether the Learned trial Judge was right to hold that the Respondent was entitled to Certificate of Occupancy over the 1,403 hectares of land and had correctly interpreted the relevant provisions of the Land Use Act, 1978 in reaching his conclusion?
(2) Whether the Respondent’s failure to join the Jigawa State Government in the suit was fatal to Respondent’s case?
(3) Whether the trial Court was right to dismiss Appellant’s Counter-Claim in the circumstances, and invalidating the Certificate of Occupancy, granted to Appellant by the Governor of Jigawa State?
And I shall take the Issues, together.

​The law is trite, that production of Certificate of Occupancy is a prima facie proof of title or possession of the land in issue, and a party who contests it or seeks its defeat, must establish that it was not properly issued and/or that it is not valid.
The two sides to this appeal are ad idem, as to the trite position of the law on this, and had cited different authorities in support. See the case of Atanda Vs Iliasu (2013) ALL FWLR (Pt.681) 1469 at 1489, where the Supreme Court held:
“A Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued, there was not in existence a customary owner, whose title has not been revoked. The presumption is however rebuttable, because if it is proved by evidence that another person had better title to the land before the issuance of the certificate of occupancy, then the Court can revoke it.”
See also Kolo Vs Lawan (2018) LPELR–44378 (SC), where the Supreme Court held:
“While the appellant’s claim to the disputed land is by virtue of the Right of occupancy issued to him by the Governor of Borno State on 15th October 1995, the respondent on the other hand based his claim to the said land through purchase from one Mallam Mustapha Amatami whose root of title is through inheritance. The respondent therefore possessed a customary title over the land since 1977 and before the promulgation of the Land Use Act. The disputed land is within Maiduguri; consequently, the land is located in an urban area. With the coming into effect of the Land Use Act in 1978, the respondent would have become a deemed holder of a statutory right of occupancy over the land if it was developed by virtue of Section 34 (2) of the Land Use Act. But since the land was undeveloped he would be entitled to one plot which size should not exceed half of one hectare. See: Section 34 (5) Land Use Act. Since the appellant’s title is predicated on the issuance to him of a statutory right of occupancy in 1995 by the Governor of Borno State by virtue of Section 5 (1)(a) & (2) of the Land Use Act, before it can become a valid title, there must be evidence that the respondent’s title has been extinguished by revocation and upon payment of adequate compensation. It was held in Ogunleye v. Oni (1990) 2 NSCC (pt. 11) 72 that the Land Use Act never set out to abolish all existing titles and rights to possession of land. Rather where such rights or titles relate to developed lands in urban areas, the possessor or owner of the right of title is deemed to be a statutory grantee of a right of occupancy under Section 34 (2) of the Act. The full Court in Abioye v. Yakubu (1991) 5 NWLR (pt. 190) 130 held that there is a presumption that a person’s right to his property will not be taken away without provision being made for adequate compensation. There is no evidence that the respondent’s Customary title which is earlier in time than the statutory right of occupancy issued to the appellant was revoked and even if it was revoked, there is nothing to show what compensation was paid. Also, the appellant’s title is not superior to that of the respondent and infact the Borno State Government conveyed nothing to the appellant. Consequently Exhibit “C” conveyed no title whatsoever to the appellant.”
Per AKA’AHS, JSC
​Those leading cases, were cited by the Respondent, but he appeared to have lost sight of the fact that, to successfully fault and defeat the issuance of a valid certificate of occupancy to a party, the party challenging the issuance has to prove (among other things) that his existing customary right or deemed right was subsisting, and was not revoked or properly revoked, before the issuance of the certificate of occupancy to his opponent.

The Respondent had also placed heavy reliance on the Land Use Act 1978, (which has become a Constitutional Provision), made and patterned after the Land Tenure Law of 1962, operative in the old Northern Nigeria, to show that the customary right or deemed right of ownership of the Respondent was subsisting and must be revoked, before a valid certificate of occupancy can be issued over the Respondent’s land, and granted to Appellant; he said that there must be prior revocation of the customary right/interests of the Respondent before any grant is made to Appellant over the land of the Respondent. He relied on Sections 38(1), 28(4) and 35(1) of the Land Use Act, which were applied by the trial Court against Appellant in this appeal.

The Land Use Act came into effect in March, 1978, and the law credited every land holder in the State with existing rights (or deemed rights) of occupancy of the portion he holds, until the same is, expressly, revoked by any exercise of the power, under the Act, to grant express right of Occupancy to any other person, over a given portion of land. See Section 34 of the Land Use Act and the case of Ojah & Ors Vs Ogboni & Ors (1996) LPELR–2367 SC, where it was held:
“…It is gratifying to observe that the Land Use Act 1978 has preserved the right of the non-urban agricultural community engaged in agriculture to continue to use their land in non-urban area for such purposes be they holders or occupiers (see Section 36(1) and (2)). They are deemed to have been granted a customary right of occupancy (see Section 36(2)), and the holder or occupier is entitled to be registered as one to whom a customary right of occupancy has been issued in respect of the land in question if the local government is satisfied that the occupier or holder was entitled to possession of such land whether under customary rights or otherwise howsoever and that the land was being used for agricultural purposes at the commencement of the lease. The Act ensured the continuous use for agricultural purpose by the holder or occupier by the provision in sub-section (5) of Section 36 that: “no land to which this section applies shall be sub-divided or laid out into plots and no such land shall be transferred to any person by the person in whom the land was vested.” and the continuous availability of land for agricultural purposes assured by the prohibition is absolute in sub-section (6) which declared: “Any instrument purporting to transfer any land to which this section relates, shall be void and of no effect whatsoever in law and every party to any such instrument shall be guilty of an offence and shall, on conviction, be liable to a fine of N5,000.00 or to imprisonment for 1 year.” This prohibition is in consonance with the policy of the government in the Federation to ensure the availability of agricultural land and adequate supply of food to feed the nation. That there is land always available for agriculture is also borne out by the provision in sub-section (6) of Section 6 of the Land Use Act which stipulates that “where land in respect of which a customary right of occupancy is revoked under this Decree was used for agricultural purposes by the holder, the local government shall allocate to such holder alternative land for use for the same purpose.” It is significant to observe that while in a direct grant of a statutory right of occupancy by the Governor under Section 5(1) of the Act, the grant extinguishes the rights and interests of all other persons (see Section 5(2)); in a deemed grant under Section 34(2) of the Act, a statutory right of occupancy does not automatically extinguish the interests of other persons such as sub-leases and mortgagees. Their interests are protected under Sub-section (4) of Section 34. Thus, the relationships of lessor and lessee, mortgagor and mortgagee are continued by the Act. It is therefore my view that the Land Use Act never sought to disturb existing relationships.” Per OBASEKI, JSC
See also Union Bank of (Nig) Plc Vs Astra Builders (WA) Ltd (2010) LPELR-3383 (SC):
“The law on this issue according to Sections 22(1) and 26 of the Land Use Act 1978 and as confirmed by this Court in a number of decided authorities is that Section 22(1) stipulates that- “It shall not be lawful for the holder of a certificate of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage or sub transfer of possession, sub-lease or otherwise howsoever, without the consent of the Governor first had and obtained. “Section 26 states that – “Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of the Act shall be null and void.” Per ADEKEYE, JSC
See also Mbanefo Vs Agbu & Anor (2014) LPELR -:
“The provision of Section 22 of the Land Use Act Cap 202 Laws of the Federal Republic of Nigeria has provided in clear terms that no assignment of interest in land can be effected in an area designated as Urban without the consent of the Governor of the State. It is on record that the land, the subject matter of contention is located at Onitsha. The law is also well settled by this Court in the case of Owoniboys Technical Services V. Union Bank of Nigeria (2003) 15 NWLR (pt.844) 545 at 583 that:- “It is the owner of the Statutory Right of Occupancy that is obliged to obtain the consent of the Governor of the State in respect of the land which he wishes to sell, transfer, mortgage etc by virtue of Section 22 of the Land Use Act.” The application of Section 22 of the Land Use Act can only come to play when there is certainty and determination of the location of the land in question. In other words, the responsibility to obtain the Governor’s consent falls on the 2nd respondent only after the confirmation by evidence that the land is indeed located within an urban area. On the record before us, there is no proof or evidence to show that the land was designated an urban area and thus coming within statutory Right of Occupancy.”
Per OGUNBIYI, JSC

​I do not think the Respondent, who paraded documents (Exhibits A, A1, B and B1) that showed that he came into possession of the farmland in 1982 and 2001, respectively, by right of purchase, long after the Land Use Act had come into effect, in 1978, can lawfully claim, lawful and valid rights to the land – 1,403 hectares in dispute and assert a right (or deemed right) of occupancy, meant for land holders, prior to the coming into effect of the Land Use Act in 1978, to be entitled to respect and the honour of being consulted for prior revocation notice, before the governor can exercise his power to grant certificate of occupancy to another on the land, for overriding public interest, assuming the Respondent did not get the revocation notice, as others did, and were compensated.

Of course, upon coming into effect of the Land Use Act, it became unlawful to alienate or transfer interest in land in the State, without the prior consent of the Governor of the State, who holds the lands in the State in trust for the people. See Section 22 of the Land Use Act, which bars transfer or alienation of land by a holder of statutory right of occupancy granted by the Governor of a State. See the case of Olalomi Industries Ltd Vs NIDB Ltd (2009) LPELR–2564 SC, where the Supreme Court held: “There is no doubt that the general intendment of the Land Use Act, the express words vesting title, management and control of the use of land in the Military Governor, the curtailment of the interest of land holder prescribing consent to alienation in all cases. Any failure by a holder under Section 34(2) of the Act to comply with the provisions of Section 22 would attract the full rigor of Section 26 of the Act and render a transaction or an instrument arising therefrom null and void. It was therefore declared that although the 1st Plaintiff/Respondent by the tenor of the Land Use Act committed the initial wrong by alienating his statutory right of occupancy without prior consent in writing of the Governor the express provisions of the Land Use Act makes it undesirable to invoke the maxim “Ex turpi causa non oritur action and the equitable principle enshrined in the case of Buknor Maclean v. Inlaks Ltd. (1980) 8-11 SC 1.” Per ADEKEYE, JSC
I am rather surprised, that the learned trial Judge appeared not to have adverted his legal mind to the above cases and to Section 34(1) and (2) of the Land Use Act, 1978, which states:
(1) “The following provisions of this Section shall have effect of land in an urban area vested in any person immediately before the commencement of this Act.
(2) Where the land is developed the land shall continue to be held by the person in whom it vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.”
Similar provision is also made in Section 36 of the Act, in respect of land in non-urban areas and the holder thereof.
And so, it was completely perverse, in my view, for the learned trial Judge to countenance the documents of purchase of the land in dispute in 1982 and 2001 by the Respondent (Exhibits A, A1, B and B1) and to accord the Respondent with the right of lawful occupier of the said 1,403 hectares of land, after about 4 years and 15 years of coming into effect of the Land Use Act.

And the Survey Plan of the land (Exhibit C) was unsigned and undated, made in the name of 3rd party, who was not joined in the suit, in 2014! The claim appeared scandalous!

The learned trial Judge was, therefore, in error and had misled himself, when he said, as follows (while answering the ultimate question as to which competing claims over the 1,403 hectares of land superseded the other):
“Arising from the foregoing, it is the contention of learned Claimant’s Counsel that mere grant of right of occupancy over a land in respect of which there is already a right of occupancy or an existing interest in favour of another person (as in this case) does not amount to the revocation of the prior right of occupancy or existing interest. That in the instant case evidence is unavailable that the Governor of Jigawa State has validly revoked the title of the Claimant in accordance with Section 28 of the Land Use Act 1978 before he issued Certificate of Occupancy for the same portion of land to the Defendant/Counter Claimant…
Learned Defendant’s/Counter-Claimant’s Counsel contended that the Claimant cannot be heard challenging the Counter Claimant’s Certificate which was granted for industrial purposes, while no single paragraph in the Claimant’s pleadings and testimony the (sic) invalidity of issuance of the Certificate was pleaded…
On the instant contention of learned Claimant’s Counsel, I quite agree that the law is trite and settled that before the Governor can grant a statutory right of occupancy where there is a prior existing right of occupancy as in the instant case certain steps must be taken to validly revoke and grant such right of occupancy to another person or institution as enshrined under the provisions of Section 281 (sic) (1)(4)(6) and (7) of the Land Use Act, 1978. More so in the instant case, the evidence led and tendered vide DW2 and Exhibit H had established that the lands bordering the Claimant’s land which forms part of the Defendant’s land are farmlands whose owners were compensated by the government.” (See page 35–36 of the judgment).

Of course, the case of Ibrahim Vs Obaje (2017) LPELR–43749 SC, which the trial Court relied on is not applicable, because in that case the Respondent who bought the land in 2000 went further to validate the transaction, by obtaining Certificate of Occupancy on it.

Certainly, in my view, there was no evidence of Claimant’s valid “prior existing right of occupancy” in the instant case, and there was nothing to suggest that the original owners of the land, prior to March, 1978, did not even claim compensation over the 1,403 hectares, the trial Court having affirmed that the owners of the other farmlands were compensated by the government!

​That brings me to the issue as to the effect of non-joinder of the Government of Jigawa State as a party to the suit; whether or not the Government of Jigawa State was a critical (necessary) party to the suit. I think the learned trial Judge also erred on this issue, when he failed to consider the Government of Jigawa State a necessary party to a suit, which questioned the Certificate of Occupancy issued by the Government of Jigawa State and sought (and actually obtained) the invalidation order of the said Certificate of Occupancy!

All the questions about the issuance of the Certificate of Occupancy, whether or not it complied with the laws and conditions for its issuance, needed to be answered by the government, which issued the Certificate, not by the recipient (Appellant), and for not joining the person who issued the Certificate of Occupancy, as a party, the Respondent and the trial Court, denied the person (government) the right of fair hearing, before pronouncing on the validity of the Certificate of Occupancy, issued by the government, in my opinion. The Government of Jigawa State was, therefore, a necessary party to the suit.
In the case of NDP Vs INEC (2012) LPELR–19722, the Supreme Court held that:
“A necessary party is someone whose presence is essential for the effectual and complete determination of the issues before the Court. It is a party in absence of whom the whole claim cannot be effectually and completely determined. A necessary party should be allowed to have his fate in his own hands.” Per Fabiyi, JSC
In the case of Poroye & Ors Vs Makarfi & Ors (2017) LPELR–42738 (SC), the trial Court had heard a one sided case of Poroye & Ors, which targeted the Respondents (Makarfi and his group) and took some vital critical decisions against the Respondents, forcing same on the Respondents, without hearing them. An application by the affected Respondents to set aside that decision of the trial Court, for being obtained behind the Respondents, in breach of their fundamental rights of fair hearing, was granted by this Court and affirmed by Apex Court, which held:
“In the case of Akpamgbo-Okadigbo vs Chidi (No. 1) (2015) 3 SCM 141 at 661; (2015) 10 NWLR (Pt.1466) 171 at 198 I stated the position of the law, in a similar situation, as follows:- “Where there is a failure to hear all the necessary parties to the dispute before a decision is reached, there is a breach of Section 36(1) of the 1999 Constitution as amended which has the effect of automatically rendering the proceedings in the action and the judgment or ruling resulting therefrom a nullity and void, without any legal effect.” Now, Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides as follows:- “36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.” It is in accordance with the above constitutional provision that the lower Court stated, in its judgments thus:- “Section 36(1) of the Constitution forbids a Court to make order that affects the interest of a person without hearing him or giving him opportunity to be heard. The right of fair hearing forms the “soul” of any judicial decision/order of Court, and where one has not been heard or given opportunity to be heard, the decision is a complete nullity and cannot be enforced against the party, having not been heard.” I cannot agree more as same represents the law. It is therefore, very clear that the lower Court was on firm ground when it set aside the decision of the trial Court for being in breach of the constitutionally guaranteed right to fair hearing. I hold the strong view that this issue is very fundamental to the appeal and haven resolved it against appellants there is no need to go into any other issue – the decision of the trial Court is, in the circumstance, null and void for haven been reached in breach of the constitutionally guaranteed right of fair hearing of the 1st and 2nd respondents, therefore whatever procedure adopted in arriving at the decision or the substantive law applied to the facts before that Court, cannot be inquired into as same would be delving into the merit of the decision which has been declared null and void in the circumstances.” Per ONNOGHEN, JSC
See also Azubuike Vs PDP & Ors (2014) LPELR–22258 (SC); Peenok Investments Ltd Vs Hotel Presidential Ltd (1982) LPELR–2908 (SC); Sifax Nig. Ltd & Ors Vs Migfo (Nig.) Ltd & Anor (2018) LPELR-49735 (SC); Green Vs Green (1987) 5 NWLR (Pt.61) 480; Azubuike Vs Otujeme (2015) LPELR–25619 (CA); Nzem Vs Nwaikwu & Ors (2020) LPELR–52597 CA.

The Learned trial Judge was therefore in grave error, in my opinion, to have taken up the issuance of the Certificate of Occupancy No. JGLM/IND/2010/4, which the Respondent admitted was issued by the Government of Jigawa State to Appellant, pronounce on it, declaring it invalid, without hearing from the Government, that issued the Certificate of Occupancy.

That erroneous conclusion of the Learned trial Judge was to have effect on the Counter-Claim of the Appellant, when he said:
“On the substantive issue therefore, I am of the view that the Claimant’s right of occupancy over 1,403 hectares of the farmland in dispute still subsist. Such right of occupancy has not been revoked by the government. The government cannot validly vest the Claimant’s portion of the land to the Defendant… The grant of right of occupancy to the Defendant over 1,403 hectares of the Claimant’s portion of the farmland covered by Certificate of Occupancy No. JGLN/IND/2010/4 (sic) is hereby declared invalid. To this extent and in the circumstances the Defendant’s Counter-claim and the entire reliefs thereto must fail as it cannot counter-claim on what it does not have…” (Page 38 of the judgment)

I think Appellant’s Counter-claim was well founded and established in evidence, even as the fact of the Issue of the Certificate of Occupancy No. JGLM/IND/2010/4 by the Government to the Appellant, including the said disputed 1,403 hectares of farmland in the Appellant’s 21,988 hectares, was admitted and asserted by the Respondent.

A Certificate of Occupancy is always held to be a prima facie and/or conclusive evidence of ownership or possession of the land, the subject matter of the certificate. This is trite law, until the person questioning the issuance of the certificate can successfully impeach it. See Olohunde Vs Adeyoju (2000) 10 NWLR (Pt.676) 562; Atanda Vs Iliasu (2013) ALL FWLR (Pt.681) 1469; Kolo Vs Lawan (2018) LPELR–44378 (SC); SUU Vs Jobak Nig. Ltd (2012) LPELR–7932 (CA); Abazuonu & Anor Vs Ejiofor & Ors (2016) LPELR–41518 CA.

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The Respondent’s Counsel had argued that Appellant’s failure to join the Government of Jigawa State to press its Counter-claim, should also work against Appellant. That argument appears faulty, because Appellant did not challenge the issuance of the Certificate to it. It only Counter-claimed against the Respondent, and asserted the Certificate of Occupancy, as its legal authority on the land. 

By law, the presumption of regularity availed the Certificate of Occupancy produced by Appellant, especially as the Respondent, and even the trial Court, admitted the same was issued by the Government of Jigawa State. See the case of Shitta Bey Vs A.G. Fed. & Anor (1998) LPELR–3055 (SC), where it was held:
“Apart from what is called presumption of regularity of official acts, there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the common law maxim in the Latin phrase Omnia praesumuntur rite esse acta. This presumption is very commonly resorted to and applied especially with respect to official acts. See Ogbuanyinya v. Okudo (1990) (No.2) 4 NWLR (Pt. 146) 551 at 570 paragraphs D-E. See also Section 114 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. The learned authors of Phipson on Evidence, Eleventh Edition have this to say on the subject: “The presumption which is nearly akin to that of innocence is chiefly applied to a judicial and official acts, and though sometimes conclusive, is in general only rebuttable.”

I therefore see merit in this appeal, as I resolve the Issues for Appellant and allow the appeal. I set aside the decision of the Learned trial Judge and rather find merits in the Counter-claim of Defendant (the Appellant), as the Respondent could not fault the grant of the Certificate No. JGLM/IND/2010/4 to the Appellant, especially, as the Respondent did not join the Government of Jigawa State in the suit.

The Reliefs in the Counter-claim, therefore, succeed, as follows:
(1) Declaration that Defendant (Appellant) is the lawful occupier of that parcel of land comprising 21,988 hectares, inclusive of the land claimed by Respondent – the 1403 hectares farmland, as per the Certificate of Occupancy No. JGLM/IND/2010/4.
(2) Declaration that the land is an industrial area, consistent with the user clause inserted in the said Certificate of Occupancy.
(3) The Respondent is hereby restrained, by way of permanent injunction, together with his privies or anybody claiming under him, from further trespass and/or interfering with the occupation and possession of the Land in question, by the Appellant.
(4) The Respondent shall be bound to honour whatever existing undertaking between him and the Appellant, over the land.
(5) General damages of N200,000.00 shall be paid to Appellant by the Respondent.

The Respondent shall further pay the cost of this appeal assessed at N100,000.00 (One Hundred Thousand Naira) only.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Ita G. Mbaba, JCA. His Lordship has considered and resolved the issues in the appeal. I do not agree with the reasoning, but I abide the conclusions reached therein.

​This appeal arose out of a land dispute, a dispute over the ownership of a parcel of land covering an area of 1.403 hectares situate, lying and being at Meleri-Rijiya Biyu Dabi along Kano-Vledeija Road in Ringim Local Government Area of Jigawa State. The case of the Respondent was he was the bona fide owner of the parcel of land and which initially made up of two portions. It was his case that one portion originally belonged to one Ba’ayye Sarkin Mayu, who first cultivated the land, and subsequently sold same to one late Mallam Bashari 1942 and that he purchased that portion of the land from the heirs of late Mallam Bashari in 1982. It was his case that the second portion originally belonged to one Naraya and who sold the land to one Inuwa Dakuro and who in turn sold the land to one Ado Muhammad Dabi and who sold the land to him in 2001.

​It was the case of the Respondent that upon the purchase of the second portion of land, he merged it with the first portion to form a big parcel of land and that the parcel of land bordered Kano-Hedeiia Road on the south, the farmland of one Bashir Dakuro in the east, the farmland of one Mallam Musa Tela on the north and the farmlands of Tela Ubani Musa Gale and Nayaya Mai Awaki on the west. It was his case that he had been in unhindered physical possession of the land since the purchases and had carried farming thereon without let or disturbance from anyone. It was his case that in 2010, he decided to set up a local industry on the land and he caused his surveyor to carry out a survey of the land and he affixed the signboard of his company, Asaimador General Enterprises Co. Ltd, thereon.

It was the case of the Respondent that he continued his undisturbed possession until around December 2017 when the Appellant came unto the parcel of land and started excavating same with intent of building thereon. Consequently, the Respondent claimed for a declaration that he is the person entitled to a Right of Occupancy over of title claimed — Atuanya Vs Onyejekwe (1975) 5 ESCLR 359, Obawole Vs Coker (1994) 5 NWLR (Pt 345) 416, Adesanya vs Aderonmu (2000) 9 NWLR (Pt 672) 370 at 382, Bassey vs Pamol (Nig) Ltd (2009) 6 NWLR (Pt 1136) 36, Edohoeket vs Inyang (2010) 7 NWLR (Pt 1192) 25, Obineche vs Akinsobi (2010) 12 NWLR (Pt 1208) 383. 

It is trite that where a claimant fails to prove the base upon which he founded his title, the claim must fail — Odofin Vs Ayoola (1984) 11 SC 72, Mogaji vs Cadbury (Nig) Ltd (1985) 2 NWLR (Pt 7) 393 at 395, Ajibona vs Kolawole (1996) 10 NWLR (Pt 476) 22. 

The act of vesting legal title in respect of a parcel of land in a person is a matter of law to be deduced from the facts and evidence admitted by the Court — Nasir Vs Abubakar (1997) 4 NWLR (Pt 497) 32, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1.
There are five recognized ways of proving ownership of land in Nigeria. These are: (i) by evidence of traditional history; (ii) by documents of title which are duly authenticated in the sense that due execution must be proved; (iii) by acts of ownership such as selling, leasing, renting out or farming on all or part of land and which are numerous and positive enough and extending over a sufficient length of time to warrant the inference that the party was the true owner of the land; (iv) by acts of long possession and enjoyment of the land which pima facie may be evidence of ownership; and (v) by proof of possession of connected or adjacent land in circumstances that render it probable that the owner of such connected or adjacent land would be the owner of the land – Nwokidu vs Okanu (2010) 3 NWLR (Pt 1181) 362, Obineche Vs Akusobi (2010) 12 NWLR (Pt 1208) 383, Maigari Vs Mailafiya (2011) 1 NWLR (Pt 1228) 379, Dakolo vs Rewane-Dakolo (2011) 16 NWLR (Pt 1272) 22, Ibude vs Saidi (2021) 10 NWLR (Pt 1785) 567.

The Respondent, on his pleadings, predicated his case of ownership of the land in dispute on purchases of the two portions making up the land in 1982 and 2001 and he averred that he went into possession of each of the portions of land after their respective purchases and remained in possession thereof without disturbance until sometime in December 2017. In other words, the Respondent pleaded purchase of the land as his primary source of ownership of the land; he did not predicate his ownership of the land on long possession and enjoyment of the land in dispute, as wrongly found by the lower Court. The Respondent merely pleaded possession and enjoyment of the land as acts of his ownership of the land.

​It is settled law that where a claimant pleads a primary method of establishing title, such as, traditional history or documents of title, and he also pleads acts of ownership and possession which are dependent on that main method of establishing title, he cannot succeed if he fails to prove that main method of establishing title to land. In such a case, the acts of possession and ownership are done because, and in pursuance, of the ownership. Such alleged acts of possession, dominion and the like are merely derivative from the title or ownership of the land in dispute; ownership forms the quo warranto of these acts as it gives legality to the acts of possession and ownership which would otherwise have been acts of trespass — Odofin Vs Ayoola (1984) 11 SC 72, Ogungbemi Vs Asamu (1986) 3 NWLR (Pt 27) 161, Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Balogun vs Akanji (1988) 1 NWLR (Pt 70) 301, Maneke Vs Maneke (2020) 13 NWLR (Pt 1741) 311. In Lawal vs Olufowobi (1996) 10 NWLR (Pt 477) 177, Belgore, JSC put the point thus at page 188 A-B
“The root of title, in cases like the one now on appeal, once pleaded as raison d’etre for the presence of the person pleading must be proved to the satisfaction of the Court. Because if the root of title depended upon is defective or remains unproved, the possession claimed is illusory and it may, in the end, be an act of trespass. The appellants failed to prove their root of title, their traditional history on the land having failed to hold any water. Thus, if the pleaded root of title is not established by evidence as is the case here it is a futile exercise to go into the issue of possession or acts of ownership.”
No amount of use or the length of period of usage could confer ownership of land on such a user and it behoves such a party to prove his title in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of land in dispute cannot precede title nor can it indicate same — Registered Trustees of the Apostolic Faith Mission Vs James (1987) 3 NWLR (Pt 61) 556, Nwaeseh Vs Nwaeseh (2000) 3 NWLR (Pt 649) 391, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332, Olubodun vs Lawal (2008) 17 NWLR (Pt 1115) 1.
Thus, acts of ownership and possession can only properly be considered where the root of title is pleaded and established by cogent and convincing evidence — Orlu vs Gogo-Abite (2010) 8 NWLR (Pt 1196) 307, Odunukwe vs Ofomata (2010) 18 NWLR (Pt 1225) 404, Gbadamosi vs Okege (2011) 3 NWLR (Pt 1233) 175, Ogunleye Vs Jaiyeoba (2011) 9 NWLR (Pt 1525) 339. This principle was reiterated by the Supreme Court in Oyadare vs Keji (2005) 7 NWLR (Pt 925) 571 when the Titiloye vs Olupo (1991) 7 NWLR (Pt 205) 219, Gankon vs Ugochukwu Chemical Ind. Ltd (1993) 6 NWLR (Pt 297) 55, Dabup vs Kolo (1993) 9 NWLR (Pt 317) 254, Adole vs Gwar (2008) 11 NWLR (Pt 1099) 562, Shell Petroleum Development co. Nigeria Ltd vs Amadi (2010) 13 NWLR (Pt 1210) 82. 

A certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked.
The law, however, recognizes that the presumption is rebuttable because if it proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy then the Court can revoke it — Ilona Vs Idakwo (2003) 11 NWLR (Pt 830) 53, Ezeanah vs Attah (2004) 7 NWLR (Pt 873) 468, Din vs Attorney General, Federation (2004) 12 NWLR (Pt 888) 459, CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530, G.C.M. Ltd vs Travellers Palace Hotel (2019) 6 NWLR (Pt 1669) 507, Udok vs Udoekong (2020) 12 NWLR (Pt 1739) 492, Obanigba vs Abibu (2021) 3 NWLR (Pt 1762) 84. In other words, a certificate of occupancy is a prima facie evidence of title or exclusive possession and exclusive rights provided for in favour of a person in possession of such a certificate, but if it is successfully challenged, it can be nullified — Registered Trustees of Apostolic Church Vs Olowoleni (1990) 6 NWLR (Pt 158) 514, Auta vs Ibe (2003) 13 (Pt 837) 247, Edebiri vs Daniel (2009) 8 NWLR (Pt 1142) 15, Edohoeket vs Inyang (2010) 7 NWLR (Pt 1192) 25, Okunowo Vs Molajo (2011) 3 NWLR (Pt 1235) 434, Kolo Vs Lawan (2018) 13 NWLR (Pt 1637) 495, Aderonpe vs Eleran (2019) 4 NWLR (Pt 1661) 141. ​The onus was thus on the Respondent to prove a better title to the land in dispute in order to displace the Certificate of Occupancy of the Appellant to the land. 

It is trite that for the Respondent, he must establish the method by which he acquired the title to the land; ownership of land cannot be claimed without first establishing that ownership — Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Onwugbufor Vs Okoye (1996) 1 NWLR (Pt 424) 252, Oyeneyin vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. The law is that to succeed in a claim of ownership of land, the Court must be satisfied as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature the parcel of land, declaration that he is the bona fide owner of the parcel of land, declaration that the incursion of the Appellant into the parcel of land amounted to trespass, the sum of N20 Million as damages for trespass, and an order of perpetual injunction to restrain further trespass.

​The case of the Appellant in response was that, by a letter of grant dated the 22nd of November, 2011, the Jigawa State Government granted it a large parcel of land measuring 21.988 hectares for industrial purposes and the portion of land granted to it was inclusive of the parcel of land in dispute. It was its case that the grant was subsequently evidenced by a Certificate of Occupancy No JGLM/IND/2010/4 dated the 29th of November, 2011 and that it subsequently went unto the granted portion of land in 2011, inclusive of the parcel of land in dispute, and exercised all acts of possession, ownership and control thereof.

The Appellant denied the entire case of the Respondent and it was its case that the purchases of land pleaded by the Respondent were invalid and ineffective because they required the consents by the provisions of the Land Use Act and that the documents of purchase were thus void, illegal and unenforceable. The Appellant counter-claimed for a declaration that it is the lawful occupier of the large parcel of land measuring 21.988 hectares, inclusive of the land in dispute, by virtue of the Certificate of Occupancy and for orders of permanent injunctions restraining the Respondent from further trespassing into the land in dispute.

The matter proceeded to trial and at the conclusion of which the lower Court found in favor of the Respondent and it granted the declaratory orders sought by the Respondent and it dismissed the counter-claim of the Appellant. Hence, this present appeal. One of the issues agitated in this appeal is whether it was proper and correct for the lower Court to have granted the declaratory claims of the Respondent in the face of the Certificate of Occupancy No JGLM/IND/2010/4 dated the 29th of November, 2011 issued in favour of the Appellant by the Jigawa State Government and which covered the land in dispute.

It is settled law that by virtue of Section 5 of the Land Use Act, once the Governor has granted a statutory right of occupancy over a parcel of land, within the area of his authority, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished — Saude Vs Abdullahi (1989) 1 NWLR (Pt 116) 387, Abioye vs Yakubu (1990) 5 NWLR (Pt 190) 130.

Court held that where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn round to rely on acts of ownership and possession to prove his title to the land because once the foundation of his title, the traditional history, has failed, there would be nothing on which to found acts of ownership.


​The case of the Respondent on the purchase of the land was that one portion of the land originally belonged to one Ba’ayye Sarkin Mayu, who first cultivated the land, and subsequently sold same to one late Mallam Bashari 1942 and that he purchased that portion of land from the heirs of late Mallam Bashari in 1982. It was his case that the second portion of the land originally belonged to one Nayaya and who sold the land to one Inuwa Dakuro and who in turn sold the land to one Ado Muhammad Dabi and who sold the land to him in 2001. 

It is settled law that a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party — Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 239, Ibikunle Vs Lawani (2007) 3 NWLR (Pt 1022) 580, Egbuta vs Onuna (2007) 10 (Pt 1043) 285, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332, Ezeigwe Vs Awudu (2008) 11 NWLR (Pt 1097) 158. This onus generally does not shift and must be discharged by clear, emphatic, satisfactory and cogent evidence – Kaiyaoja vs Egunla (1974) 12 SC 55, Ofem vs Ejukwa (1994) 2 NWLR (Pt 326) 303, NITEL Plc vs Rockonoh Property Co. Ltd (1995) 2 NWLR (Pt 378) 473, lgyuse vs Ocholi (1997) 2 NWLR (Pt 487) 352.

Thus, the question is — whether the lower Court was correct when it found that the Respondent led cogent and credible evidence to prove his purchase of the land in dispute? Again, I go back to the pleadings of the Respondent. It was his case that he derived his title from other persons who owed the parcel of land before him; that one portion of the land originally belonged to one Ba’ayye Sarkin Mayu, who first cultivated the land, and subsequently sold same to one late Mallam Bashari 1942 and that the heirs of late Mallam Bashari sold that portion of land to him in 1982; and that the second portion of land originally belonged to one Nayaya and who sold the land to one Inuwa Dakuro and who in turn sold the land to one Ado Muhammad Dabi and who sold the land to him in 2001

​The law postulates that where a party claiming ownership of land traces his root of title to a particular person family or community, he must plead and lead evidence to establish how that person, family or community came to have the title vested in him. Without proving that radical title, his claim will fail — Mogaji Vs Cadbury Nigeria Ltd (1985) 2 NWLR (Pt 7) 393, Ogunleye vs Oni (1990) 2 NWLR (Pt 135) 745, Uche vs Eke (1992) 2 NWLR (Pt 224) 443, Owhonda vs Ekpechi (2003) 17 NWLR (Pt 849) 326, Ajibulu vs Ajayi (2004) 11 NWLR (Pt 885) 458. This is an off-shoot of the general principle that where in a claim for ownership of land, the claimant relies on derivative title, he must not only plead and prove how he derived his title, but also the title of the person from whom he claims to have derived title. In Ngene vs Igbo (2000) 4 NWLR (Pt 651) 131, Iguh,JSC at 149 A-C observed:
“It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how that person or family derived his or its title to such land. Accordingly, the plaintiff, to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet, meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such land particularly where as in the present case, the defendant did not concede ownership of the land by the plaintiff’s grantors but expressly denied same.”
​The records of appeal show that the Respondent called three witnesses in proof of his case and of all the three witnesses, only the first claimant witness attempted to give evidence in proof of the ownership of the portions of land by the persons from whom the Respondent averred that he purchased them. The evidence given by the witnesses on how the heirs of Mallam Bashari came to own the first portion of land they sold to the Respondent in 1982 was at variance with the case of the Respondent on the pleadings. The Respondent pleaded that the land originally belonged to one Ba’ayye Sarkin Mayu, who first cultivated the land, and subsequently sold same to one late Mallam Bashari in 1942 while the witness testified that the land originally belonged to the father of Mallam Bashari, who first cultivated same, and that Mallam Bashari inherited the land on the death of his father. This variance discredited the case of the Respondent on the ownership of the first portion of lite land in dispute. It is elementary that in discharging his onus of proof, a party must be consistent in presenting his case. This means that the pleadings and the oral evidence should tell the same story. They should not tell different stories — Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332.
With regard to the second portion of land, the case of the Respondent on the pleadings and in the evidence of the first claimant’s witness was that the portion of land originally belonged to one Nayaya, who sold to one Inuwa Dakuro, who in turn sold the land to Ado Muhammad Dabi and who sold the land to the Respondent in 2001. Neither on the pleadings nor in the evidence of his witness, did the Respondent State how the said Nayaya came to originally own the land — was it by conquest, first settlement or first cultivation? The Respondent did not also plead or lead evidence of what Nayaya did to affirm his original ownership of the portion of land.

This omission deflates the case of the Respondent on the ownership of the second portion of the land in dispute — Ezinwa Vs Agu (2004) 3 NWLR (Pt 861) 431, Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Nwokorobia vs Nwogu (2009) 10 NWLR (Pt 1150) 553, Nwokidu vs Okanu (2010) 3 NWLR (Pt 1181) 362, Oko vs Okenwa (2010) 3 NWLR (Pt 1181) 406, Jiya vs Awumi (2011) 4 NWLR (Pt 1238) 467. In Dike Vs Okoloedo (1999) 7 SCNJ 248 at 257, the Supreme Court made the point succinctly when it held that:
“…. it is not sufficient for the Appellants to say that the land in dispute belonged exclusively to the Uzuezikokwe family from time immemorial and stop there. They must show how that family got it either from some other persons or authority in succession or that they found it a virgin land and deforested it.”
This failure of the Respondent to plead and lead cogent evidence of the ownership of the land in dispute by the persons from whom he derived his title shatters the very foundation of his claim of ownership of the land. In Makon Engineering & Technical Services Ltd Vs Nwokedinkor (2020) 5 NWLR (Pt 1716) 165, this Court made this point thus:
“In a declaration of title to land, for a party to succeed, he must plead and prove the method by which he acquired the title. Where a party bases his claim for declaration of title to land on inheritance, it is not enough for to testify that he inherited the land in dispute; he must also adduce evidence of how the person from whom he inherited acquired the land in dispute. In the instant case, the 2nd appellant pleaded that the land in dispute was deforested by his forbear and that he inherited the land from his late father. However, there was no evidence to show from whom the land devolved to the 2nd appellant’s father. The 2nd appellant’s root of title was shaky or non-existent. He failed to plead and lead evidence on a credible root of title ….”

The Respondent did not thus discharge the burden of proof on him to establish a better title to the land in dispute to displace the Certificate of Occupancy issued in favour of the Appellant over the land in dispute by the Jigawa State Government. 

The finding of the lower Court otherwise was erroneous. The grant of the claims of the Respondent and the dismissal of the counter-claim of the Appellant are thus not sustainable.

I wish to state that I do not agree with the submission of Counsel to the Appellant that a party cannot acquire a viable title to land after 1978 because of the provisions of the Land Use Act without first obtaining the consent of the Governor to the transactions passing the title to the land. The law is that a document of title to land that does not have the consent of the Governor will still sustain a claim for title provided it is coupled with possession of the land in question. Such a document vests in its holder, in such circumstances, an equitable interest in the property in its terms which will become a legal interest on obtaining the consent of the Governor and that such equitable interest would sustain action for ownership of the property —Obijuru Vs Ozims (1985) 2 NWLR (Pt 6) 167, Omo-Bare Vs New Nigerian Bank Ltd (1986) 1 SC 77, Registered Trustees of the Apostolic Faith Mission Vs James (1987) 3 NWLR (Pt 61) 556, Adesanya vs Otuewu (1993) 1 NWLR (Pt 270) 414, Iragunima Vs Uchendu (1996) 2 NWLR (Pt 428) 30, Iragunima Vs Rivers State Housing and Property Development Authority (2003) 12 NWLR (Pt 834) 427, Amadi Vs Nsirim (2004) 17 NW (Pt 901) 111, Mohammed Vs Farmers Supply Co (KOS) Ltd (2019) 17 (Pt 1701) 187.

The rationale for this position of the law is that, in applying the provisions of Sections 21 and 26 of the Land Use Act, the Courts recognize that there are two broad stages culminating into the vesting of title to a purchaser in a land transaction. The first stage is the agreement or contract stage. At this stage of entering into a contract for sale of land, no alienation takes place and this is up to the point of arriving at a binding contract and as such no consent of the Governor is required as a legal prerequisite at this stage. The second stage involves alienating or transferring the vendor’s right of occupancy and which is done by a conveyance or deed and because this stage invariably involves the vesting of title in the purchaser, consent of the appropriate Local Government Chairman must, as a legal prerequisite, be sought and obtained — Awojugbagbe Light Industries Ltd vs Chinukwe (1995) 4 NWLR (Pt 390) 379, Owoniboys Technical Services Ltd Vs Union Bank of Nigeria Plc (2003) 15 NWLR (Pt 844) 545, Olowu vs Building Stock Ltd (2010) 2 NWLR (Pt 1178) 310, Mustapha Vs Abubakar (2011) 3 NWLR (Pt 1233) 123. These two stages of a sale of land transaction were explained by Uwaifo, JSC in International Textile Industries (Nig) Ltd Vs Aderemi (1999) 8 NWLR (Pt 614) 268 at page 299 thus:
“The position of S. 22 of the Act is clearly this; a holder of a right of occupancy may enter into an agreement or contract, with a view to alienating his said right of occupancy. To enter into such agreement or contract, he does not need the consent of the Governor. He merely operates within the first stage of a “transfer on sale of an estate in land” which stage ends with the formation of a binding contract of sale constituting an estate contract at the best. But when he comes to embark on the next stage of alienating or transferring his right of occupancy which is done by a conveyance or deed culminating in vesting the said right in the ‘purchaser’, he must obtain the consent of the Governor to make the transaction valid. If he fails to, then the transaction is null and void under S. 26 of the Act. In my view, it is necessary to bear these two stages clearly in mind.”
​In other words, it is not correct to say that failure to obtain the prior consent of the Governor before the parties enter into a transaction transferring ownership of land means that the transaction is null and void — Iragunima Vs Rivers State Housing and Property Development Authority (2003) 12 NWLR (Pt 834) 427, Omozeghian Vs Adjarho (2006) 4 NWLR (Pt 969) 33, Brossette Manufacturing Nig. Ltd vs Messrs Ola Ilemobola Ltd (2007) 14 NWLR (Pt 1053) 109, Mohammed Vs Abdulkadir (2008) 4 NWLR (Pt 1076) 111. Indeed, there must be a valid and subsisting contract for alienation of land in existence before the question of obtaining the consent of the Governor to the transaction can arise — Dahiru Vs Kamale (2005) 9 NWLR (Pt 929) 8, Pharmatek Industrial Projects Ltd Vs Trade Bank Nigeria Plc (2009) 13 NWLR (Pt 1159) 577.
​Thus, the Sale Agreements tendered by the Respondent in proof of his purchases of the land in dispute, Exhibits A, A1, B and B1, were not null and void by virtue of the fact that the parties were yet to obtain the consent of the Governor of Jigawa State to the transaction. It is irrelevant that the documents were executed in 1982 and 2001 respectively because there is no time limit to the obtaining of consent to a transaction— Pharmatek Industrial Projects Ltd vs Trade Bank Nigeria Plc (2009) 13 NWLR (Pt 1159) 577, Jagaba vs Umar (2016) LPELR-40466(CA).

Also, I am not persuaded by the contention of Counsel to the Appellant that the Jigawa State Government was a necessary party to the action because the question of the validity of a Certificate of Occupancy issued by the Governor of Jigawa State was one of the matters up for adjudication. 

It is settled law that a necessary party to an action is someone who is not only interested in the subject-matter of the proceedings but also who in his absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless he is a party to the action instituted by the plaintiff — Green Vs Green (1987) 3 NWLR (Pt 61) 480, Olawoye Vs Jimoh (2013) 13 NWLR (Pt 1371) 362, Poroye vs Makarfi (2018) 1 NWLR (Pt 1599) 91, The Incorporated Trustees, Chapel of Goodnews Vs Kaduna State Government (2021) 12 NWLR (Pt 1789) 146.
​The claim of the Respondent before the lower Court was for declaration of ownership of the parcel of land in dispute and the Appellant counter-claimed for declaration of ownership of the land. The case of the Appellant was that it derived its title to the land from the Jigawa State Government by virtue of a Certificate of Occupancy. The task before the lower Court was – who between the Respondent and the Appellant proved a better title to the land in dispute? The Respondent did not make any claim against the Jigawa State Government nor did it make any allegation against the Jigawa State Government in his Statement of claim. To accede to the contention of Counsel to the Appellant that the joining of the Jigawa State Government was necessary for the determination of the claims of the Respondent will be tantamount to holding that whenever there is a claim of ownership of land, all predecessors-in-title of the parties should be made parties.
​The law is that upon the transfer of interest in the land by a deed of assignment, deed of conveyance or certificate of occupancy, a vendor or predecessor-in-title ceases to have any interest in the land and all the rights and interests in the said property revert to or become vested in the new owner — lge Vs Farinde (1994) 7 NWLR (Pt 354) 42, Amodu vs Ajebo (1995) 7 NWLR (Pt 406) 170, Okoli vs Ojiakor (1997) 1 NWLR (Pt 479) 48, Yusuf vs Kode (2002) 6 NWLR (Pt 762) 231, Jinadu vs Esurombi-Aro (2009) 9 NWLR (Pt 1145) 55, Oni vs Olokun (1995) 1 NWLR (Pt 370) 189. The vendor or predecessor-in-title has nothing to protect in the land. It was not the case of either of the parties that after the grant of the Certificate to the Appellant, the Jigawa State Government retained possession, custody and title to the land in dispute; it is only in such a situation that the Jigawa State Government became a necessary party — Onemu Vs Commissioner, Agriculture & Natural Resources, Asaba (2019) 11 NWLR (Pt 1682) 1. The Jigawa State Government had no interest to protect in the parcel of land in dispute after its divestment of the land in favour of the Appellant. It was thus not a necessary party to the resolution of the issue presented by the parties for adjudication to the lower Court. It was, at best, a necessary witness on the side of the Appellant.

​In conclusion, I agree with the lead judgment that there is merit in the appeal, albeit for different reasons. I hereby allow the appeal and set aside the judgment of the High Court of Jigawa State delivered in Suit No JDU/34/2018 by Honorable Justice Abubakar Sambo Mohammed on the 14th of April, 2020. I abide by all the consequential orders in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft, the lead judgment delivered by my learned brother, Ita G. Mbaba, JCA. His Lordship had dealt with the issues raised before us. For the reasons given, I too find merit in the appeal. The decision of the trial Court is set aside. The reliefs sought in the counter-claim succeeds.

Appearances:

A.B. MAHMOUD ESQ SAN with him SEFIULLAHI OSENI EQ, FARIHA SANI ABDULLAHI ESQ, YAHAYA ISAH ABDULRASHEED ESQ and ABDULRAHMAN YUSUF MOHAMMAD ESQ. For Appellant(s)

ADAMSI M.M. KALAUDI For Respondent(s)