CORAM

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Danlami Zama Senchi Justice of the Court of Appeal

Ruqayat Oremei Ayoola Justice of the Court of Appeal

Polycarp Terna Kwahar Justice of the Court of Appeal

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PARTIES

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1. DR. ADEYINKA ADEDEJI

2. ALHAJI AHMED TUKUR

APPELLANTS 

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1. OKEY NWOSU

2. YAKUBU MU’AZU

(Suing through his Attorney CHIEF RALPH OKEY NWOSU 3. ATTORNEY GENERAL OF LAGOS STATE

4. GOVERNOR OF LAGOS STATE

RESPONDENTS 

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AREA(S) OF LAW

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PROPERTY LAW, LAND LAW, CERTIFICATE OF OCCUPANCY, TRESPASS, POWER OF ATTORNEY, LOCUS STANDI, EVIDENCE, APPEAL, PRACTICE AND PROCEDURE, COMPETING TITLES, BURDEN OF PROOF, INJUNCTION, DAMAGES

 

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SUMMARY OF FACTS

The 1st Appellant commenced suit at the Lagos State High Court claiming ownership of Plot No. 3 Block 135, Lekki Residential Scheme 1, Eti-Osa Local Government Area, Lagos, and seeking various reliefs including declaration of title, perpetual injunction, and damages. The 1st Appellant’s case was that in 2004, he purchased the land from the 2nd Appellant who was allocated the land by the 4th Respondent through a letter of allocation dated 14th April, 1994 and a certificate of occupancy No 66/66/1994T dated 3rd November, 1994. The 1st Appellant erected a dwelling house and enjoyed undisturbed possession until February 21, 2007 and March 5, 2007 when purported military men acting at the instance of the 1st and 2nd Respondents invaded the premises and caused destruction to his property. The 1st Respondent filed a Statement of Defence and counter-claim, claiming to act as attorney for the 2nd Respondent (Yakubu Muazu) and asserting that the 2nd Respondent held a valid Certificate of Occupancy dated December 6, 1991 over the same land. However, the 1st Respondent failed to tender the alleged Power of Attorney in evidence. The trial court dismissed the 1st Appellant’s claim for failure to prove title and struck out the counter-claim for incompetence. The Appellants appealed to the Court of Appeal, which allowed the appeal in part, declaring the 1st Appellant as the owner of the property and granting perpetual injunction, but dismissing the claims for damages.

 

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HELD

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1.The appeal was allowed in part.

2.The Court declared the 1st Appellant as the owner and person entitled to the statutory rights of occupancy in respect of Plot No. 3, Block 135, Lekki Residential Scheme I, Eti-Osa Local Government Area, Lagos.

3.The Court granted an order of perpetual injunction restraining the defendants from entry into the Appellant’s property.

4.The Court dismissed the Appellant’s claims for damages (claims III, IV and V on the Writ of Summons).

5.The Court affirmed that the lower Court was right to strike out the counter-claim for incompetence.

6.No order as to costs was made.

 

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ISSUES

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1.Whether having regard to the requirements for acquisition of state land, the mere possession of a certificate of occupancy by a holder is sufficient and conclusive proof of title to State land?

2.Whether the learned trial judge was right when he held that the 1st Appellant ought to have tendered the documents of sale of the land to him to prove that he is beneficial owner thereof?

3.Whether in view of the finding that the 1st Respondent failed to prove his case, the lower Court was right when it struck out the said case instead of ordering an outright dismissal of the said case?

 

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RATIONES DECIDENDI

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CERTIFICATE OF OCCUPANCY – WHETHER PRIMA FACIE OR CONCLUSIVE EVIDENCE OF TITLE

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“A certificate of occupancy only gives the right to use and occupy land. It neither confers nor is it necessarily an evidence of title.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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COMPETING TITLES FROM COMMON GRANTOR – PRIORITY PRINCIPLE

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“Where the two or more competing documents of title upon which parties to a land in dispute rely for their claim of title to such land originated from a common grantor, the doctrine of priorities dictates that the first in time takes priority – qui prior est tempore, potior est jure- meaning that he who is first has the strongest right.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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CERTIFICATE OF OCCUPANCY – DEFECTIVE ISSUANCE AND VALIDITY

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“where a Certificate of Occupancy has been granted to one of two claimants who has not proved a better title, it must be deemed to be defective, to have been granted or issued erroneously and against the spirit of the Act and the holder would have no legal basis for a valid claim over the land in dispute.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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REGISTRATION OF CERTIFICATE OF OCCUPANCY – EFFECT ON IRREGULARITIES

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“It need be stressed or always borne in mind as this is also settled, that the registration of a Certificate of Occupancy does not and cannot, cure or validate any irregularities in its procurement. This is why there is the need for a person seeking such registration, to make prior enquiries and search.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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CERTIFICATE OF OCCUPANCY – TRESPASS AND VALIDITY

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“It is settled that a certificate of occupancy does not confer a legal right to possession where such possession was procured through acts of trespass. In other words, possession cannot be properly and validly secured by an act of trespass, or acquisition of a Certificate of Occupancy procured after this trespass.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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NEMO DAT QUOD NON HABET – APPLICATION TO LAND GRANTS

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“It is settled law and in accordance with common sense that after a party has effectively divested himself of his interest in land or other res, no right naturally vests in him to deal with such land or res any further for nemo dat quod non habet, meaning that no one can give that which he does not have.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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BURDEN OF PROOF – HE WHO ASSERTS MUST PROVE

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“He who asserts must prove. The language of Section 135 (1) of the Evidence Act, Cap E 14 LFN 2004 is that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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POWER OF ATTORNEY – REQUIREMENT TO PROVE AUTHORITY

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“It is trite law that a person who purports to act in a representative capacity must demonstrate lawful authority. In this case, the 1st Respondent based his authority on a document; it behoves him to tender such a document in evidence. The failure to do so is at the peril of his case.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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UNAUTHORIZED REPRESENTATION – EFFECT ON PROCEEDINGS

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“Accordingly, the 1st defendant, who filed a statement of defence and counter-claim had no locus standi to do so. His appearance is a nullity, and all steps taken by him in the Suit are incompetent. The purported defence and evidence led by him ought to have been discountenanced by the lower Court.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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COUNTERCLAIM – REQUIREMENT FOR VALID CONSTITUTION

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“A counter-claim is an independent cause of action and must be validly constituted. The learned trial judge was right to hold that the Court will lack jurisdiction as the counter-claim is incompetent. I am of the view that the counter-claim, being incompetent and the Court having no jurisdiction, thereby having been initiated by an unauthorized person, the lower Court was right to have struck out the said counter-claim.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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CERTIFICATE OF OCCUPANCY – PRESUMPTION OF TITLE

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“Even though the Certificate of Occupancy raises a presumption of title to land, it is not conclusive evidence of any right to a valid title in favour of the grantee.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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COMPETING CERTIFICATES OF OCCUPANCY – ESTABLISHING SUPERIOR TITLE

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“I hold that an earlier C of O cannot defeat a later one unless the holder establishes a better root of title, actual possession or prior grant – none of which has been shown in this case. In the instant case, the 1991 C of O is not tied to any party before the Court. The Appellant’s C of O exhibit C14A stands unchallenged and is supported by evidence of possession and continuous occupation.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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COURT OF APPEAL JURISDICTION – SECTION 15 POWERS

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“Section 15 of the Court of Appeal Act 2021 gives this Court full jurisdiction over the whole proceedings as if the proceedings had been instituted in this Court of Appeal as a Court of first instance and may make such orders as the Court may deem necessary.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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Land Use Act

Evidence Act 2011

Court of Appeal Act 2021

Land Instruments Registration Law of Lagos State

Statute of Frauds, 1677

 

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