CORAM

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IBRAHIM TANKO MUHAMMAD, JUSTICE, COURT OF APPEAL

OLUKAYODE ARIWOOLA,JUSTICE, COURT OF APPEAL

KUMAI BAYANG AKA’AHS,JUSTICE, COURT OF APPEAL

AMINA ADAMU AUGIE, JUSTICE, COURT OF APPEAL

PAUL ADAMU GALINJE, JUSTICE, COURT OF APPEAL

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PARTIES

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ALHAJI ABATCHA MOHAMMED KOLO

APPELLANTS 

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ALHAJI MOHAMMED LAWAN

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

In suit No. M/187/1996, the Respondent sued one Mohammed Ali over a disputed land wherein, Mohammed Ali claimed he purchased the land from the Appellant, Alhaji Abatcha Mohammed Kolo who surrendered a Certificate of the Right of Occupancy. 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 15 October 1995, the Respondent on the other hand based his claim on 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. After the purchase, he took possession and sometimes in 1987, he decided to convert his customary right of occupancy to statutory right of occupancy. He submitted an application to Borno State Government for that purpose and his application a file no. BO/30798 was assigned to him as his certificate number. In 1996 when one Alhaji Mohammed Ali who claimed his title through the present Appellant by purchase entered the land and started fencing it, this prompted the Respondent to sue Mohammed Ali. The said suit was heard by the High Court of Borno State and judgement was entered in favour of the Respondent. Mohammed Ali was aggrieved and appealed against the said judgement to the Court of Appeal Jos in appeal No. CA/J/17/2004. During the pendency of the appeal, the present Appellant instituted suit No. M/172/2006 leading to the present appeal against the Respondent claiming the following declarative reliefs and orders: (i) that judgement in Suit No. M/132/96 delivered on 5/4/2006 is nullity having been obtained by fraud. (ii) that the Plaintiff is the title holder of the land covered by Certificate of Occupancy No. BO/12336 (iii) an order directing the Defendant to give possession/vacant possession to the Plaintiff forthwith (iv) an order restraining the Defendant from trespassing or interfering with the land covered by Certificate of Occupancy No. BO/12336; and damages. During the trial of the case, the certificate of occupancy No. BO/12335 was tendered as Exhibit C and at the conclusion of the case, judgement was again entered in favour of the Respondent. The certificate of occupancy was declared void as there was in existence at the time it was issued, a deemed right of occupancy over the same land to the Respondent. The Appellant unsuccessfully appealed to the Court of Appeal leading to the present appeal.

 

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HELD

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Appeal Dismissed.

 

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ISSUES

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Whether or not their Lordships of the lower Court were right when they relied on unpleaded and unproved facts to hold that the respondent has proved that he bought the land in dispute since 1977 and traced his root of title to four generations of vendors. Whether in the circumstances of this case, especially considering that the respondent failed to tender the purchase receipt to prove that he bought the land in 1977 or any document to show the size(s) and location of the land he bought and there being no evidence of any development on the land by the respondent, whether their Lordships of the lower Court were right to hold that the respondent was entitled to be deemed to have the statutory right of occupancy over the land in dispute by virtue of Section 34 (1) and (2) of the Land Use Act, 1978. Whether or not from the pleadings and evidence before the lower Court, the lower Court was right when it held that the appellant did not prove that the Borno State Government have authority to grant the Certificate of Occupancy to the appellant as there was no proper proof of acquisition and revocation of the piece of land by the Borno State Government. Whether or not their Lordships of the lower Court were right in holding that the twain issues of “acquisition” and “revocation” relied upon by the trial Court were sufficiently pleaded by the respondent in paragraph 7 of the Statement of defence. Whether or not the judgment of the lower Court is against the weight of evidence.

 

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RATIONES DECIDENDI

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DECLARATION OF TITLE TO LAND – DUTY ON A PLAINTIFF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

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“First and foremost, it is the duty of the plaintiff in any action for a declaration of title to land to show the precise area of land being claimed. See; Gilbert Onwuka & Ors Vs. Michael Ediala & Ors (1989) 1 SC (Pt.11) 1; (1989) NWLR (Pt.96) 182; (1989) LPELR 2720 SC. –

 

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BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND – ON WHO LIES THE BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND

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“On whom the burden of proof lie in a claim for declaration of title to land, it is already a well established principle of law that the onus is always on the plaintiff to establish his claim, and that it is not open to him, to rely on the weakness of the defendant’s case. In Alhaja Sabalemotu A. Kaiyaoja & Ors, Vs. Lasisi Egunla (1974) 12 SC (Reprint) 49; (1974) LPELR – 1644 SC this Court had opined as follows: “…what is required of a plaintiff in an action for declaration of title is at least to establish his claim, by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to prove to the satisfaction of the Court that he has a better title than the defendant.” In other words, the law is the same as it was, very long time ago, as stated by Webber, C. J. in Kodilinye Vs. Mbanefo Odu (1935) 2 WACA 336 as follows: – “The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him, to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant.” See also; Saka Owoade & Anor Vs. Omitola & Ors (1988) NWLR (Pt.77) 413; Mrs. Olayide Okelola vs. Adebisi Adeleke(2004) 13 NWLR (Pt.890) 307; (2004) 7 SCM 95(2004) LPELR 2438 SC”.-

 

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CERTIFICATE OF OCCUPANCY – MEANING OF A CERTIFICATE OF OCCUPANCY

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“In Emy J. Bila Auta Vs. Chief Willy Ibe (2003) 11 SCM 39, this Court opined as follows: “A Certificate of occupancy is normally the evidence of exclusive possession and rights provided for in favour of the person in possession of such Certificate”. The right of occupancy granted to the appellant was granted to her when the respondent was lawfully enjoying an earlier grant to him of the same land. See; Joshua Ogunleye vs. Oni (1990) 2 NWLR (Pt.135) 745 –

 

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BURDEN OF PROOF – ON WHO LIES THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

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“It is trite law, that in a claim for declaration of title to land, the defendant does not have a duty to prove his own title to the same land in dispute. It is the primary duty of the plaintiff who prays for a declaratory relief for title to a parcel of land to plead all relevant facts and call credible evidence to show that he is entitled to the order. It is trite law that he who asserts must prove the assertion. See; Section 135 of the Evidence Act, Elias Vs. Omo – Bare (1982) 5 SC 2; Elias Vs. Disu (1962) 1 All NLR 214; Agala & Ors Vs. Egwere & Ors (2010) 5 SCM 22. The law is that the plaintiff in an action for declaration of title is required to satisfy the Court by credible evidence but not by admission in the pleadings of the defendant, of his right to the declaration he claims. See; Bello Vs. Eweka (1981) 1 SC 101. The reason being that the grant of a declaration by the Court is discretionary. See; Kodilinye Vs. Odu 2 WACA 336, Akinola & Ors Vs. Oluwo & Ors (1962) WNLR 135; Sunday Temile & Ors Vs Jemide E. Awani (2001) 9 SCM 150 at 165”. –

 

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CERTIFICATE OF OCCUPANCY – WHAT DOES THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY PRESUPPOSES?

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“Generally, a certificate of Occupancy properly issued to a holder presupposes that the holder is the owner in exclusive possession of the land it relates to. The said certificate also raises the rebuttable presumption that at the time of its issuance, there was not in existence, a customary owner whose title has not been revoked. In which case, where it is proved by evidence that someone else has a better title to the said land before the issuance of the certificate of occupancy, the said certificate becomes void and shall be liable to be revoked. See; Grace Madu Vs. Dr. Betram Madu (2008) 6 NWLR (pt.1083) 296; (2008) 2-3 SC (Pt.11) 109; (2008) LPELR- 1806 SC. –

 

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TRANSFER OF TITLE –WHETHER AN OWNER OF LAND UNDER NATIVE LAW AND CUSTOM, CAN TRANSFER HIS ABSOLUTE INTEREST AND GRANT EXCLUSIVE POSSESSION IN THE LAND TO ANOTHER

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“Ordinarily, and there is no doubt, that an owner of land under the native law and custom is entitled to transfer his absolute interest in the land to another and grant exclusive possession of same. See; Aboderin Vs. Morakinyo (1968) NMLR 179”. –

 

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REPLY BRIEF –ESSENCE OF A REPLY BRIEF

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“In Aliyu Salihu Vs. Alhaji Abdul Wasiu (2016) LPELR – 26062, on the essence of a reply brief, I had stated thus: “…. a reply brief is filed only in response to new argument of the respondent on law that has newly been raised by the respondent but was not touched by the appellant. A reply brief is to deal with a new issue of law, or arguments, raised in an objection in the respondent’s brief which was not covered by the appellant’s brief. Where there has been no such new issue or point of law, a reply brief of argument is most unnecessary and anyone filed in that respect is liable to being discountenanced or ignored by the Court. As a reply brief has been held not to be a repair kit to put right any lacuna or error in the appellant’s brief of argument.” See also; Dr. Augustine N. Mozie & Ors vs. Chike Mbamalu & Ors (2006) 12 SCM (pt. 1) 306 at 320; Clifford Osuji vs. Nkemjika Ekeocha (2009) 16 NWLR (pt. 1166) 81; (2009) 10 SCM 72”. –

 

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REPLY BRIEF –ESSENCE OF A REPLY BRIEF AND ITS LIMITATIONS

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“It must be noted that a Reply brief is not a means to afford the appellant another bite at the cherry. It is most improper to use the reply brief to extend the scope of argument in the appellant’s brief of argument earlier filed. See; Edjerode Vs. Ikine (2001) SCNJ 184; Ikine & Ors Vs. Edjerode & Ors (2002) 1SCM 124; Okonji Vs. Njokanma (1999) 12 SCNJ 2591 Akinrimade Vs. Lawal (1996) 2 NWLR (Pt.429) 21; Umeji v. AG, Imo State (1995) 4 NWLR (Pt.391) 552; FRN Vs. Obegolu (2006) 18 NWLR (Pt.1010)”. –

 

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FINDINGS OF FACTS BY A TRIAL COURT – DUTY ON A PARTY SEEKING TO UPSET THE FINDINGS OF FACTS BY A TRIAL COURT

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“As shown above, there is concurrent findings of fact of the two lower Courts. This Court approaches these issues from the premise that as the making of findings of fact is primarily within the province of the trial Court which has the opportunity of seeing, hearing, and observing the witnesses testify, the trial Court’s conclusions of the facts are presumed to be right. The onus is therefore in the party seeking to upset the judgment on the facts, to displace the presumption. And where the appellate Court, as the intermediate Court below has confirmed such conclusion or findings, the presumption becomes even stronger and may only be reversed or interfered with upon special circumstances shown such as miscarriage of justice. See; Iyiola Ogunjumo & Ors vs. Muritala Ademolu & Ors (1995) 4 NWLR (Pt.389) 2541 (195) LPELR – 2337 SC”. –

 

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LAND USE ACT–PURPORT OF THE LAND USE ACT ON EXISTING TITLES AND RIGHTS TO POSSESSION OF LAND

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“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.” –

 

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LACHES AND ACQUIESCENCE – DOCTRINE OF LACHES AND ACQUIESCENCE

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“Laches and acquiescence refer to a party’s conduct in recognizing the existence of a transaction and showing intention to permit it to be carried into effect. The doctrine connotes neglect to assert a right or claim, which taken together with lapse of time and other circumstances causing prejudice to adverse party, operates as a bar in the Court of equity, as equity aids the vigilant and not those who slumber on their rights”. –

 

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RIGHT OF OCCUPANCY–TYPES AND CLASSIFICATIONS OF RIGHTS OF OCCUPANCY

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“Under the Land Use Act 1978, two types of rights of occupancy were created. These comprise of statutory right of occupancy and customary right of occupancy. Both statutory right of occupancy and customary right of occupancy are of two classifications. The first is the statutory right of occupancy granted by the State government pursuant to Section 5(1)(a) of the Land Use Act and the customary right of occupancy granted by the local government under Section 6(1)(a) of the Act. The second classification is the statutory right of occupancy deemed to have been granted by the State Governor pursuant to Section 36(2) of the Land Use Act and the customary right of occupancy deemed to have been granted by the Local Government under Section 36(2) of the Act. In both cases of statutory and customary rights of occupancy therefore, there exist an actual grant as well as deemed grant. An actual grant is naturally a grant made by the Governor of a State or a Local Government whilst a deemed grant comes into existence automatically by the operation of law. See Savanah Bank (Nig) Ltd vs. Ajilo (1989) 1 NWLR (pt. 97) 305; Alhaji Adisa vs. Emmanuel Oyinwola & Ors (2000) 10 NWLR (pt. 674) 116”.

 

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CERTIFICATE OF OCCUPANCY– IMPLICATION OF AN EXISTENCE OF A CERTIFICATE OF OCCUPANCY

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“In Alhaji Goni Kyari vs. Alhaji Ciroma Alkali & Ors (2001) 5 SCNJ 421 at 426, this Court held: – “Mere tendering of an instrument of title to land such as a Deed of Conveyance or a Certificate of Statutory or Customary Right of Occupancy in Court does not automatically prove that the land therein purportedly conveyed, granted or transferred by the instrument becomes the property of the grantee. The existence of a certificate of occupancy is merely a prima facie evidence of title to the land it covers and no more. Mere registration does not validate spurious or fraudulent instrument of title or transfer or grant which in law is patently invalid or ineffective.” See Prince Ngene vs. Chike Igbo & Anor (2000) 4 NWLR (pt. 851) 131. –

 

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CASES CITED

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None

 

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STATUTES REFERRED TO

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Evidence Act, Cap. 112 of 1990

Land Use Act, 1978.

Statute of Fraud, 1677

 

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