Alhaji Buba Usman V. Mohammed Tanimu Garke (1998)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

The respondent was the plaintiff and the appellant the defendant in suit No TRSJ/30/93 before the Taraba State High Court sitting in Jalingo in which each party claimed title over a disputed plot of land. The case was tried on pleadings based on the plaintiff’s amended statement or claim (claim for short) and the defendant’s statement of defence (defence for short).

As formulated in paragraph 17 or his claim, the reliefs sought by the plaintiff are:

“17 Whereof the plaintiff claims against the defendant;

(a) A declaration of title over the parcel of land described as plot No. 19A Road lying and situate at the Jalingo old air strip measuring about 1110 square metres based on MISCJP), Jalingo, Taraba State.

(b) An order of perpetual injunction against the defendant and his privies or servants from committing further acts of trespass on the above pared of land.

(c) The sum of twenty thousand naira damages for the unauthorised utilization of the plaintiff’s cement blocks and sand.

(d) The sum often thousand naira general damages for trespass.

(e) Any further order or orders this Honourable court may deem fit to make.”

In his defence, the defendant denied the plaintiff’s claim and in a counter-claim subjoined to the aforesaid defence, he set up relief’s similar to those of the plaintiff which read as follows;

“2 Whereof, the defendant in this cross-action seeks the following reliefs:

(i) A declaration of title over the parcel or plot of land lying and situate al old air strip, Jalingo, Taraba State, correctly described as plot No 19A along Sports Council Road, Jalingo (MISC GSJP3) covered by a certificate of occupancy No 20 of 29/6/82 issued by the Jalingo Local Government Council.

(ii) A permanent injunction restraining the plaintiff, his agents, privies by whatsoever name called from committing any further acts of trespass on the said land.

(iii) The sum of twenty thousand naira (N20,000) as general damages for trespass.

Eight thousand naira (N8.000.00) special damages as follows:

(a) 40 trips of sand used by the plaintiff for moulding 2.500 blocks at the current market rate of two hundred naira (N200.00) per trip thereby given (sic) rise to return of N8.000.00

(v) The plaintiff to pay for the cost of filing and prosecuting the cross-action

(vi) Any further order or other orders this Honourable court may seem just to make in the circumstances.”

There was no defence filed by the plaintiff in regard to the counter-claim a fact which has generated much controversy in this appeal as will be seen later.

The plaintiff is a staff of the Union bank Plc. His case on the pleadings and in evidence is that in 1988, he applied to the land and Survey Department, Jalingo for the allocation to him of the plot in question. The application was granted under an approval letter No.GS/MLS/LAN/13060/1 of 18/5/90 (Exh MB1). Thereafter, he deposited on the plot eight tipper trips of sharp sand from which he moulded 2.500 blocks preparatory to developing the plot. He engaged the services of an

architect who produced a building plan of his proposed building which he submitted to the Taraba State Urban Planning Authority. In the course of inspecting the land, the said Authority then drew the site plan of the land. The building plan Exh. MB2 and a building permit Exh.MB3 were approved by the Authority. A certificate of occupancy No.G3/10097 dated 29/9/93 Exh MB4 was subsequently issued to the plaintiff. After obtaining all the aforementioned documents he then proceeded to commence construction but was surprised to see the defendant building on the plot. He reported the matter to his parents who with other elders tried to mediate but they were unable to resolve the matter as the defendant who promised to provide an alternative plot for the plaintiff failed to do so. At his instance, the Urban Development and Planning Authority tried to prevail on the defendant to stop work on the land my marking red crosses on the building and by seizing the materials and equipment of his workers but as the defendant still remained adamant and was still building his 14 room house on the land, the plaintiff commenced the action leading to this appeal.

The defendant is a businessman. His case is that he purchased the land in dispute in 1981 from one Ali Abubakar Gadal (DW2) at a cost of N1, 700. The transaction was reduced into writing as per document dated 22/9/81 tendered in evidence but rejected on the ground of non-registration. His vendor Ali Abubakar Gadal (DW2) derived title to the land from the Jalingo local Government. The defendant applied for and was issued with a certificate of occupancy No. 20 of 29/6/82 Exhibit MB5 by the Jalingo local Government. He later deposited 150 trips of sharp sand on the site from which the plaintiff moulded 2,500 blocks. He reported the plaintiff’s interference to the Land and Survey Department and was in a letter Exh MB6 advised to ignore the plaintiff’s action and continue with his construction.

Upon the foregoing facts, the learned trial Judge Mangaji J., in a reserved judgment delivered on 16/2/84 dismissed the defendant’s counter-claim and entered judgment in favour of the plaintiff in respect of the claim for title, perpetual injunction, N3,000 as damages for trespass and costs of the action assessed at N1000 against the defendant.

Consequent upon this judgment, the defendant hereinafter to be referred to as the appellant has lodged the instant appeal and by his counsel he has formulated nine issues as calling for determination. The nine issues read as follows:

“1. Was the learned trial Judge right when he held that paragraphs 4, 5 and 9 of the statement of defence go to no issue for which contest could be rightly based.

2. Was the demeanour of DW3 sufficient to declare him an ‘impenitent liar’ whose evidence cannot be relied upon having regard to the whole evidence before the trial court?
3. Whether the Evidence Act of 1990 expressly repealed the previous Evidence Act?
4. Is the approval letter from the Land Use and Allocation Committee Exhibit MB1 a grant of title to the piece of land?
5. Having regard to the circumstances or this case, is Exh. MB4 a valid grant to the respondent?
6. Was the learned trial Judge right in holding that the sale agreement lacks probative value after he had earlier held that it can be referred to only as evidence of payment?
7. Was the learned trial Judge right in holding that Exh. MB5 finds no pillar upon which to stand based on his personal investigation into the document outside the court room?
8. Amongst (sic) the parties ‘who was in actual possession before the other?
9. Having regard to the circumstances of this case, was the learned trial Judge right in finding in favour of the plaintiff/respondent and dismissing the defendant/appellant’s reliefs in its entirety?”

The plaintiff henceforth to be referred to as the respondent adopted the issues as formulated above, I will therefore base my consideration of this appeal on those issues.

Issue 1

This issue relates to the rules of pleadings. In his judgment, the learned trial Judge in holding that paragraphs 4, 5 and 9 of the defence went to no issue on the ground that they violate the rules of pleadings made the following comments on pages 48 lines 9 – 45, 49 lines 1 to 15;

“Paragraphs 4, 5 and 9 of the statement of defence amongst others could be anything but pleading. The paragraphs were coughed (sic) thus:

4. The defendant denies paragraph of the plaintiff’s statement of claim and apart from putting the plaintiff to the strictest proof thereof further states in reply that;

(i) an approval letter per se is not sufficient and can neither be issued in lieu of a certificate of occupancy.

(ii) that as against an approval given to the plaintiff’s application for a right of occupancy over the parcel or plot of land in dispute by the Department of Lands and Survey Executive Office of the Governor of Taraba State, the defendant has been the title holder and rightful owner of the said parcel or plot of land since the 30/6/82.

5. The defendant denies the averments of facts contained in paragraph 5 of the plaintiff’s statement of claim and further contends that approval without more such as the one in the instance (sic) case cannot be said to and does not confer or vest absolute and/or exclusive title on the plaintiff over the parcel or plot or land in dispute as against the defendant or any other person whatsoever –
6. The defendant in reply to paragraph 9 of the plaintiff’s statement of claim contends that if a building permit had been issued to the plaintiff by the Taraba State Urban Planning and Development Authority, it might have been so issued either in error or under a mistaken assumption that the plaintiff possessed a valid title to the plot of land in respect of which the building permit was given. The defendant shall contend at the hearing of this suit that the Taraba State Urban Planning and Development Authority exhibited gross negligence in issuing the said building permit over a plot of land if at all they did without first carrying (sic) out proper enquires to ascertain the rightful owner before issuing same.’

“‘From the above, there is no doubting that the statement of defence is fraught with arguments and conclusions interposed with assumptions and surmising. To the extent to which they violate the clear rules of pleadings, they are taken as having gone to no issues for which contest could be rightly based. It is indeed for that reason that the submission of learned counsel on the arguments advanced in the pleading is the same.”

Learned counsel for the appellant has severely attacked the above passage contending that the paragraphs of the statement of defence under reference did not violate the rules of pleadings and that in any case the issue of the inadequacy of the pleadings was raised before the trial court suo mow and finding made thereon without the opinion of counsel thereby causing a miscarriage of just ice. On the other hand, learned counsel for the respondent submitted that the observation of the court below was justified and that although the issue was raised suo motu and decided without reference to counsel no miscarriage of justice was occasioned thereby.

The aim of pleadings is to set out clearly the facts upon which panics rely for their case. Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167. Pleadings thus must contain only facts upon which the parties rely. The facts as pleaded must be concise, unambiguous and placed in numbered paragraphs and where necessary sub-paragraphs so that the opponent will know clearly the case he has to meet: Union Bank of Nigeria Ltd v. Chukwueluo Charles Ogboh (1995) 2 NWLR (Pt.380) 647 at 663; Jallco Ltd v. Owoniboys Tech. Service Ltd (1995) 4 NWLR (Pt. 391) 534 at 544.

Every pleading must contain facts, not law. Although a party may raise a point of law in his pleading he is not permitted to plead conclusions of law or of mixed fact and law. If however he states the conclusion of law to be drawn from the facts pleaded, he will nevertheless not be bound by or limited to what he has stated: He can present in argument any legal consequence which the facts permit: Re Vandervell’s Trusts (No.2) White and others v. Vandervell Trustees Ltd (1974) Ch. 269, 322, (1974) 3 All E.R. 205. In the book, Practice and Procedure of the Supreme Court, Court or Appeal and High Courts of Nigeria by T. Akinola Aguda. 1980 Edition page 230 paragraph 18.25, it was stated, inter alia, as follows:

“…a plaintiff cannot say that he is entitled to certain property: he must simply state the material facts from which the court may come to that conclusion. Similarly, if he wishes to allege that the defendant is under an obligation to do something he call only state all those facts from which he wishes the court to draw that conclusion … the statement of claim alleged that a deceased person ‘two days before his death, made a good and valid donation mortis causa to the plaintiff of the whole of his money standing on deposit to his account’ at a particular bank, but did not state what the deceased in fact did. This was clearly a conclusion of law and it was in consequence struck out.”Applying the above principles to the case in hand, it is plain to me that a great deal of the averments in the paragraphs or the statement or defence under consideration consists of legal conclusions and not facts and to that extent the averments are violative of the rules of pleadings. Learned counsel to the appellant contended and I agree with him, that it was wrong for the court below to have raised the objection to those averments suo motu and to have pronounced upon it without inviting counsel to address it on the objection. When a court decides to deal with an issue which is not raised by any of the parties before it, it is imperative for the court before deciding the issue to give the parties the opportunity to address it on the issue. This is to ensure fairness to both parties as well as to avoid an element of surprise: see Road Transport Employers Association of Nigeria v. the national Union of Road Transport Workers (1992) 2 NWLR (Pt. 224) 381 at 392. Katto v. C.B.N (1991) 9 NWLR (Pt. 214) 126 at 150. In Umar v. Bayero University, Kano (1988) 4 NWLR (Pt.86) 85 at 93, Belgore J.S.C restated the principle succinctly

thus:

“Matters not canvassed should be avoided by all courts. The only exceptions are questions which touch on jurisdiction; for only vesting of jurisdiction is the authority or a court to try a case. Even then where a court raises a matter as fundamental as jurisdiction suo motu, it has a duty immediately to avail the parties to address on it. Without doing so, a court considering such matters runs the risk or unwittingly not doing justice to the parties. It is good justice to confine decisions to what the parties fought on (Kuti v. Balogun (1978) 11 LRN 333, 357; T.O. Kuti (trading as Abusi Odumare Transport) v. O. Jibowu (1972) 6 S.C. 147.)”

See also Nigerian Tobacco Co. Ltd v. Alloysius O. Agunanne (1995) 5 NWLR (Pt.397) 541; Olusanya v. Olusanya (1983) 1 SCNLR 134 at 139.

But a judgment is not liable to be reversed if a matter therein was raised suo motu and decided by the court without an opportunity given to counsel for address on it provided that no miscarriage of justice was occasioned. See Olubode v. Salami (1985) 2 NWLR (pt.7) 282 and Imah v. Okogbe (1993) 9 NWLR (pt.316) 159, 178. It is not sufficient for the purpose of reversing a judgment merely to show that an error of law was committed by the trial or appellate court; the appellant must further demonstrate or show that the error of law in the case in question occasioned a miscarriage or justice. In other words, the error must have substantially affected the result of the decision.

In the instant case, it is plain to me as will be shown later in this judgment that the facts pleaded in paragraphs 4.5 and 9 of the statement of defence about the effect of the approved letter Exh. MBI were not glossed over hut adequately considered by the observations in question and therefore this issue lacks substance.

Issue II

This relates to the disparagement by the court below of the evidence of the 3rd defendant’s witness by name Somaila Akila Nyikun, a civil servant in the Department of land and Survey, Jalingo. He had testified as follows:

“In 1993, the defendant came to our office and complained to the management about his piece of land along Tank Road which is described as GSJP3 Misc. When he complained, I was directed to investigate. I was directed by Sam Ahmadu, the Director of lands Services. In the course of my investigation I requested for his documents. He presented to me a sale agreement showing that he bought the land from on (sic) Ali in 1981. Later he showed me a photocopy of certificate of occupancy from the local government.

The defendant was shown to have been allocated the land by the local government. I went to the site, I discovered some trips of sharp sand which defendant said was about 150 trips. The plot is No 19 in our layout A Road. From the layout, I discovered that the plot was allocated to the plaintiff. I studied the two cases jointly. I observed and referred to the management that before the promulgation of the Urban Areas Designation Order, 1995 Local Government’s certificate of occupancy were (sic) valid and are still valid. In the redesign by the Government in 1988 wherein the land was given to plaintiff there was an oversight because the interest of defendant was not taken into consideration as defendant had already commenced development on site. The practice is that in such situations the interest of those holders he fore the redesign art: given priority…

“The State Government did not notify the defendant of the revocation or his prior right.”

(page 40 lines 30 -35. p. 41 lines 1 to 23)

Of this piece of evidence the court below on page 56 lines 16 -18, 29, 33, page 57 lines 8 -14 commented thus:

“…3rd DW is one who, not only unreasonably condemns the Government that employs him to undertake some specific duties but undermines the system to which he belongs …

“From the above one can see how openly bias (sic) 3rd DW is … As if he was called on to build a case for the defendant, 3rd DW said the defendant was not notified of the revocation of his prior title. With respect, no issue as to revocation or title has been joined nor any evidence led to that effect either in the pleadings or evidence apart from the ipse dixit of 3rd DW … If there was any lapse, incompetence or inadequacy exhibited by his Department at all he cannot escape the stigma. Certainly 3rd DW is his self’s enemy and one who has no respect for work ethics … From his demean our before me. I find 3rd DW to be an impenitent liar.”

Learned counsel to the appellant has severely criticised the above comments and findings of the court below which he submitted is unjustified. I am inclined to share his sentiment. Admittedly, it is not the function of an appellate court to disturb the findings of fact of the trial court where those findings are based on the credibility of witnesses who had testified before the trial court unless the decision is shown to be perverse and not the result of a proper exercise of judicial discretion: State v. Joseph Nnolim (1994) 5 NWLR (Pt. 345) 394 at 405: Adelumola v. State (1988) 1 NWLR(Pt. 73) 683 at 690; Sugh v. The State (1988) 2 NWLR (pt.77) 475.

However, the mere fact that a witness gave evidence on unpleaded facts does not necessarily make that witness a liar. The substance of the evidence of DW 3 under consideration was that the appellant was issued with a customary right of occupancy in respect of the land in dispute in 1982 by the Jalingo Local Government and that in 1985, the area was designated an urban area after which the respondent was granted a statutory right of occupancy of the aforesaid land by the Taraba State Government, in 1993. It was therefore his evidence that as the appellant’s prior interest had not been revoked the appellant’s interest prevailed. Granting but without conceding that the appellant’s interest over the land was valid, his evidence or contention is in tune with the principle that a legal estate or term of years created by a customary right of occupancy issued by a Local Government creates priority of estate so as to render null and void any subsequent certificate of occupancy issued by the Governor in respect of the same parcel of land unless the customary certificate of occupancy aforesaid was validly revoked by the appropriate authority: see Dantubu v. Adene (1987) 4 NWLR (Pt. 65) 314 at 326. The DW 3 is a staff of the Urban Development and Planning Authority, Jalingo, and it seems he was in a position to know whether or not the appellant’s prior interest over the land in dispute had been revoked. In any case, his testimony to the contrary had not been demonstrated to be false either by cross-examination or by the testimony of respondent’s witnesses. Demeanour of a witness is not always the touchstone or index of truth. It is certainly of little guide where witnesses give testimony of conflicting traditional evidence in proof of title to land: see Kojo II v. Bonsie( 1957) 1 WLR 1223 at 1226, In the case of Thomas Aplin Co. Ltd. V. NNDC (1972) 12 S. C 33, the Supreme Court held that “an appeal court leans more on contemporaneous documents than on demeanours of witnesses and would reverse the findings of fact by a lower court based on the demeanours of witnesses if such demeanours are in conflict with the contemporaneous documents.” In the instant case, where the evidence of D.W 3 is based on the respective certificates of occupancy of the panics, his demeanour should not have been a determinant factor in the acceptance or rejection of his evidence by the court below. It is however not every mistake or error in a judgment of a trial court that will result in its reversal. It is only when the error is so substantial that it has occasioned a miscarriage: of justice that an appellate court is bound to interfere: see Onajobi v. Olanipekun (1985) 4 S.C. 156 at 163; Oje v. Babalola (1991) 4 NWLR (pt.185) 267 at 282, Azuatune Ike v. Ugboaja (1993) 6 NWLR (pt.301) 539. In dealing with a judgment of a trial court, what an appellate court has to decide is whether the judgment is right and not whether the reasons for the judgment are; See Ukejianya v. Uchendu (1950) 13 WACA 45 at 46, Emmanuel Ayeni and Ors v. William Sowemimo (1982) 5 S.C. 60 at 73 – 75. As I will show later in this judgment, the observation and findings of the court below on the evidence of DW3 has not occasioned a miscarriage of justice, I will therefore resolve this issue in favour of the respondent.

Issue III

This issue poses the question as to the correct reference or citation of the Evidence Act presently in force in this country. Learned counsel for the appellant in an objection against the admissibility of the respondent’s certificate of occupancy Exh. MB4 referred to section 90 (3) of the Evidence Act which renders inadmissible any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which that statement might lend to establish. In his observation, the learned trial Judge stated that the reference to section 90 (3) of the Evidence Act Cap. 62, of 1958 was erroneous and should be understood to be section 91 (3) of the revised edition of the Laws of Nigeria 1990. Learned counsel for the appellant has in this appeal contended that the Evidence Act Cap. 62 Laws of the Federation 1958 is still in force. To my mind, there is no dispute of any substance. The provisions of section 90 (3) of the Evidence Act of the 1958 edition are in pari materia with section 91 (3) of the 1990 revised edition. Whether the latter legislation has repealed the former is a mere academic exercise and I must in accordance with the well established principle of this court decline to decide the point in the present appeal. See Nkwocha v. Governor of Anambra State (1984) 1 SCNLR 634; (1984) 6 S. C. 362, Governor of Kaduna State v. Dada (1986) 4 NWLR (Pt. 38) 687.

Issues IV to IX

These issues are inter-related and I find it more convenient to treat them together. In doing so, I should like to be guided by some fundamental principles with respect firstly to the onus of proof and the method of proving title to land germane to the instant case.

With respect to the onus of proof in a land case it is well established principle that the onus is upon the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title claimed. The plaintiff must rely on the strength of his case and not on the weakness of defendant’s case. Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337, Ayitey Cobblah v. Telly Gbeke (1947) 12 WACA 294 at 295, Woluchem v. Gudi (1981) 5 S.C. 291. Where, however, the case for the defendant lends support to the case of the plaintiff the court cannot ignore it in arriving at a conclusion as to which side to believe: see Akinola v. Oluwo (1962) 1 SCNLR 352; (1962) 1 All NLR 224 at 225. A counterclaim is to all intent and purposes an independent action and so where a defendant counter-claims for title to land, he has no less burden than the plaintiff to prove that title. In the case in hand where both parties claim title to the disputed piece of land, they have the burden to establish their entitlement to the declaration sought.

With respect to the method adopted by the parties in proof of their claims, it seems clear to me on a careful perusal of the pleadings and evidence that each party relies on its document of title which is one of the five ways of proving title to land vide Idundun v. Okumagba (1976) 9 – 10 SC. 227 at 246 – 250; Piaro v. Tenalo & Ors (1976) 1 FNLR 227 at 234. Production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claimed: he must go further to trace his root of title to one whose ownership of the land has been established; Lawson v. Ajibulu (1997) 6 NWLR (Pt. 5(7) 14 at 31.

With the foregoing principles in mind. it is necessary to advert to the pleadings and evidence relied upon by the parties in assertion of their claims. I will deal first with the case of the appellant. At paragraph l6 of his statement of defence, he pleaded inter alia thus: See Emegokwue v. Okadigbo (1973) 3 ECSLR (Pt.1) 267, Odumosu v. A.C.B. Ltd. (1976) 11 S.C. 261 at 264. If the evidence of D.W 2 on his root of title is discountenanced, the appellant would have failed to prove the title of his vendor leading to the dismissal of his counter-claim. This conclusion is sufficient to dispose of the complaint on the dismissal of the appellant’s counter-claim but as his learned counsel has raised certain pertinent points, it is necessary that I should address them before adverting to the respondent’s case.

It was submitted On behalf of the appellant that the appellant’s counterclaim was not specifically denied and therefore that its dismissal was erroneous.

In general, it is not necessary for a plaintiff to file a reply if his only intention in doing so is to deny any allegations that the defendant may have made in the statement of defence. See Obot v. C.B.N (1993) 8 NWLR (Pt.310) 140 at 159. It is trite law that the failure of a plaintiff to file a defence to a counter-claim may not be disastrous for the plaintiff if he succeeds in his claim. Where, as in this case, the counter-claim of the defendant is for declaratory right, the defendant will still have to satisfy the court that he is entitled to the declaration regardless of the failure of the plaintiff to file a defence. See Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt. 220) 647. In the instant case, since the respondent had succeeded in his claim, his failure to file a defence to the appellant’s statement of defence and counterclaim is of no moment.

The appellant had sought to tender in evidence the sale agreement for the purchase of the land in dispute from his vendor (D. W. 2). Following an objection by the respondent’s counsel on the ground that the document was not registered, it was rejected. Learned counsel for the appellant has submitted that the document in question was merely a memorandum evidencing receipt of money and not a registrable instrument and was therefore wrongly rejected. Several authorities were cited; among them are the following: Agwunedu v. Onwumere (1994) 1 NWLR (Pt.321) 375 at 386; Ogunjumo v. Ademolu (1995) 4 NWLR (Pt.389) 254; (1995) 4 SCNJ 55 at 69. No doubt, the proposition is correct that registrable instruments which are not registered are if pleaded admissible in evidence to prove not only payment of purchase money or rent but also to prove equitable interest where the purchaser or lessee is in possession, see Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt. 4) 783; (1985) 6 S.C 3. As I had already pointed out, the title of the appellant’s vendor was not pleaded and therefore oral evidence in that regard was of no consequence. The vendor DW 2 testified that he got the plot of the land in dispute from the late Chairman Jalingo Local Government who in turn acquired title from the said Local Government. There is no documentary evidence relating to those acquisitions. It follows that the appellant’s vendor had no title legal or equitable which he could validly transfer to the appellant. The admissibility of the sale agreement under consideration would not have made any difference to the appellant’s case.

In proof of his case, the appellant relied heavily on his certificate of occupancy (Exh. MB5) allegedly issued by the Jalingo Local Government. Of the document, the learned trial Judge on pages 72, 73, commented inter alia thus:

“Strictly speaking therefore, Exhibit MB5 finds no pillar upon which to stand … it is however a fact that the defendant tendered Exh. 5-a Local Government customary certificate of occupancy. It is one that is issued on the basis that the defendant had purchased from the 2nd D.W. the land in issue. That purchase was of a piece of land whose root of title could not be proved and in respect of a sale that the defendant could not prove. But as I have already pointed out, Exhibit MB5 is not without palpable inadequacies.”

Learned counsel for the appellant has criticized the above passage and submitted that the alleged palpable inadequacies on Exh. MB5 were dogged out by the learned trial Judge who embarked on an investigation of the document outside the court room without such inadequacies being raised by counsel in open court contrary to several decided cases such as: Akinfe v. State (1988) 3 NWLR (Pt 85) 729 at 742; Onibudo v. Akibu (1982) All NLR 194; Ayoke v. Bello (1992) 1 NWLR (Pt. 218) 380 at 405; Damina v. The State (1995) 8 NWLR (Pt.415) 513; (1995) 9 S.C.N.J 254 at 270 -271; Angyu v. Malami (1992) 9 NWLR (Pt. 264) 242 at 253 and Hayaki v. Dogara (1993) 8 NWLR (Pt.313) 586 at 598. The position of the law on documentary evidence is that although a document may be admissible in evidence under the provisions of the Evidence Act, the weight to be attached to its contents is another matter for every piece or evidence that has been admitted in the course of proceeding is subject to be tested for credibility, weight or cogency by the trial court before it becomes acceptable documentary evidence: Ayeni v. Dodo (1978) 3 S.C. 35 at 61. The appellant having tendered his certificate of occupancy which was admitted as Exh. MB5, the court below was entitled to subject it to scrutiny before attaching any weight to it. In discrediting the document after a close observation the court observed that “it is one which purports to confer title on the defendant to a piece of land which is neither named nor described” and therefore of no effect. I have myself examined the document and couldn’t agree more with that observation. A certificate of occupancy to be of any effect must, inter alia, contain an accurate description or better still have attached to it a survey plan of the land to which it relates or purports to transfer. Exh. MB5 is lacking in this regard and is incapable of sustaining the appellant’s claim to the land in dispute. The contention that the defect in the said Exh. MB5 was not raised by counsel in court is not justified for on page 46 lines 16 to 18, counsel in the course of his final address commented:

“Exhibit MB5 is vague. It has no description. No weight should be attached to it. The root of title of defendant is shrouded with irredeemable irregularities…”

I have no doubt that the learned trial Judge was correct in attaching no weight to the appellant’s certificate of occupancy, and in view of that and all that have been said herein before, the dismissal of the appellant’s counter-claim cannot be faulted.

I will now advert to the consideration of the respondent’s case with pertinent issues raised therein. As I indicated earlier, the respondent in paragraphs 3, 4 and 5 of his amended statement of claim pleaded that on 21st November 1988 he applied to the Lands and Survey Department of the then Gongola State Government for the land in dispute; that his application was approved as per letter No 95/100/90 dated 18th May 1990 Exh. “MB1” and a certificate of occupancy dated 10th June 1993 duly issued to him in respect of the land inn question. The respondent gave oral evidence as pleaded and tendered in evidence among other documents the aforesaid approval letter Exhibit MB I and the certificate of occupancy Exh. MB4. As it was common ground that the radical title to the land vested in the Governor of the then Taraba State, the respondent having tendered his document of title emanating from that Governor had if the document of title is flawless satisfactorily proved his title to the land in dispute by the method of production of document of title.

Learned counsel for the appellant referred to a passage in the judgment of the court below at page 57 lines 36 – 39. page 58 lines 1 to 9 where it was stated, inter alia, thus:

“Exhibit MB I on the other hand is the approval letter for grant of title. It was issued by the Land Use and Allocation Committee.

That Committee was created by S. 2 subsection 2 of the Land Use Act Cap. 202 of the Laws of the Federation 1990. The Committee is vested with the power to advise the Governor or as the case may be, the Administrator on matters connected with or pertaining to management of land within urban areas. Any approval of a grant of title issued by the Committee is deemed to be a grant by the Governor. ”

and submitted that under the Land Use Act Cap. 202 of the Laws of the Federation supra, there is provision for the delegation of the powers of the Governor to the Commissioner for Land but not to the Land Use and Allocation Committee, that a letter such as Exh. MB1 approving the grant of a statutory right of occupancy to a person is no evidence of such a grant and that in any case the Land Use and Allocation Committee has no right to issue the said letter Exh. “MB1”. My simple reply to this submission is that it is based on a false premise. Exhibit 1 also referred to as “MB1” was not issued by the Land Use and Allocation Committee but by the Ministry of Land and Survey Gongola State. The impression that it was issued by the Land Use and Allocation Committee is erroneous. Admittedly Exh. “MB1” is not a substitute for a certificate of occupancy it is nevertheless a document which the court can rely on and compare with the documents of the opposite party in determining which of the parties had proved a better title.

It was contended for the appellant that the respondent’s certificate of occupancy Exh. “MB4” was not validly made, firstly because the appellant’s prior interest on the land as per his certificate of occupancy Exh. “MB5” had not been revoked before Exh. “MB4” was issued and secondly that Exh “MB4” was issued on 29/9/93 during the pendency of the case in the court below and was therefore caught by the doctrine of lis pendens and thirdly that Exh. “MB4′ issued on 29/9/93 effective from 18/5/90 could not be validity made to destroy or affect the accrued right of the appellant. With respect to counsel, the 1st and 3rd submissions lack substance. It has earlier been demonstrated that the appellant had failed to establish his title to the land in dispute. Therefore, the reference to the appellant’s prior title or accrued right is misconceived. There is however force in the 2nd contention. The doctrine of lis pendens operates to prevent the effective transfer of any property in dispute during the pendency of that dispute. It is quite irrelevant whether the purchaser has notice actual or constructive. The doctrine is designed to prevent the vendor from transferring any effective title to the purchaser by depriving him the vendor of any rights over the property during the currency of the litigation or the pendency of the suit. It prevents the transfer of the property in dispute to any of the disputing parties during the pendency of the suit involving the property. In the case of Bamgboye v. Olusoga (1996) 4 NWLR (Pt.444) 520 at 532.

Belgore I.S.C. discussing the effect of the doctrine of lis pendens, said:

“The transfer of a land during the pendency or a suit on it is against the law and the operation of a just trial of the suit, the more so when the purchaser has clear notice of the pending suit. Because when a case is pending, with either party claiming ownership or title and neither has been declared owner or winner, nothing must interfere with status quo at the time of litigation. Thus no person can validly convey that land in dispute to any other person including the parties to the suit during the pendency of that suit.”This suit was commenced on 19th day of August 1993 and terminated on 21st August, 1995 when judgment was delivered. The respondent’s certificate of occupancy in respect of the land in dispute was purportedly issued on 29th September 1993 that is, during the pendency of the suit over the property in dispute.

The certificate of occupancy (Exh. MB4) purportedly issued to the respondent was caught by the doctrine of lis pendens and on that account it is defective and cannot be relied upon by the respondent as a valid document of title.

Learned counsel for the appellant has urged on us to hold that the appellant was first in possession or the land in dispute before the respondent came unto the same land and that the findings of the trial court to the contrary was an error. He repeated that the Governor’s grant of an interest in land is subject to the existing customary interest on the same land and in support of this contention he cited the cases or Ogunola v. Eiyekole (1990) 4 NWLR (Pt.146) 632 and Oguneye v. Oni (1990) 2 NWLR (Pt. 135) 745 at 771. In dealing with this aspect of the case, on page 78 lines 17 to 22 the court below reasoned as follows:

“In the face of the two conflicting claims to possession of the land, the plaintiff who has proved superior title traced to the Governor on whom radical title lay is held to be in possession: See Odubeko v. Flower (1993) 7 NWLR (Pt.308) 637; Okupe v. Ifemebi (1974) 1 All NLR (pt.1) 375.”

It is settled law that where two parties claim to be in possession of land, the law ascribes possession to the one with better title; See Alhaji J. Aromire v. J.J Awoyemi (1972) 1 All NLR (Pt.1) 101 at 112 Jones v. Chapman (1847) 2 Exch. 803.

Furthermore, it ought to be borne in mind that where questions of title to land arise in litigation, the court is concerned only with the relative strength of the title proved by the rival claimants: see case of Madam I. v. Peter U. Arase (1981) 5 S.C 33 at 35. In the case in hand, it has been amply demonstrated that the appellant has no colour of right over the property in dispute having failed to prove the title of his vendor and coupled with that his certificate of occupancy Exh. “MB5” is a rather spurious document conveying no identifiable piece of land to the appellant. On the other hand, the respondent’s certificate of occupancy Exh. “MB4” is equally defective by reason of its having been issued when the suit the subject-matter or the land relating to it was pending in court. By the letter Exh. “MB1″ from the Ministry of Lands and Survey approving the grant of the statutory right of occupancy over the said land in dispute to the respondent, he has on the principle of Arase v. Arase (supra) proved a better title than the appellant. Accordingly the possession of the land in dispute is ascribed to him and by reason of that he is entitled to maintain an action against the appellant whose alleged possession of the land is trespassory.

Finally, the point was made, and rightly in my view, that the court below was in error to have awarded to the respondent title instead of right of occupancy to the land in dispute. Reference was made to the case of Aseimo v. Abraham (1994) 8 NWLR (Pt.361) 191 at 210 where the following opinion was expressed:

…..The Land Use Act 1978 supra came into force on 29th March, 1978. By section 1 thereof, all land comprised in the territory of each State in the Federation are vested in the Governor of that State and by sections 5 and 6 the only right that any person or community may be entitled to in respect of any land is a right of occupancy, statutory or customary. The appellant’s action was filed in 1982 after the Land Use Act had come into force. Having regard to the change in the land tenure system brought about by the Land Use Act, the appellants’ claim ought to have been for right of occupancy to the land in dispute instead or title or ownership thereto which as a relief the court is without jurisdiction to grant.”

I am of the view that the opinion expressed above correctly represents the legal position. Consistent with that view, the court below was in error to have entered judgment for the respondent for a declaration of title to the land in dispute. I will amend the judgment by substituting a declaration of statutory right of occupancy, to the respondent. Subject to that, the appellant’s appeal lacks substance. It is accordingly dismissed with N2.500 costs in favour of the respondent.

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Other Citations: (1998)LCN/0362(CA)