Farmers Supply Company (Kds) Ltd. V. Alhaji Taofic Mohammed (2009)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A :

After a house he was building at plot D9 Constitution Road, Kaduna, was demolished by the Appellant, the Respondent sued the Company at the High Court, Kaduna, wherein he claimed for-

(i) A Declaration that he is the rightful holder of the Certificate of Occupancy over the land situate at plot D9 Constitution Road, Kaduna;

(ii) The sum of N2, 833, 410.00 being the current value of the development and materials at the site;

(iii) The sum of N100, 000.00 as damages for trespass; and

(iv) An Order of perpetual injunction…

At the trial, the Respondent testified as PW3, called three other witnesses, and tendered Exhibits 1 – 11 in evidence. His case is that he bought the land from PW1, Alhaji Isa Yahaya, who was allocated the land and issued with a Certificate of Occupancy (Exhibit 1) from Kaduna Local Government. The Appellant called one witness and tendered one document in evidence [Exhibit 12].

The Appellant’s case is that it was granted Exhibit 12 by the then Kaduna State Ministry of Lands and Survey in respect of a large expanse of land of over 40 plots, including the plot in dispute.

In his Judgment delivered on the 6th of July 2000, M. L. Bello, J., held that the Respondent had established his title through sale.

Aggrieved by the decision, the Appellant appealed to this Court with a Notice of Appeal containing six Grounds of Appeal, and with leave of Court five Additional Grounds of Appeal were later filed. Briefs of arguments were duly filed and exchanged and in the Appellant’s brief prepared by Murtala A. Yusuf, Esq., the following six Issues were formulated for determination in this appeal –

(1) Whether having regard to the evidence adduced before the Court below the Respondent could be said to be the rightful holder of Certificate of Occupancy over the land in dispute.

(2) Whether the Respondent could successfully claim title to the land in dispute solely on the strength of the Power of Attorney [Exhibit 5].

(3) Whether the Respondent’s claim – was not bound to fail for PW1’s (and or the Respondent’s) non – compliance with the provisions of Sections 5 (1) & 21 (a) or (b) of the Land Use Act Cap 202 LFN 1990, S. 14 of the Land Registration Law Cap 85 Laws of Kaduna State 1991, and the provisions of the Kaduna State (Designation of Lands on Urban Area) Order 1980.

(4) Whether the Learned trial Judge was right in holding that Exhibit 12 – a Grant of a Right of Occupancy does not confer any title on the Appellant in respect of the vast area of land mentioned therein –

(5) Whether the Appellant on the strength of the evidence led at the trial vis-a-vis how it came about owning the area of land mentioned in Exhibit 12, could be regarded as a trespasser and thus be made to pay N100, 000.00 as damages for trespass.

(6) Whether the Judgment of the lower Court is not perverse or against the weight of evidence adduced before it.

The Respondent formulated two Issues for Determination in his brief prepared by Ogunniran, E. O. Esq., as follows –

i. Whether from the state of pleadings and evidence led at the trial, the trial court was right to have granted the relief of the Plaintiff on the declaration as the rightful holder of Certificate of Occupancy over the land situate at Plot D9 Constitution road, Kaduna.

ii. Whether the learned trial Court was right to have awarded damages in the sum of N100, 000, 00 (One Hundred Thousand Naira only) in favour of the Respondent and further granted perpetual injunction.

However, for the “sake of proper focus and avoidance of digression”, the Respondent adopted the Appellant’s Issues, which it criticized as an “obvious masterpiece of hair-splitting exercise”.

I will also adopt the Appellant’s Issues in dealing with this appeal. In my view, there are angles to its complaints against the Judgment of the lower Court that are better addressed piecemeal.

On Issue 1, the Appellant referred us to authorities on the five ways to prove title; principles governing sale of land; those under customary law; and legal title under English Law by purchase, and argued that not indicating what law governed the sale of the land is fatal to the Respondent’s case; and that PW1’s oral assertion that he transferred his interest to him is ineffective since transfer of title is not a matter of fact but a conclusion of law to be deduced therefrom, citing Nasiru & Ors V. Abubakar (1997) 4 NWLR (Pt. 497) 32.

It was further argued that having averred in his pleadings that Exhibit 1 was revoked, any reliance on it as basis for a declaration of title goes to no issue; that by the maxim- “Nemo Dat Quod Non Habet” PW1 had nothing to pass on to the Respondent; that by the maxim ”Ex Nihilo Nihil fit” the bottom had been knocked off any rights the Respondent could lay claim to; that the averment in paragraph 8 is not supported by evidence, thus both the averment and the new Certificate of Occupancy that was not produced, should be deemed abandoned, citing Ochin & ors V. Ekpechi (2000) 5 NWLR (PT. 656) 225; and that the lower Court acted on speculation when it relied on it to find for the Respondent, citing Owena Bank (Nig.) Plc. V. Mohammed (1998) 1 NWLR (Pt. 533) 310 and Njoku V. Dikibo (1998) 1NWLR (Pt. 534) 496.

The Respondent conceded that each method of sale has its requirements, but argued that he proved sufficient interest to entitle him to the declaration sought since there was a sale and he was given the title documents. As to revocation, he argued that the averments were not denied or traversed by the Appellant in his own pleading, and thus, must be deemed admitted, citing Oshodi V. Eyifumi (2000) FWLR (Pt. 8) 1271, Ajibade V. Mayowa & ors (1978) 9 & 10 SC 1, Odume V. Nnachi & ors (1964) 1All NLR 320.

To start with, and as the Appellant submitted, there are five distinct ways of proving title to land under Nigerian Law, and these are –

(i) By traditional evidence;

(ii) By production of documents of title, and this must be duly authenticated in the sense that their due execution must be proved.

(iii) By acts of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner.

(iv) By acts of long possession and enjoyment of land, which may be prima facie evidence of ownership of the land; and

(v) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the Land in dispute – see Idundun V. Okumagba (supra).

In this case, Exhibit 1 is the Certificate of Occupancy issued to PW1, and as both parties submitted, the conditions for a valid sale of land are not the same under Customary Law and the received English Law. Sale by agreement in writing is one of the features of a valid sale under the received English law, while under Customary Law, such writing is unknown and a valid sale of land usually comes about without it – see Comm. L & H, Kwara State V. Jimoh Atanda (2007) 2 NWLR (Pt. 1018) 360, and Ogunbambi V. Abowab (1951) 13 WACA 222, where Verity, Ag. R, held that-

“There can be no doubt that by such law and custom no such things as written contracts or conveyances are necessary to a valid sale. The payment of purchase money and delivery of possession are enough”.

In this case, neither the Respondent nor PW1 specified the law that applied to their transaction, but it was argued at page 3 of the Respondent’s Brief that the “sale is coupled with possession as enunciated in the case of Ayorinde V. Fayoyin (supra)”, suggesting or implying that the sale transaction was under Customary Law. But that is contrary to the evidence adduced at the lower Court. PW1 testified that after the sale, he gave the Respondent the title documents including Exhibit 1, and that the Respondent’s counsel drew up Exhibit 5, the Power of Attorney, which they both signed.

Obviously, handing over a Certificate of Occupancy and drawing up a Power of Attorney is outside the league of Customary Law, and to all intents and purposes, the sale was transacted under the received English Law, which requires evidence of payment of the purchase price, acknowledgement of same and the execution of a deed of conveyance, for a purchaser to acquire a legal title over the land – see Aminu V. Ogunyebi (2004) 10NWLR (Pt. 882) 457.

In this case, there is no evidence of payment of the purchase price and acknowledgement of same. The “receipt of purchase” was rejected in evidence and so marked because it was not registered as required by the Land Instrument Registration Law. Be that as it may, the Respondent claimed title through Exhibit 1, however, he averred as follows in paragraph 6-8 of his pleading –

6. That – the Plaintiff could not immediately obtain a new Certificate of Occupancy in his name and as a result, the said Alhaji Isa Yahaya had given him an irrevocable power of attorney in respect of this land pending the issuance of a new certificate to him.

7. The Certificate of Occupancy in respect of this property was mistakenly revoked by the Kaduna Local Government in 1987, the Plaintiff applied that a new Certificate of occupancy be re-issued.

8. That on the on the 17th day of August 1987, a new Certificate of Occupancy No. KDA/A/005344 was then issued to the Plaintiff – The Plaintiff will rely on this Certificate of Occupancy at the hearing.

At the trial, the Respondent did not mention or refer to the fact that Exhibit 1 was revoked, and that he applied for a new Certificate of Occupancy, which was issued to him. He merely testified that he could not change the name of PW1 on the title documents, and under cross-examination by the Appellant’s counsel, he replied – “the name still remains Isa Yahaya on the Certificate for the plot”.

The Appellant’s contention in this appeal is that the said averment in the Respondent’s pleadings is an admission that Exhibit 1 was revoked, thus, PW1 had nothing to pass on to him, and Exhibit 1 should not be referred to or relied on to establish title.

The Respondent, however, argued that since the Appellant did not specifically deny the averments, they are deemed admitted. It was further argued that there are procedures for revoking a certificate of occupancy, which not followed will render subsequent issuance of such rights invalid, defective and spurious; and that the alleged mistaken revocation of Exhibit 1 is not revocation in law for it is only the Governor or the Local Government, as the case may be, that can validly revoke a certificate of occupancy subject to section 28 (4), 29 (1) and 33 (1) of the Land Use Act, thus, there was no revocation of Exhibit 1, PW1’s Certificate of occupancy, citing Olohunde v. Adeyoju (2002) FWLR (Pt.24) 1355 at 1390.

The Appellant, however, countered in his Reply Brief that there is no evidence that the revocation of Exhibit 1 was set aside; that neither the Respondent nor PW1 applied to any Court for the said revocation to be set aside; that the submission that there is no revocation of Exhibit 1 is of no moment, as it is trite law that for a legal argument to succeed, it must be based on accepted facts, citing Ikpo V. The State (1995) 9 NWLR (Pt. 421) 540. This Court was urged to discountenance the submission and the case cited.

Now, it is settled that pleadings are not regarded as evidence by themselves and if not followed by any supporting evidence, they are deemed abandoned and will therefore be discountenanced – see Manson V. Halliburton Energy Services Ltd. (2007) 2 NWLR (Pt. 1018) 211. In this case, there was no evidence to back up the averments in paragraph 7 and 8 of the Respondent’s pleadings, and they are deemed abandoned. Being dormant and without life, the facts therein cannot be looked into or used to decide anything. Thus, the issue of whether Exhibit 1 was mistakenly revoked or not and according to law or not, cannot be the subject of this appeal.

All that I can say is that there was no basis for the lower Court’s conclusion that “Exhibit 1 has not been revoked” and I have to agree with the Appellant that the lower Court erred when it relied on that erroneous conclusion to find in favour of the Respondent.

Finally on this Issue, the Respondent argued that his Writ of Summons and Statement of Claim shows that he instituted the case as an Attorney to PW1, and coupled with possession given to him by PW1, the lower Court was right to hold that he had title.

The Appellant, however, argued in its Reply Brief that this submission contradicts the evidence led at the trial because the Respondent’s case at the lower Court is that he bought the land from PW1, while the argument here is that he sued as an attorney. It was further argued that in the determination of a suit for declaration of title to land, it is the evidence led at the trial and not the endorsement regarding capacity of party to sue that matters.

It is true, as the Respondent stated, that the endorsement on his Writ of Summons and original Statement of Claim reads – “Alhaji Taofic Mohammed (Suing as Attorney to Alhaji Isa Yahaya)”. But the original Statement of Claim was later amended, and where there is an amendment of pleadings, the amendment takes effect, not from the date of the amendment, but from the date of the original Statement of Claim. In effect, the amended pleading substitutes the original one, and any issues outside the amended pleadings does not arise for determination – see ACB Plc. V. N.T.S. (Nig.) Ltd. (2007) INWLR (Pt. 1016) 596. In this case, the endorsement in the Amended Statement of Claim merely reads – “Alhaji Taofic Mohammed – Plaintiff”, and paragraph 3 avers that –

“The Plaintiff has been and he is still the holder of the Certificate of occupancy over the property situate at Plot D9 Constitution Road -”

In other words, the Respondent did not sue as Attorney for PW1, and since his claim is that he was the holder of the Certificate of Occupancy over the land, the onus lay squarely on him to prove it, which brings us to Issue 2 on Exhibit 5, the said Power of Attorney. The lower Court observed as follows at p. 131 of the record-

“Exhibit 5 was drawn up. It conferred all the rights of PW1 to the Plaintiff over the disputed land before this Court”.

The Appellant’s contention is that a Power of Attorney is not a document by which title to land could be passed or transferred, citing Ndukauba V. Kolomo & anor (2001) 12 NWLR (Pt. 726) 117 CA, and Ude V. Nwara & anor (1993) 2 NWLR (Pt. 278) 638 SC.

The Respondent conceded to that fact but argued that since Exhibit 5 is an irrevocable Power of Attorney, the Respondent had the power to and could have title declared in himself, being a person standing in PW1’s position, citing Ude V. Nwara (supra).

The Appellant submitted in its Reply brief that going by the concessions made by the Respondent, it is glaring that the lower Court erred in law by holding that Exhibit 5 has transferred the right of PW1 to the Respondent over the land in dispute.

I agree; the Respondent himself conceded that a Power of Attorney is not an instrument that transfers or alienates any title. It is merely an instrument that delegates powers to the donee to stand in the position of the donor and do the things he can do – see Ude V. Nwara (supra) where the Supreme Court held as follows-

“A Power of Attorney – is not an instrument which confers, transfers limits, charges or alienates any title to the donee: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation: it is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power, to any person including himself then there is alienation”. (Highlight mine) See also Ndukauba V. Kalama & Anor (supra) where Pats-Acholonu, JCA (as he then was) elucidated on this as follows –

“It is erroneously believed in not very enlightened circles particularly amongst the generality of Nigerians that a Power of Attorney is as good as a lease or an assignment. It is not whether or not it is coupled with interest. It may eventually lead to execution of an instrument for the complete alienation of land after the consent of the requisite authority has been obtained”. (Highlight mine)

Thus, the issuance of a Power of Attorney does not by itself transfer the title or rights over the land to the donee, it is only after the donee may have utilized the Power of Attorney to convey the land to any person including himself that there will be alienation. As Pats-Acholonu, JCA (as he then was) pointed out in Ndukauba V. Kalama (supra), the Power of Attorney may lead to the execution of the required instrument “after the consent of the requisite authority has been obtained”, which brings us to Issue 3.

The Appellant’s submission here is that it is clear from the evidence of PW1 that he did not seek nor obtain the approval and or consent of the relevant authority or that of any person whatsoever before purportedly alienating his interest in the land; and that by virtue of Sections 5 (1) (a) and 6 (1) (a) of the Land Use Act, where any right or interest or title has been acquired through either a statutory or customary right of occupancy same can only be alienated, conveyed or sold to a third party with the consent of the authority that issued or made the grant; and that by Sections 21 (a) & (b) and Section 22 (1) of the same Act, failure to comply with the said provisions would render the transaction a nullity, citing Onamade & Anor V. ACB Ltd. (1997) 1 NWLR (Pt. 480) 123, Savannah bank Plc. V. Ibrahim (2000) 6 NWLR (Pt.662) 585, Union Bank Plc V. Orharhuge (2000) 2 NWLR (Pt. 645) 495. Thus, this Court was urged to hold that since the requisite consent was not obtained, the transaction that led to sale of the land is a nullity.

The Respondent adopted his arguments on Issues 1 and 2, and further submitted that the question is – has there been a sale that will entitle him to the declaration sought and not whether there is registration of documents of title or whether the land is in an urban area or not? It was further submitted that there was a sale, which is strengthened by possession and admission by the Appellant that it agreed to pay compensation to the Respondent.

The Appellant, however, argued in his Reply Brief that assuming (without conceding) that the question is whether or not there has been a sale, then the answer is simply in the negative; and that having failed to prove sale, the Respondent cannot rely on the issue of payment of compensation or any admission (if any) to earn a declaration of title to the land, citing Bello V. Eweka (1981) 1 SC 101, Chief Ani V. Chief Nna (1996) 4 NWLR (Pt 440) 122 and Aishatu Aliyu V. Adewuyi (1996) 4 NWLR (Pt 442) 284.

The Appellant is right; in a claim for declaration of title, the onus is always on the Plaintiff to establish his claim. It is not open to him to rely on the weakness of the Defendant’s case – see Adewuyi V. Odukwe (2005) 14 NWLR (pt 945) 473 SC, where the Supreme Court held that the standard of proof in such cases is not different from that required in civil cases generally, but the burden of proof is always on the Plaintiff who is claiming title, and that it never shifts to the Defendant throughout the trial. Now, Section 21 of the Land Use Act provides as follows –

“It shall not be lawful for any customary right of occupancy or any part thereof to be alienated by assignment mortgage, transfer of possession, sublease or otherwise howsoever –

(a) Without the consent of the Governor in cases where the property is to be sold by or under the order of any Court under the provisions of the applicable sheriffs and Civil Process Law.

(b) In other cases without the approval of the appropriate Local Government. (Highlights mine)

Section 22 (1) of the same Act further provides as follows –

“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any parts thereof by assignment, mortgage, and transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained”

Apparently, the same restraint applies to the holder of a customary right of occupancy and a holder of a statutory right of occupancy, and so the question of whether the land in dispute is in an urban area or not, which parties dwelt on, is of no moment in this appeal. The question, in my view, is not whether there was a valid sale but whether or not the requisite consent was first had and obtained from the appropriate authority before PW1 alienated his interest.

The law is clear that it is the owner of the Certificate of Occupancy that is obliged to seek and obtain the requisite consent – see Owoniboys Technical Services V. Union Bank (2003) FWLR (Pt. 180) 1529. It is also settled that the requisite consent can be sought and obtained at any stage but before the registration of the deed – see Awojugbagbe Light Ind. Ltd. V. Chinkwe (1995) 3 NWLR (Pt 390) 369 where Iguh, JSC held as follows-

“The holder of a statutory right of occupancy is certainly not prohibited by Section 22 (1) of the Act from entering into some form of negotiations which may end with a written agreement for presentation to the Governor for his necessary consent or approval. This is because the Land Use Act does not prohibit a written agreement to transfer or alienate land. So long as such a written agreement is understood and entered into, subject to the consent of the Governor, there will be no contravention of Section 22 (1) of the land use Act…”

See also Brossette Man. Nig. Ltd. V. M/S Ola Ilemobola Ltd.

(2007) 14 NWLR (Pt 1053) 109 where Aderemi, JSC added that-

“… (Section 22 (1) of the Act) prohibits any transaction or instrument whereby the holder of a statutory right of occupancy purports to alienate as a complete action in any legally acceptable form of transfer without first seeking and obtaining the consent of the Governor. At the time of such negotiation any agreement that might have evolved there-from is said to be inchoate or a mere escrow”.

In other words, until the requisite consent is obtained no legal interest can pass – see Section 26 of the Act, which provides 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 this Act shall be null and void”.

So, the holder of a statutory right of occupancy who wishes to alienate his interest or right over any land must first obtain the consent of the Governor of the State where the land is situated. Similarly, the holder of a customary right of occupancy of land that is not in an urban area must first obtain the consent of the Local Government where the land is situated. The consequence of the unlawful act of alienating a right of occupancy without the requisite consent is what is stated under Section 26 of the land Use Act.

The transaction is null and void, and in declaring it null and void, Section 26 used the word “shall”, which makes the provision mandatory and not directory or discretionary. In other words, alienation made contrary to the provisions of the Act shall be null and void, which means null and void for all purposes – see USN Plc V. Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR (Pt. 1052) 567 SC and C.C.C.T.C.S. Ltd. V. Ekpo (2008) 6 NWLR (Pt. 1083)362 SC.

In this case, PW1 testified that Kaduna Local Government issued him with Exhibit 1. Under cross-examination, he said-

“I assigned the land to the Plaintiff in the same year I was allocated the piece of land. Before the assignment I did not receive any approval”.

He was re-examined by the Respondent’s counsel, and he said –

“I was not informed before I sell the land I should seek their consent”.

Despite the clear provisions of the law, the lower Court held, thus-

“… I am not unmindful of the fact that consent of the Government and registration of the agreement of sale are required by the Land Use Act and Kaduna State Registration of Land Law respectively before the sale of the land is valid. I do however think that the position of the law is that non-compliance with these laws does not make the transaction illegal, null and void. It only made it pending until the provisions of the 2 laws are complied with. In this instant case, I am of the opinion that the Plaintiff has established his title through sale by PW1 who has proper title to the parcel of land”. (Highlight mine)

The lower Court thought wrong; there is a clear distinction between an agreement to sell and an outright sale. An agreement to sell is not prohibited by the Land Use Act. A conditional sale subject to the necessary consent being obtained is also not prohibited. However, an outright sale, i.e. where the sale has been completed without consent, is null and void – see Savannah Bank Plc V. Ibrahim (2000) FWLR (Pt 25) 1626 and Igbum V. Nyarinya (2001) FWLR (Pt. 67) 950, where the distinction was made as follows-

“There are two broad stages that culminate in the vesting of title to a purchaser in land transaction. The first stage is the agreement or contract stage. This stage does not require the consent of the Governor under Section 22 of the Land Use Act. At this stage of entering into a contract for sale of land, no alienation has taken place as envisaged by the said Section 22 and therefore the requirement of consent of the Governor does not arise. Up to the point of arriving at a binding contract, no consent of the Governor is required as a legal prerequisite. The second stage involves alienating or transferring the vendor’s right of occupancy and which is done by a conveyance or deed. Because this stage invariably involves the vesting of title in the purchaser, consent of the Governor must, as a legal prerequisite, be sought and obtained”. (Highlight mine)

See also Brossette Man. Nig. Ltd. V. M/S Ola Ilemobola Ltd. (supra) where the Supreme Court per Katsina-Alu, JSC observed –

“…The holder of a statutory right of occupancy is certainly not prohibited by Section 22 (1) of the Land Use Act from entering into some form of negotiation which may end with a written agreement for presentation to the Governor for his necessary consent. I think this is good sense because the Governor when giving his consent may require the holder of the statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage, sublease in order that his consent under subsection (1) may be signified by endorsement thereto”. (Highlight mine)

In this case, no instrument of any kind was executed in evidence of the assignment of the land in dispute from PW1 to the Respondent, and even more damaging to his case, PW1 admitted unequivocally that he assigned the land to the Respondent without the consent of the Kaduna Local Government that allocated the land to him. Thus, it is an outright sale without consent, and it is null and void.

The lower Court therefore erred when it held to the contrary, what is more, there was no evidence whatsoever before it to justify or support its conclusion that the Respondent proved his claim to title. The sale agreement or purchase receipt was rejected in evidence; the Power of Attorney in Evidence as Exhibit 5 was not utilized by the Respondent to convey the land to himself and by itself, Exhibit 5 cannot and did not transfer or alienate any title to the said land; and even worse, the assignment of the said land to him was effected without the consent of the Kaduna Local Government, which rendered the entire transaction null and void for all purposes. Thus, the Respondent had nothing on the table before the lower Court, and since it is impossible to put something on nothing, his claim to title that was based on nothing must come crashing down.

But that is not all; the Appellant also claimed title to the land. It averred in paragraphs 17 (b) to (d) of its Statement of Defence that its grant can be traced to a letter of application and offer of the grant of statutory right of occupancy; that as a Government parastatal, the land was allocated on the ground of “public use, purpose and overriding public interest”; and that the offer was conditional to the withdrawal of an earlier grant at Abuja Road. The Appellant’s witness, DW1, Muhammad Salisu Idris, testified that the said land was granted for public interest; and that the Appellant had earlier been granted land at Abuja Road and the land in dispute was granted to it as replacement. He also tendered Exhibit 12 in evidence. The lower Court, however, held as follows-

“Exhibit 12 … is not a Certificate of Occupancy conferring title on the Defendant, rather it is a document conveying an approval for the grant of a right of Occupancy, which was subject to certain conditions… Exhibit 12 … did not identify the area of land, its boundaries that it purport to grant to the Defendant. It has therefore granted nothing to the Defendant… The sum total of what Exhibit 12 has done therefore is that it has conferred no title of any piece of land to the Defendant”.

The above conclusion of the lower Court is the subject of Issue 4. The Appellant’s contention is that the two reasons stated therein “were based on a faulty conception and application of the Law”, and it was argued that the said Exhibit 12 meets the requirement of Section 5 (1) of the Act as it clearly conveys a grant of statutory right of occupancy to it, so the issuance or otherwise of a certificate of occupancy neither adds to not subtracts from its potency; and that it identified the land forming the subject matter of the grant.

The Respondent however argued that Exhibit 12 does not qualify as a certificate of occupancy because it contravenes Sections 5(1), 9, and 45 of the Land Use Act; that it is the Governor who is empowered to issue a Certificate of Occupancy, but Exhibit 12 was issued for the Permanent Secretary by P.W Shekamang, who is not the permanent secretary; and that the maxim ”delegatus non potest delagare” [a delegate cannot delegate] is applicable.

It was further submitted that Exhibit 12 is merely a reply to the Appellant’s application dated 9th day of September 1986; and that paragraph 3 thereof puts it beyond argument that Exhibit 12 is not a certificate of occupancy but a correspondence, which laid down conditions to be contained in the certificate of occupancy when issued and also some conditions to be met by the Appellant.

The Appellant submitted in its Reply Brief that the issue never emanated from the Judgment of the lower Court; that the Respondent did not object to the admissibility of Exhibit 12 on those grounds; and that it is a fresh issue for which no leave was sought or obtained. Arguing in the alternative, it submitted that Exhibit 12 is covered by Section 150 (1) of the Evidence Act and the maxim “Omnia praesumuntur rite et solemniter esse acta”- [All acts are presumed to have been done rightly and regularly].

This issue is easily resolved. Yes, it is true that Exhibit 12 is not an actual Certificate of Occupancy but it is a formal letter from the Kaduna State Ministry of Land and Survey, and it reads –

“With reference to your Application dated 9th September 1986 which was forwarded to this Ministry … I am directed to inform you of the approval of a grant/regrant of a Right of Occupancy to you in respect of – A piece of land of about 8 acres on Kabala East Layout TPO. 514. The grant is subject to the following conditions…

2. This grant/regrant is Right of Occupancy No 15424.

3. I am to add that the following conditions will also be inserted in the Certificate of Occupancy…

4. Please return three copies of this letter to the Secretary after signifying your acceptance of these terms in the area below.

5. The date of commencement of this Right of Occupancy will be the date of acceptance as signified by you on this letter … u.

6. It is a condition of the grant that you should pay survey fees…

7. When accepting the terms and conditions, you must state whether you require the land … to be demarcated…

8. Payment to the Kaduna State Government of Development Levy…

9. It is also a condition of the grant that buildings and other works shall not commence on the site until planning permission has been sought…

10. This grant is subject to the withdrawal of letter of allocation of land along Abuja Road made to you vide my letter Ref. No. NCL/25968 dated 7th October 1986”. (Highlight mine)

The Appellant accepted the terms and conditions of the grant, thus, the Kaduna State Ministry of Land and Survey made an offer of a Right of Occupancy to the Appellant, and it accepted, which is nothing but an agreement in the eyes of the law, and as Bello, CJN, said in Awojugbagbe Light Ind. Ltd. V. Chinukwe (supra)-

“Some form of agreement is inescapably necessary before the Governor is approached for his consent, otherwise, negotiation would be impossible. Successful negotiation ends with an agreement to which the consent of the Governor cannot be obtained before it is reached. There is nothing contrary to law in entering into a written agreement before the Governor’s consent was obtained. The legal consequences that ensue are that the agreement was inchoate till that consent was obtained. After it was obtained, the agreement is complete and completely effective”.

In this case, it would appear that the lower Court did not appreciate the distinction between an agreement for a right of occupancy, and the actual Certificate of Occupancy that would be issued thereafter, and it therefore fell into error when it discountenanced Exhibit 12.

As to its second reason that Exhibit 12 did not identify the area of land, it must be remembered that Exhibit 12 is not a actually Certificate of Occupancy, but an agreement for such right, and in any case, it is settled that where the parties have no doubt as to the identity of the land in dispute, as in the instant case, the burden of proving same does not exist – see Okedare V. Adebara (1994) 6 NWLR (pt 349) 157, Fatuade V. Onwoamanam (1990) 2 NWLR (pt 132) 322 & Alabi V. Oloya (2001) 6 NWLR (pt.708) 37.

Issue 5 is on the damages awarded for trespass, and the Appellant argued that since the Respondent failed to prove the title, he is not entitled to the said damages and injunction granted.

The Respondent simply argued that trespass is rooted in possession and urged this Court to resolve the issue in his favour.

The Appellant is right; when a Plaintiff claims for trespass and injunction, his title to the land allegedly trespassed upon is thereby put in issue, thus, must first establish his title to the land in dispute before proceeding to establish possession thereof. – see Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1 SC and Egwa V. Egwa (2007) 1NWLR (Pt. 1014) 71. In this case, the Respondent failed to establish title and the lower Court therefore erred when it awarded damages for trespass and granted the injunction sought.

In the final analysis, the appeal succeeds and is allowed. Thus, the Judgment of the lower Court and orders therein made on the 6th of July 2000 are set aside.

There will be no order on costs.

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Other Citations: (2009)LCN/3314(CA)