Alhaji Abatcha Mohammed Kolo V. Alhaji Mohammed Lawan (2018)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Jos division delivered on 12th day of May, 2010 wherein the Court of Appeal, herein referred to as “the Court below”, affirmed the decision of the Borno State High Court, hereinafter called “the trial Court”, delivered on 26th September, 2008.

The appellant as plaintiff before the trial Court had claimed as follows:

1. A declaration that judgment in suit No. M/132/96 delivered on 5/4/2006 is nullity having been obtained by fraud.
2. A declaration that the plaintiff is the title holder of the land covered by Certificate of Occupancy No. BO/12336.
3. An order directing the defendant to give vacant possession to the plaintiff forthwith.
4. An order restraining the defendant, his servants, agents, assigns or any person whosoever from trespassing or interfering with the land covered by Certificate of Occupancy No. BO/12336.
5. Damages from trespass to be assessed by the Court.
6. Cost of the suit.

Before I proceed further in this judgment, it is interesting to note that the respondent

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herein and one Mohammed Ali had been parties in Suit No. M/187/1996 over the same parcel of land – the land in dispute in the instant. The respondent had earlier sued the said Mohammed Ali who had entered and claimed the land in dispute as his own on the ground that he had purchased same from the present appellant who had surrendered to him, the original title documents to wit: Certificate of Occupancy No.80/12336 purportedly granted and issued to the appellant by the Borno State Government.

The said action in Suit No. M/LS7/9G was heard and decided against the said Mohammed Ali, who then laid claim to the land in dispute, and he appeared. It was during the pendency of his appeal at the Court below in appeal No. CA/J/17/2004 that the instant appellant who had passed his title to the said Mohammed Ali, instituted the action, at the Borno State High Court, which culminated into the instant appeal.

At the conclusion of the trial before the Borno State High Court, the appellant’s claims were dismissed. The Certificate of Occupancy – Exhibit C, held by the appellant was held to be void as there was in existence, a deemed right of occupancy over the

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same land in favour of the defendant, instant respondent.

Aggrieved, the appellant filed an appeal to the Court below and the said appeal was dismissed. The judgment of the trial Court was accordingly affirmed with costs awarded against the appellant but in favour of the respondent.

Further aggrieved, the appellant has appealed to this Court on seven grounds of appeal filed on 8/7/2011. Pursuant to the Rules of the Court, upon service of the records of appeal, parties filed and exchanged briefs of argument. Appellant’s brief of argument which was filed on 21/01/2012 was deemed properly filed and served on 11/01/2017; while the respondent’s brief of argument was filed on 22/03/2017 within time. The appellant subsequently filed a Reply brief of argument to the respondent’s brief of argument on 26/04/2017.

On the 6th of February, 2018 when this matter came upon for hearing, Mr. Oru of counsel, leading other counsel for the appellant, identified appellant’s main brief and reply brief of argument to urge the Court to allow the appeal, set aside the concurrent decision of the lower Court and enter judgment for the appellant in terms of his claims.<br< p=””

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Mr. Ntafa of counsel leading B. O. Yerima Esq. for the respondent identified and adopted the respondent’s brief of argument to urge the Court to dismiss the appeal and affirm the concurrent judgments of the Court below.

In their respective briefs of argument, the parties formulated five issues each for determination of the appeal, based on the seven grounds of appeal contained in the Notice and Grounds of Appeal earlier filed by the appellant. The said five issues as distilled by the appellant which are not dissimilar to that of the respondent read thus:

1. 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. (Distilled from Grounds 1 and 6).
2. 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

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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. (Distilled from ground 2).

3. 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. (Distilled from Grounds 3 and 5).
4. 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. (Distilled from Ground 4).
5. Whether or not the judgment of the lower Court is against the weight of evidence.

The learned appellant’s counsel in arguing the appeal treated the issues he had formulated seriatim.

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Issue 1

Learned counsel referred to his grant of 1,861.64 sqm of land now the land in dispute by the Borno State Government vide Exhibit A – the Certificate No.BO/12336 of 4th February 1996. And that on the contrary, the respondent claimed to have bought the same land in dispute in 1977 with a sale Agreement in writing, with the District Head’s permit issued to alienate the land and that he later applied to the Ministry of Lands and Survey for conversion. He however contended that whilst the appellant tendered Exhibits A, B, C and E to prove his title to the land in dispute, the respondent could not tender any of the documents he referred to in his pleadings. Learned counsel contended that, it is trite law that an agreement for sale or disposition of the title in land must be evidenced in writing in line with Section 4 of the Statute of Fraud, 1677. He submitted that there was no document evidencing the sale of the land in dispute to the respondent to warrant the lower Court to hold that the respondent has proved that he bought the land in dispute since 1977. He submitted that such finding is perverse and not supported by the evidence before the Court. He relied on

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Ekeagwu vs. Nigerian Army (2010) 5-7 (Pt.11) MJSC 77, Oshe Vs. Okin Biscuits Ltd (2010) Vol. 3 (Pt.11) MJSC 129.

Learned counsel submitted that it is trite law that a party claiming ownership of land through inheritance by the person from whom he bought must plead material facts of the person who founded the land through the ages to the person from whom he bought. He relied on Piaro Vs. Tenalo (1976) 12 SC 31; Humphrey Onuoha Vs. Rosana Ndubueze & Ors (2002) 2 NWLR (Pt. 750) 172 at 185. He referred to paragraph 4 of the respondent’s Statement of Defence on page 13 of the Record and submitted that there was nowhere in the pleadings of the respondent where he pleaded and traced his root of title to four generations of the Vendor as held by the lower Court and the Court below erred in law when it relied on the evidence that was not pleaded thereby occasioning a miscarriage of justice against the appellant. He contended that parties are bound by pleadings and the Court cannot rely on evidence not pleaded. He submitted that there was no evidence of the size of the land the respondent purportedly bought from the DW1 in 1977. Learned counsel contended that the

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failure of the respondent to produce the sale agreement attracts the invocation of the presumption on Section 167 (d) of the Evidence Act, impari material with Section 148 (d) of old Evidence Act, Cap. 112 of 1990. He urged the Court to hold that the Sale Agreement will be unfavourable to the respondent, hence the lower Court was in error when it held that the respondent has proved that he purchased the land in dispute in 1977. He submitted that an appellate Court is always bound by the record and record only. It has no jurisdiction to go outside the record and draw conclusion which are not supported by the record. He urged the Court to hold that the conclusions of the Court below was perverse. He relied on several decided cases, including, Prof Olufeagba Vs. Abdur-Raheem (2010) All FWLR (Pt.512) 1033; Egharevba Vs. Osagie (2010) All FWLR (Pt.513) 1255 at 1270.

On this issue No.1 distilled from grounds 1 and 6 of the Notice of Appeal filed by the appellant, the learned counsel for the respondent conceded that from the pleadings of both parties, they are rival claimants, claiming ownership of the land in dispute. While the appellant relied on a grant of

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statutory right of occupancy by the Borno State Government, the respondent claimed to have purchased same land from the customary owner. He submitted that in law where by their pleadings, parties have rival claims to the land in dispute, the burden is on both of them as to who can prove a better title. He relied on Buraimoh Vs. Bamgbose (1989) 3 NWLR (Pt.109) 352 at 362 Onwama Vs. Ezeako (2002) FWLR (Pt. 100) 1213 at 1224, Uka Vs. Irolo (2002) FWLR (Pt.1270) 1167 at 1198.

Learned Counsel submitted that where a plaintiff in a land matter seeks a declaratory relief, he must succeed on the strength of his case but not on the weakness of the defence except where the defence case support his case. He cited, Auta Vs. Ibe (2003) 15 NSQR 109 at 126.

Learned counsel contended that the appellant who based his claim on the grant of statutory Right of occupancy could not sustain the claim with just the Certificate of Occupancy, whereas, the respondent, in proof of his assertion that he purchased the land in 1977, preferred credible and unchallenged evidence by calling as witness, the person from whom he purchased the land, his DW1, who gave the evidence that

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he sold the land to him in 1977 and traced his title through inheritance from his father, down to his great grand father before selling to the respondent. He also referred to the testimony of DW3, who witnessed the sale of the land to the respondent in 1977. Learned counsel referred to the testimony of the respondent as DW2 when he tendered Exhibits D and E. He submitted that the respondent did the needful, relying on purchase of the land as his root of title and having pleaded and called evidence as to the root of his vendor’s title.

Learned counsel contended that the respondent needed not to have produced and tendered any document of sale which he did not plead as all that he relied on was a customary sale of the land. He submitted that the respondent needed not to have given evidence on what he is not relying on and not pleaded. He relied on Arjay Ltd Vs. Airline Management Support Ltd (2003) 1 NSCQR 29; Okonkwo Vs. Cooperative & Commerce Bank (Nig) Plc (2003) 13 NSCQR 688. He submitted further that in a customary sale of land, ownership of land or interest therein is absolutely transferred once there is proof of payment of the purchase price and

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grant of exclusive possession to the buyer. He relied on Temile & Ors Vs Awani (2001) 6 NSCQR 1081 at 1105.

On the contention of the appellant that there was no evidence from the respondent on the size of the land in dispute, which the respondent bought from DW1, learned counsel submitted that no controversy on the size and extent of the land in dispute between the parties. It is the one covered by Exhibit C – the Certificate of Occupancy NO. 80/12336 measuring 1, 864.64 sq meters.

Learned counsel submitted further that since the identity of the land in dispute was never made an issue, there was no onus on the respondent to prove the certainty on size of the land in dispute. He submitted that based on the evidence adduced at the trial, the Court was right to have found for the respondent and dismissed the appellants claim. And that the Court below was correct to have concurred with the findings and affirmed the decision of the trial Court. He urged the Court to resolve the issue against the appellant.

On issue No.1, the poser is predicated on the pleadings of the respondent at the trial Court, whether the facts relied on were pleaded

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and proved by the respondent to support his title to the land in dispute.

It is interesting to note that the respondent did not have a case before the trial Court. The case that culminated into the instant appeal was that of the appellant who had sued the respondent, praying, inter alia, for a declaration of title to the specific parcel of land covered by the title document – Certificate of Occupancy No. 80/12336 which he held. And an order restraining the respondent, his servants, agents, assigns or any persons whosoever, from trespassing or interfering with the land covered by the said title deed.

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.

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

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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

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Okelola vs. Adebisi Adeleke (2004) 13 NWLR (Pt.890) 307; (2004) 7 SCM 95 (2004) LPELR 2438 SC.

It is worthy of note, that the main claim to declaration of title to the land in dispute is predicated on the certificate of occupancy granted by the Borno State Government. The appellant pleaded the following facts to support his claim to the declaration of title. Paragraphs 2, 3, 4, 5, and 6 of the Statement state as follows:

“(2) The plaintiff pleads that the right title and interest in and over a piece of land measuring 1,861.64 sq. meter covered by Certificate of Occupancy No. Bo/12336 vest in him.

(3) The said piece of land as described in the schedule to the Certificate of Occupancy No.BO/12336 was granted to the plaintiff by the Governor of Borno State vide letter of grant No. BO/12336 of 16/10/95 for a period of 99 years commencing on 17/10/95.

(4) Immediately after the grant the plaintiff developed the land by putting 4 bedroom, palour, store, shop and toilet and put his children.

(5) From 1996 when the development was completed up to 16/11/2006 the plaintiff was in possession of the land.

(6) The defendant had on 16/11/08

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cause (sic) the ejection of the plaintiff’s children in the house built on the land pursuant of judgment he obtained in Suit No. M/137/95 between the defendant and one Alhaji Mohammed Ali.

In defending the action, the respondent pleaded the following facts in his Statement of Defence, Paragraphs 4, 5, 6, 7, 8, 10, 12 and 19 read thus:

“4. The defendant further pleads that he became entitled to the said land in dispute through purchase from one Mallam Mustapha Amatami in 1977 at the cost of N6,000.00 in the presence of witnesses, as land he Mallam Mustapha Amatami inherited from his father.

5. The defendant denies paragraph 3 of the Statement of Claim and avers that after buying the said land in 1977, he immediately took possession and sometimes in 1987 he decided to convert his customary right to statutory right and therefore applied for same to the Borno State Government for that Purpose.
6. The defendant further avers that sequel to his application for the conversion of his customary right to statutory right, file No. BO/30798 was then assigned to him as his certificate number.
7. The defendant says that the plaintiff’s purported

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Certificate of Occupancy No. 80/12336 obtained in 1995 was without basis, illegal and of no effect over the defendant’s land.

7. The defendant denies paragraph 4 of the statement of claim and states that he continued to be in possession of the said land in dispute until in 1996 when one Alhaji Mohammed Ali who claimed his title through the plaintiff by purchase entered the land and started fencing it.
8. The defendant denies paragraph 5 of the plaintiffs Statement of Claim and says that the land in dispute had been in possession of the said Alhaji Mohammed Ali who claimed to have purchased it from the plaintiff since 1996 and has never been in possession of the plaintiff.
9. The defendant denied paragraph 6 of the plaintiff’s Statement of Claim and pleads that the suit between the defendant and the said Alhaji Mohammed Ali was not No./137/96 but suit No. M/187/96 which was heard and determined at High Court No.6 Maiduguri over the same land in dispute. Defendant shall rely on the whole record of proceedings relating to the said suit No. M/187/96.
10. In further answer to paragraph 6 of the Statement of Claim, the defendant pleads that he

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sued the said Alhaji Mohammed Ali for entering the land in dispute when he claimed to have purchased from the plaintiff who issued him with the said certificate No. BNO/12336 and which certificate was heavily relied upon by Alhaji Mohammed Ali in his defence in the suit at the High Court No. 6.

19. The defendant denies paragraph 9 of the plaintiff’s Statement of Claim in its entirety as frivolous, vexatious, baseless and without merit. Defendant shall contend at the hearing of this suit that that plaintiff’s action is an abuse of Court process as it is cut up by the doctrine of res-judicata and ought to be dismissed with substantial cost.”

In reviewing the evidence adduced by both parties, in particular, the appellant who had the burden to prove that he is entitled to the declaration of title of the land in dispute as he sought, the trial Court found that the appellant was relying on Exhibits A, B and C to prove his title to the land in dispute. Exhibit C is the Certificate of Occupancy issued by the Government of Borno State. The trial Court had found and rightly too, that a Certificate of Occupancy is only a prima facie evidence of title. And that

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it is a presumption of title which could be rebutted by a better title established by another person claiming the land.

Generally, the trial Court also found that the evidence of PW1, PW2 and PW3 couple with Exhibits A, B and C no doubt, had shown that the appellant was granted a parcel of land, evidenced by Exhibit C – the Certificate of Occupancy. In law, the appellant had acquired a legal title to the land. However, the trial Court queried whether there was any evidence before the Court challenging the validity of Exhibit C. The trial Court found that the evidence of DW1, DW2 and DW3 adduced by the respondent showed that there was a customary right of occupancy over the same land in dispute. That the respondent had in 1977 bought the land which was subject of customary right of occupancy. It was contended before the trial Court by the respondent, that since the customary right of occupancy which the respondent acquired in 1977 was not revoked when the Land Use Act came into force in 1978, the respondent’s right was preserved by the provision of Section 34 of the Land Use Act.

On the record, the trial Court had found as follows:

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“The evidence of the defence per DW1, DW2 and DW3 is that in 1977, long before the Land Use Act, the defendant purchased the land in dispute when it was under Customary Right of Occupancy. This evidence has not been controverted. There is no evidence before the Court that the Government acquired the land in dispute. By Section 34 of the Land Use Act, the person having the customary right of occupancy before the Land Use Act, would be deemed to have statutory right of occupancy over the same land. The plaintiff was allocated the land in 1995. The defendant acquired the customary right of occupancy in 1977. In 1995 when the plaintiff was granted title over the land by Exhibit C, the defendant had right of occupancy over the land. That right of occupancy was not revoked in 1995 when same land was allocated and granted to the plaintiff.”

Upon the above findings by the trial Court, it came to the conclusion that, in law the grant in 1995 when the right of occupancy of the defendant was not revoked cannot be valid. Therefore, it further held that Exhibit C is void for being issued when there was in existence a deemed right of occupancy over same land in favour of

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the defendant. The declaration of the title to the land, sought by the appellant was accordingly refused by the trial Court.

On appeal to the Court below, the Court opined as follows:

“The burden of proof in this case is on the plaintiff/appellant to prove his title to the plot in dispute. The appellant failed to prove that indeed the State Government had what it purported to grant. In a land matter where the plaintiff failed to prove his root of title relied on, the proper order to make in such circumstance is to dismiss the plaintiff’s case. The trial Judge was right in dismissing the claim of the plaintiff who failed to prove his root of title relied upon to the satisfaction of the Court.”

Issue No.2 as distilled by the appellant is closely connected to issue No.1 earlier discussed, hence the appellant adopted his arguments already canvassed above in issue No. 1.

Learned counsel for the appellant referred to the findings of the Court below on Section 34(1) & (2) of the Land Use Act, 1978 at page 109 lines 1-14 of the Record. He submitted that before the lower Court can invoke the provisions of Section 34(1 & 2) of the Land Use Act

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above, there must be adequate pleadings and evidence that:

(a) There was sale of land by DW1 to the respondent.

(b) That the said sale was in 1977 prior to the coming into effect of the Land Use Act in 1978.

(c) The size of the land sold to respondent must be shown

(d) That the land was developed prior to 1978.

Learned counsel submitted that none of the above was established by evidence before the trial Court, rendering the findings of the trial Court on the purchase by the respondent in 1977 perverse and led to miscarriage of justice. He urged the Court to so hold.

On issue No.2, learned counsel for the respondent also adopted his submissions on issue No.1 and submitted that the purchase made by the respondent in 1977 is so obvious that it happened before the coming into effect of the Land Use Act, in 1978. He referred to the testimony of DW1 and Exhibit C tendered by the appellant to show that there was a sale of the land in dispute by DW1 to the respondent in 1977 and the size of the said land. Learned counsel further submitted that evidence abound that the respondent, after purchasing the land in 1977 erected a fence

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rendering it to be developed.

Learned counsel further submitted that the respondent having pleaded and proved that there was a sale of land to him by DW1 in 1977 prior to the coming into effect of the Land Use Act, and that the land in dispute is a developed one, the lower Court was right to have found that he has a deemed right of occupancy which is of the same quality as statutory right and urged the Court to resolve the issue against the appellant.

Issues Nos. 3 and 4 are in effect, on whether the Court below was right to have held that the appellant did not prove that the Borno State Government had authority or capacity to grant the Certificate of Occupancy as there was no proper proof of acquisition and revocation of the piece of land by the said State government. And whether the issues of “acquisition” and “revocation” relied upon by the trial Court were sufficiently pleaded by the Respondent in his statement of defence.

I must state that these issues had been dealt with when considering issue No. 1. On page 113 of the record and in the judgment of the Court below, reference was made to paragraph 7 of the Statement of defence to show the

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respondent’s traverse of the Certificate of Occupancy held by the appellant.

On page 114 of the record, the Court below had found as follows on these issues: –

“The plaintiff/appellant failed to file a reply to the averments in paragraph 7 of the Statement of Defence. The Defendant/Respondent joined issues with the plaintiff/Appellant on the illegality of his certificate of occupancy, the root of his title. The onus was on the plaintiff/appellant to prove that indeed the certificate of occupancy the root of his title entitles him to a declaration he sought from the Court. The appellant needed to prove that the certificate of occupancy was sufficient proof of ownership.”

Upon the above findings, the Court below held as follows:

“As soon as issues were joined on the legality of the Certificate of Occupancy, the appellant would have taken steps to prove the five requirements, especially that of “that the grantor has in fact what he propose to grant.”

The Court below went further as follows:

“A person who is granted a Certificate of Occupancy that is questioned must be put on enquiry, as the land, the subject matter of the dispute

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must have original owners before his own grant in 1996. His enquiry would have led him to whether the government of Borno State properly acquired the land in dispute. The government cannot acquire land from an individual without adequate compensation.”

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.

At the time the appellant was granted Exhibits A, B, or when Exhibit C was issued by the Jalingo Local Government and by Taraba State Ministry of Lands and Survey, the grantor had no longer the competence to grant the same land to anybody, the right earlier created in favour of respondent not revoked.”

As earlier stated, 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

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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.

It is the appellant who relied on the Certificate of Occupancy (Exhibit C) granted to him by the Borno State Government in 1996 that needed to have provided credible evidence to prove his said title on the

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Certificate of Occupancy.

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.

In the instant case, the only root of the title upon which the appellant based his claim to ownership of the land in dispute is the grant by the Borno State Government, which gave him a Certificate of Occupancy. Whereas, there was in existence a prior purchase by the respondent. It is a misconception, to say the least, for the appellant to contend that the respondent ought to have tendered his documents as evidence of purchase of the land after he had called his Vendor

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who gave uncontroverted and credible evidence of his root of title and sale to the respondent. In other words, there is ample evidence that DW1 – the Vendor to the Respondent, had customary right of occupancy which, before the coming into force of the Land Use Act in 1978, he had passed on to the respondent legally. The subsequent right of occupancy purportedly granted by the State Government to the applicant will be void not having caused a revocation of the originally deemed grant. Otherwise, the subsequent grant will be in breach of the provisions of the Land Use Act and shall be liable to be declared void.

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.

As clearly shown in evidence on record, the respondent claimed to have purchased the land in dispute from DW1 in 1977 prior to the coming into effect of the Land Use Act, 1978. The said Law provides that:

“Subject to the provisions of this Act, all land comprised in the territory of each State in the

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Federation are hereby vested in the Governor of the State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.”

See; Section 1 of the Act.

And where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under the Act. See; Section 34 (2) of the Land Use Act, 1978.

Therefore, because the respondent was deemed to be a holder of a statutory right of occupancy before the purported subsequent grant of another right of occupancy to the appellant in 1996 vide Exhibit C, the Certificate of Occupancy No.BO/12336, the Government of Borno State then had nothing on the land in dispute to have granted to the appellant. Not having revoked the existing right of occupancy of the respondent and acquired the said land in dispute, the appellant acquired nothing.

Before I conclude this judgment, I must comment on the reply brief of argument filed to the respondent’s brief by the

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appellant.

The appellant had filed a reply brief of argument on 26/4/2017 and this was relied upon for the appeal. It is note worthy that the respondent did not raise any objection on points of law in the respondent’s brief of argument which could have required a response of the appellant. 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;

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Clifford Osuji vs. Nkemjika Ekeocha (2009) 16 NWLR (pt. 1166) 81; (2009) 10 SCM 72.

The respondent in the instant appeal did not raise any objection and did not introduce any new issue of law in the respondent’s brief of argument while the issues formulated for argument by both parties, are similar, though slightly differently couched. The appellant only used the reply brief of argument in this case as an opportunity to elaborate on the issues already argued in the appellant’s brief of argument. 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) 1 SCM 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).

It is clear that the reply brief of argument filed by the appellant in this appeal did not meet the essence of a reply brief to a respondent’s brief of

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argument and the consequence is for the Court to discountenance the said reply brief. Accordingly, the appellant’s reply brief filed on 26/2/2017 is hereby discountenanced.

The sum total of what has been said is that all the issues raised by the appellant are hereby resolved against the appellant but in favour of the respondent. The judgment of the trial Court was not against the weight of evidence, and was rightly affirmed by the Court below.

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

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miscarriage of justice. See; Iyiola Ogunjumo & Ors vs. Muritala Ademolu & Ors (1995) 4 NWLR (Pt.389) 2541 (195) LPELR – 2337 SC.

In the instant, the appellant has not shown any special circumstance to warrant the interference of this Court with the concurrent findings of fact of the two Courts below. No proof of any perversion or miscarriage of justice.

In the final analysis, we hold the view that this appeal is devoid of any merit and is liable to dismissal. Accordingly, it is dismissed and the judgment of the Court below delivered on 12th May, 2010 which affirmed the judgment of the trial Court given on 26th September, 2008 is affirmed,

There shall be costs of N250,000 against the appellant in favour of the respondent.

Appeal dismissed.

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SC.313/2010