Boniface B. Gwar V. S. O. Adole (2002)
LawGlobal-Hub Lead Judgment Report
MANGAJI, J.C.A.
This is an appeal against the decision of Ogbole J., sitting in the Makurdi Judicial Division of the Benue State High Court, in Suit No. MHC/219/94 dated 28/6/99, wherein he entered judgment for the respondent as plaintiff in a suit involving title to land. The concluding part of the judgment reads as follows:-
“Consequently, judgment is hereby entered for the plaintiff in the following:
A. A declaration that the plaintiff is the owner of the landed property along David Mark Bye-Pass Makurdi consisting an area of 2957.711 square metres and covered by statutory C of O No. BNA 5131.
B. A perpetual injunction restraining the defendant, his servants or agents from entering upon the said property or doing any other acts thereon inconsistent with the plaintiff’s title and ownership of the said property.
On the other hand, I have found no merit in the counterclaim and same is hereby dismissed. Accordingly, the plaintiff is hereby awarded N15,000.00, being general damages against the defendant for trespass.
The appellant felt aggrieved and on 27/8/99, filed a notice and grounds of appeal questioning the judgment on eleven (11) grounds of appeal. In due compliance with the Rules of this court, on the question of filing briefs of argument both parties filed through their learned Counsel their respective briefs. The appellant identified six issues as arising for determination there from. The issues are couched thus:-
- Whether or not, the learned trial Judge was not in law, bound to make a specific finding of fact on the issue of whether the appellant was deemed holder of a Statutory Right of Occupancy (C of O) over the plot in dispute or not, or whether section 34(5) of the Land Use Act applied in the case (Based on ground 3 of the grounds of Appeal).
- Whether or not, the Certificate of Occupancy irregularly and erroneously issued to the respondent extinguished all the existing rights of the appellant, to the use and occupation of the plot in dispute pursuant to s.5(2) of the Land Use Act (Based on ground 1 of the grounds of appeal).
- Whether or not, the staff of the Bureau for Lands and Survey are persons interested contemplated by s.91(3) of the Evidence Act to render inadmissible, the contents of page 16 of exhibit 9 and pages 39 and 41 of exhibit 10 in this case (Based on ground 2 of the grounds of appeal).
- Whether or not, a case of trespass was established against the appellant and if it was, whether the sum of N15,000.00 awarded as damages was not without foundation and excessive (Based on ground 4 of the grounds of Appeal).
- Whether or not, the learned trial Judge distinguished the cases of Dr. Adebiyi v. Williams & Ors. (1989) 1 NWLR (Pt. 99) 611 at 618, Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528 at 540; Savannah Bank of Nigeria Ltd.v. Ajilo (1989) 1 NWLR (Pt. 97) 305 and thereby, made them inapplicable to this case (Based on grounds 5 of the grounds of appeal).
- Whether or not, the learned trial Judge properly evaluated the evidence in this case (Based on grounds 6, 7, 8, 9, 10 and 11, of the grounds of appeal).
The respondent on his side formulated seven (7) issues as arising for determination from the grounds of appeal. The issues are presented in the following manner:-
(i) Whether the C of O No. BNA 5131 granted to the plaintiff (now respondent), was validly granted and is capable of defeating the defendant’s (appellant’s) alleged customary title over the disputed plot or, extinguished the status of the defendant as a deemed of a C of O on the land (by inheritance)?
(ii) Whether the plaintiff has proved that the defendant is a trespasser and is entitled to damages?
(iii) Whether it was proper or constitutional for the plaintiff/defendant’s counsel, to have submitted written addresses without reading same out in the open court?
(iv) Whether or not, the staff of the Bureau for Lands and Survey, are persons interested in this case to warrant the documents, which emanated from them, during the pendency of this case, at the lower court caught up by the provisions of section 91 (3) of the Evidence Act, Cap. 112 Laws of the Federation, 1990?
(v) Whether from evidence before the court, the C of O No. 5131 was not issued to the plaintiff in error?
(vi) Whether it was mandatory for the plaintiff to pay any compensation to the defendant in this case?
(vii) Whether an appellant can seek in his notice and grounds of appeal, reliefs not in his earlier pleading (statement of defence and counter-claim) before the appeal court?
Looking at the issues does reveal that issues (i), (ii) and (iv) seek the determination of questions raised that are same with issues 1, 4 and 3 respectively, contained in the respondent’s brief of argument. Issue No.5 in the appellant’s brief is based on a question, which learned Counsel for respondent gave no attention to and therefore, did not address it as an issue. In the same vein, learned Counsel for the respondent identified in issue No. (iii) a question for determination, which the appellant was unwilling to present. Issues (vi) and (vii) in the respondent’s brief can be disposed of without much strains. In the event, I shall adopt and deal with the appeal based on the issues formulated by the respondent, my choice being based on the clarity of language used. I shall as well extract and consider issue No.5 in the appellant’s brief. But I shall be quick to advise learned Counsel for the respondent, not to over indulge himself in future, by identifying more issues than what the appellant settled for, moreso that he has filed no cross-appeal. It is an ill-wind to embark on such exercise realising as I do that where an appellant fails to identify from a ground of appeal a live issue for determination, he is deemed to have abandoned the ground and the respondent puts himself in an uncalled-for stress to cull out an issue based on the ground, instead of saving himself the agony of the consequences that may ensue, should the issue go adverse to him. Appellant’s resolve not to identify any issue from the grounds of appeal which respondent wanted addressed is akin (though not in all fours) to identifying an issue in respect of which no argument has been advanced. In both cases, the ground of appeal and the issue respectively are deemed abandoned. See the following cases on the latter principle viz: Are v. Ipaye (1986) 3 NWLR (Pt. 29) 416 at418; Ikpuku v. Ikpuku (1991) 5 NWLR (Pt. 193) 571; Atoyebi and An. v. Gov. of Oyo State & An. (1994) 17 LRCN 73; also (1994) 5 NWLR (Pt. 344) 290.
The genesis of the crises giving rise to the taking of a writ of summons by the respondent as plaintiff at the court below has to do with the revocation of his right of occupancy over plot No. BN 163 situated Off 4th Avenue, Ankpa Quarters, Makurdi. When in 1986, the Benue State revoked his right of occupancy over the plot, it promised him an alternative land in addition to paying him compensation for his unexhausted improvement on the land. That right of occupancy was revoked in order to create in Makurdi an access road that linked high level area of the town to Ankpa Quarters. As the result, Government gave the plaintiff an alternative plot of land, situate behind Government College, Makurdi and along David Mark Bye-Pass. The alternative piece of land aforesaid however was a part of the larger parcel of land, which the appellant and his co-heirs inherited from their late father, who was the first to settle on the land. Conflict arose when the plaintiff visited the plot only to find some construction activities going on in the piece of land. On inquiry, he came to know that it was the defendant, who was developing the land. As protests and petitions to the Bureau for Lands and Survey found no acceptable amicable settlement, the plaintiff headed for the court. The plaintiff’s root of title was hinged on the grant to him of title over the piece of land by the Military Governor and as evidenced by the Certificate of Occupancy No. BNA 5131. Defendant’s claim for ownership on the other hand was rooted on traditional title, having inherited it from his father who was the first settler on the land.
At the court below parties filed, settled and exchanged pleadings. Each of them called witnesses in proof of their respective case, the defendant having called more witnesses in order to defend the action and as well prove his counter-claim. Written addresses were later filed by both learned Counsel.
In a reserved judgment delivered on 28th June, 1999, the learned trial Judge awarded the plaintiff the reliefs he sought. He also dismissed the counter-claim on the ground that it was not proved. No party appealed against the dismissal of the counter-claim however, but the defendant filed the present appeal as he was aggrieved by the outcome of the judgment.
Let me dispose of the last issue in the respondent’s brief first. This is so because the resolution of the issue is substantially the product of the nature in which it is couched which appears to me to be pure academic question. The issue is:-
(vii) “Whether an appellant can seek in his notice and grounds of appeal, reliefs not in his earlier pleading (statement of defence and counter-claim) before the appeal court.”
The Supreme Court and this court have repeatedly frowned at formulating issues for determination, which by their tenor beg for academic discourse. Essentially courts of law are established to deal with matters in difference between parties. So when courts are called upon to resolve hypothetical or academic questions it is only intended to invite for enlightened discussion on matters that can be anything but matters in difference. See: Adeyemi v. Opeyori (1976) 9-10 SC 31; Overseas Construction Company Ltd. v. Creek Enterp. Nig. Ltd. (1985) 3 NWLR (Pt. 13) 407; Global Trans Oceanico S.A. v. Free Enter. (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 426 at 440.
Clearly answering issues that are academic in the eyes of the court is a luxury. For the above reason therefore, I refuse to entertain the Issue.
The next palpably ludicrous issue is issue No. (iii). The quarrel under the issue is that although both learned Counsel filed written addresses as ordered by the trial court, nevertheless the addresses were not read out in open court. Learned Counsel for respondent says failure to read the addresses in open court rendered them unconstitutional. He relied for this novel proposition on Ogbaji v. Arewa iles Plc. (supra). I took time to read the authority upwards of one time but am unable to find the principle being espoused. Certainly there cannot be one. If written addresses will have to be read in open court, then the whole objective in filing them is defeated.
It must be realised that the aim of filing written addresses in court, is primarily to save time and obviate unnecessary delay in the administration of justice. The reverse certainly is the end result if an order to file addresses is made and it is insisted that after filing it learned counsel will have to appear to present it viva voce. That obviously cannot be a measure meant to save time and enhance speedy trial. Accordingly, I answer issue No. (iii) in the affirmative thus resolving it against the respondent.
Now let me move on to issue No. (vi). The question is “whether it is mandatory for the plaintiff to pay any compensation to the defendant in this case”. The appellant found it unnecessary to raise it as an issue. The respondent did.
While arguing the issue in the brief, learned Counsel for the respondent recalled how the respondent’s right of occupancy over his property situate in Makurdi township, was revoked to pave way for network of city roads with a firm understanding that he would be given compensation for his unexhausted improvements in addition to an alternative plot of land. He submitted on the above score therefore, that the respondent was under no duty to pay to the appellant any compensation when the latter’s customary title was taken over by Government and granted to the former. He firmly relied on section 29 of the Land Use Act, 1990.
The appellant in both his brief and submissions of his learned Counsel support the appellant’s evidence that where Government lawfully revokes a citizen’s title over land, it has the duty to pay the holder compensation for the value of his unexhausted improvement.
That failure to do so, the person who has been allocated the land so taken over has the responsibility to settle the citizen whose title was revoked.
Undoubtedly, Government appears to reserve the right to revoke a citizen’s title to land for overriding public interest and as specified under section 28 of the Land Use Act, Cap. 202 of the Laws of the Federation, 1990. In the event of such revocation, it is common sense that where the holder has unexhausted improvements on the land as at the date of the revocation, they attract compensation which must be paid for. Revoking title over parcels of land is not a punitive measure. Rather, it is aimed at enhancing the land for the over all good of citizens or as the case may be, to cite projects, ventures or some other tangible and beneficial things for the good of the generality of the people. So where the Governor in whose hands power is vested decides to revoke a Citizen’s title over a piece of land, appropriate compensation must per force, be paid for the unexhausted improvement on the land. For the purposes of correct compensation section 29 of the Land Use Act provides for the methodology of arriving at equitable payment.
But things have long gone haywire. As can be found in the evidence in the record of this appeal, the Governor more often than not would divest a citizen of his title over his piece of land but will fail in his duty to pay to the “victim” the value of his unexhausted improvements on the land. Since the better part of such revocations in Nigeria is meant to create layouts for building purposes in towns and cities, the poor citizen whose vast land is acquired is left to fight out settling him for his improvements, with those who are granted title to such pieces of land. The grantees who are well-to-do or who are desirous of speedily developing the land would, on the side of abundance of caution, negotiate with the former owners of the land. In such cases, they pay compensation directly to the former title holders and proceed ahead to effect their desired developments unhindered. That, I must say is a gentleman’s agreement and not a mandate provided for by law. As far as the Land Use Act is concerned, once the Governor revokes title over land which contains unexhausted improvements thereon, Government will have to compensate the citizen. Any other deal that is struck with the new grantee is a different matter but the law has not made a provision pushing or transferring the duty and responsibilities Government carries between it and a citizen to a third party. That explains why elaborate provision was enacted under section 30 of the Land use Act respecting disputes that might arise concerning the amount of compensation calculated in accordance with section 29 thereof. If such a dispute as is clearly provided has to be referred to the Land Use and Allocation Committee – a Government agency – a new grantee of title has no business negotiating with the former holder about the value of the unexhausted improvements he has on the land.
Having said that much, the answer to issue No. (vi) therefore is very clear: It was not mandatory for the respondent to pay the appellant compensation for the value of the unexhausted improvement found on the land, whose title he is granted although by and large the appellant would make it impossible for the respondent to effect any development on the land so long as he remains unpaid.
It is now convenient for me to take issue No. (iv). That issue deals with the question who is an interested person for the purpose of rejecting document prepared by him during the pendency of a suit before a court of law, as provided for under section 91(3) of the Evidence Act. The issue is numbered 3 in the appellant’s brief of argument.
While arguing the issue in his brief. Learned Counsel for the appellant, stressed that the provision of section 91(3) of the Evidence Act, has clearly rendered a document inadmissible where such a document is prepared during the pendency of the suit or in anticipation of such proceedings to which the document purports to address and having been prepared by a party interested in the subject matter to which the document related. He submitted that in the light of the matter on appeal members of staff of the Bureau for Lands and Survey are not persons interested and that the contents of exhibits 9 and 10 are admissible. He was quick to point out that the pages in contention are page 16 of exhibit 9 and pages 39 and 41 of exhibit 10. He submitted that although pages 39 and 41 of exhibit 10 were written when the suit the dispute relating to which had been filed and was being ventilated in court, page 16 of exhibit 9 was long drafted before the suit was instituted. He reasoned that if pages 39 and 41 are inadmissible as found by the learned trial Judge, page 16 of exhibit 9 which has the same effect (and which the court held to be admissible) should have been relied upon for the proof that the respondent had agreed to be given an alternative piece of land, since appellant had prior customary title over same piece of land.
Continuing, learned Counsel submitted that the doctrine of his pendens relied upon by the court is inapplicable to the facts and circumstances of the case. He urged this court to hold that page 16 of exhibit 9 is admissible a fortiori pages 39 and 41 of exhibit 10 by which evidence the respondent agreed to be given an alternative piece of land in place of the one in dispute thus rendering the issuance of a Certificate of Occupancy over the piece of land to him (respondent) an act in serious error.
In the respondent’s brief, learned Counsel expressed the view that the way and manner staff of Bureau for Lands and Survey were putting pressure on the respondent to accept an alternative plot of land in place of the one in dispute renders letters written by them during the pendency of the suit at the court below inadmissible in terms of section 91(3). He therefore supported the finding of the learned trial Judge.
Continuing, learned Counsel quoted in extenso the definition of the doctrine of his pendens as defined in the Black’s Law Dictionary and submitted that its effect is the same with the provision of section 91(3) of the Evidence Act in the con of the dispute on hand. He urged that the issue be answered against the appellant.
Section 91(3) of the Evidence Act provides for a situation in which documents are made inadmissible where the maker, being an interested person prepared same when proceedings were pending or anticipated. It seems the section was enacted to render inadmissible a document prepared by an interested person in order to defeat through its clear wordings the course of justice. Such a document is rendered inadmissible when the maker knew about the pendency of the suit to which the letter is addressed and even where (not knowing about the existence of a suit) he anticipated that a dispute might arise. In Barkway v. South Wales Transport Co. Ltd. (1949) IK.B. 54, the word “anticipated” used in section 91(3) of the Evidence Act was defined to include “likely”. It does also seem clear that a “person interested” in the con of section 91(3) is not confined to the maker of the document, but to any person whosoever provided that he is interested. See Evon v. Noble (1949) IK.B. 222 at 225. Quite clearly, a person interested might easily be tempted to depart from telling the truth by reason of the interest he has. There lies the wisdom in having section 91(3).Now to the appeal at hand: exhibit 10, pages 39 and 41 were authored by I.I. Utih and Ahembe Adamu respectively of the Bureau for Lands and Survey, Benue State, at a time they knew proceedings were pending over the subject matter of the letters they wrote or at least they ought to have anticipated that the dispute might drag the parties to court given the contents of the letters. An advantage was thus, created for the respondent who cashed on it as a good fencing ground to use it for his benefit. Having regard to section 91(3) of the Evidence Act therefore, the contents of pages 39 and 41 of exhibit 10 were inadmissible. I accordingly, agree with the learned trial Judge that these pages were inadmissible.
As for pages 15 and 16 of exhibit what would seem to be a border line consideration appears to present itself. The minutes in the pages were made on 3/1/94 and 12/5/95 respectively. Action on the contents of the minutes was taken on 4/8/94. As at that date however, no suit was pending regarding the dispute and now was likely anticipated. The learned trial Judge was therefore, right when he held that page 16 was admissible evidence and put in the position he was. I would have arrived at the same decision.
But the dispute hotly fought by parties in the present appeal appears to be a non issue and were fought on facts that do not justify the energy so far wasted. The facts no doubt have torpedoed the objective the arguments intended to achieve. When pages 15 and 16 of exhibit 9 and pages 39 and 41 of exhibit 10 were made, the respondent had long been issued with a statutory right of occupancy over the disputed land. Exhibit 2 being the statutory right of occupancy was signed by the Governor on 10/5/93 and to date the certificate stands unaffected. So whatever discussions were presented on pages 15 and 16 of exhibit 9 and pages 39 and 41 of exhibit 10 one year after, were treatment administered after death. They were akin to blowing muted trumpet since neither exhibit 2 was revoked or withdrawn as a result of the discussions nor was any action taken which affected the validity of exhibit 2. In the event whether exhibit 2 was issued in error has nothing to do with the contents of pages 15 and 16 of exhibit 9 and pages 39 and 41 of exhibit 10. Since the information and discussions in the exhibits were not the relevant considerations taken, when the statutory right of occupancy that is exhibit 2 was issued to the respondent whether the relevant pages in exhibits 9 and 10 were found to be statements of interested persons or not, the status of exhibit 2 issued on 10/5/93 remained extant.
The learned trial Judge in my view, was right when he held that exhibit 2 was not issued in error. But the status of exhibit 2 will be found when I discuss issue No. (i). As for issue No.3, I positively answer it against the appellant. It is resolved accordingly. The above discussions also cover and provide answer to issue No. (v). As far as the issuance of the Certificate of Occupancy No. BNA 5131 is concerned, it was not made in error. It was genuinely made although the question whether the Governor was right in issuing it is a different matter, which I shall consider under issue No. (i).
Issue No. (i) is the nitty-gritty of this appeal. I hereunder reproduce it:-
“Whether the C of O No. BNA 5131, granted to the plaintiff (now respondent) was validly granted and is capable of defeating the defendant’s (appellant’s) alleged customary title over the disputed plot or extinguished the status of the defendant as deemed (grantee) of a C of O on the land by inheritance.”
While arguing the issue as contained in his brief, learned Counsel for the appellant submitted that the appellant is a deemed holder of a statutory right of occupancy, because he had title over the land before the Land Use Act was promulgated. He relied on section 34(2) and (3) of the said Land Use Act as well as a number of decided cases. He further submitted that if the learned trial Judge and adverted his mind to the fact that appellant is a deemed holder, he would have appreciated the correct interpretation of section 5(2) of the Land Use Act.
In rather prolix manner, learned Counsel for the respondent presented his argument in the brief on this issue. Learned Counsel submitted that the Certificate of Occupancy No. BNA 5131, issued to the respondent over the land in dispute was properly and validly made after having followed proper processes. In genuine spirit of the legal profession learned counsel submitted thus:-
“There is ample evidence that the defendant’s father had prior existing right over parcels (of) land in Makurdi, which is an urban area, before the coming into effect of the Land Use Act in 1978 (see page 17 of the appellant’s brief).”
Continuing at page 18 of the brief, learned Counsel conceded as follows:-
“I am not in doubt that the defendant’s father first settled on the alleged land in 1950, which at that time was a virgin land. After his death, the defendant took over the control and management of his vast land. There is no evidence to the contrary.”
Continuing, learned Counsel so commendably reviewed the history giving rise to the dispute and submitted that section 2(1) of the Land Use Act did rest in the Governor in areas that are Urban all Lands therein. He submitted that by gazette No. 21 Vol. 10 of 23/5/85 a declaration was made respecting the limits of the Makurdi Urban area.
Still in submission, learned Counsel posits that the acquisition of the land in dispute by Government is lawful. He submitted that by the grant of the piece of land to the respondent, appellant’s right and interest on the land became extinguished. He urged the issue be resolved in the favour of the respondent.
It is a principle long established and followed in series of decided cases that where a plaintiff’s ancestor was the original founder of the land in dispute, the presumption will be that the plaintiff as his successor-in-title will continue to be the owner of the land in dispute, until the contrary is proved. See George Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799 at 807; Runsewe v. Odutola (1996) 4 NWLR (Pt. 441) 143; Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177 at 206.
There are five established ways of proving title. The decisions of the Supreme Court in Idundun v. Okumagba (1976) 9 – 10 SC 227 at 246 – 250; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Anyawu v. Mbara (1992) 5 NWLR (Pt. 242) 381 and Alli v. Alesinloye (supra) have all indicated conclusively that there exists five recognised methods of proving title. They are as follows:-
(a) “Proof by traditional history or traditional evidence;
(b) Proof by grant or the production of document of title;
(c) Proof by acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons who exercise such acts, are the true owners of the land;
(d) Proof by acts of long possession; and
(e) Proof by possession of connected or adjacent land in circumstance, rendering it probable that the owner of such land would in addition be the owner of the land in dispute.”
Sections 5, 9, 29 and 34(s) have also attracted submissions from both learned Counsel. I may therefore, do well to reproduce them so that my final findings will easily be appreciated. The relevant parts of the sections are the following:-
5(1) It shall be lawful for the Military Governor in respect of land whether or not in an urban –
(a) to grant statutory rights of occupancy to any person for all purposes;
(b) to grant easements appurtenant to statutory lights of occupancy;
(c) ……………………….
(d) ……………………….
(2) Upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which right of occupancy shall be extinguished.
“5(1) It shall be lawful for the Military Governor in respect of land whether or not in an urban are:-
(a) to grant statutory rights of occupancy to any person for all purposes;
(b) to grant easements appurtenant to statutory rights of occupancy;
(c) to demand rental for any such land granted to any person;
(d) to revise the said rental-”
29(1) If a right occupancy is revoked for the cause set out in paragraph (b) of sub-section (2) of section 28 or in paragraph (a) or (c) of sub-section (3) of the same section, the holder and the occupier shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.
(2) If a right occupancy is revoked for the cause set out in paragraph (b) of sub-section(2) of section 28 or in paragraph (a) or (c) of sub-section(3) of the same section, the holder and the occupier shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.
(2) If a right of occupancy is revoked for the cause set out in paragraph (c) of sub-section (2) of section 28 or in paragraph (b) of sub-section (3) of the same section, the holder and the occupier shall be entitled to compensation under the appropriate provisions of the Minerals Act or the Mineral oils Act or any legislation replacing the same.
(3) If the holder or the occupier entitled to compensation under this section is a community, the Military Governor may direct that any compensation payable to it shall be paid:
(a) to the community; or
(b) to the chief or leader of the community to be disposed by him for the benefit of the community in accordance with the applicable customary law; or
(c) into some fund specified by the Military Governor for the purpose of being utilised or applied for the benefit of the community.
Compensation under sub-section (1) of this section shall be, as respects:-
(a) the land, for an amount equal to the rent, if any, paid by the occupier during year in which the right of occupancy was revoked;
(b) buildings, installation or improvements thereon, for the amount of the replacement cost of the building, installation or improvement, that is to say, such cost as may be assessed on the basis of the prescribed method of assessment as determined by the appropriate officer less any depreciation, together with interest at the bank rate for delayed payment of compensation and in respect of any improvement in the nature of reclamation works, being such cost thereof as may be substantiated by documentary evidence and proof to the satisfaction of the appropriate officer;
(c) crops on land apart from any building, installation or improvement thereon, for an amount equal to the value as prescribed and determined by the appropriate officer.
(5) Where on the commencement of this Decree the land is undeveloped, then:-
(a) one plot or portion of the land not exceeding half hectare in area shall subject to sub-section (6)below, continue to be held by the person, in whom the land was so vested as if the holder of the land was the holder of statutory right of occupancy granted by the Military Governor in respect of the plot or portion as aforesaid under this Decree; and
(b) all the rights formerly vested in the holder in respect of the excess of the land shall on the commencement of this Decree be extinguished and the excess of the land shall be taken over by the Military Governor and administered as provided in this Decree.
Having identified the sections of the Land Use Act, 1990, in respect of which the matter before the court below was fought and settled, let me now relate it to the facts of the case. The defendant had raised under paragraph 8 of his amended statement of defence, the issue that he is a deemed grantee of title. This was in answer to paragraph 13 of the statement of claim. Let me say that the respondent’s title was rooted in the issuance to him of a statutory right of occupancy over the disputed land. Thus his title is tied to a grant made to him by the Governor. The appellant on the other hand founded his title by traditional history. He led evidence to establish that his father was the first person to clear and occupy the land in dispute. That he got the land through inheritance and that because no Government or Military Governor issued to him any instrument divesting him of his title, the mere issuance of a Certificate of Occupancy over the same piece of land to the respondent will not cancel his interest in the land.
This aspect of the case at the court below remained fairly undisputed. Learned Counsel for the respondent had conceded that appellant had traditional title over the piece of land. Even at the risk of repeating myself, I shall quote portions from pages 17 and 18 of the respondent’s brief of argument in order to show the clear admission made that appellant was indeed the customary title holder over the land:-
“It is clear from the paragraphs referred to above, that he inherited vast parcels of undeveloped land. There is ample evidence that the defendant’s father had prior existing right over parcels (of) land in Makurdi town, which is an urban area before the coming into effect of the Land Use Act in 1978. (see page 17 of the respondent’s brief.)
I am not in doubt that the defendant’s father first settled on the alleged land in 1950, which at that time was virgin land. After his death, the defendant took over the control and management of his vast land. There is no evidence to the contrary.” (see page 18 of the respondent’s brief.)
Having admitted that the appellant had customary title over the land in issue as well as some vast piece of land (not subject of any action) how then was the appellant divested of his title. It is fundamental to note that the law had recognised the existence and superiority of customary title over land where ever it exists. The Land Use Act was in no way enacted with the aim of divesting citizens of their Certificate of Occupancy. Far from it. The Act is meant to strengthen ownership of land that derive existence through traditional history. It is for that reason that the Act recognises the existence of the title of a customary land owner over his parcel of land as a deemed holder where such land exists before the commencement of the Land Use Act. The radical title over land which a holder has before the commencement of the Land Use Act however can be revoked for public interest as specified under section 28 of the Act. Where title to a piece of land is revoked it becomes mandatory to put the title holder on notice about the revocation.
S.28(6) of the Act specifically provided as follows:-
“The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Military Governor and notice thereof shall be given to the holder.”
In my judgment notice of revocation of title and serving such notice to the person affected are twin requirements that have to be complied with strictly. I have gone through the record over and over, but could find no evidence that the appellant’s title over the land in dispute was duly revoked and the notice of revocation properly communicated to the appellant. All that was to it, was that appellant’s land was simply converted to a layout, an act that was the wont of the Military Governments. No notice was ever prepared by a public officer duly authorised by the Military Governor in that behalf not to talk of serving same on the appellant.
My attention has been drawn to the existence of the Land Use (Designation of Capital as greater Makurdi Order, 1984,) gazette No. 21 of Benue State, 1985. I have noted its existence. But that the order was promulgated does not confer power on the relevant public officer to embark on dissecting citizens’ title holding like a hungry lion. As it is in this appeal there was no evidence before the court below proving the location of the land in issue in order to arrive at a decision that it falls within the area designated as urban under the 1984 order. It seems the learned trial Judge, with his personal knowledge of the area (and certainly not because of any evidence led) assumed that the area is within the greater Makurdi area. To my mind, the learned trial Judge had committed grave error. I must reiterate that evidence should be elicited to prove that the land in issue is situate within the Makurdi Urban Area. Now, where decision is taken and action completed resulting into the revocation of the appellant’s traditional title over the parcel of and, the duly authorised officer shall reduce it to writing and have the notice served on the appellant. As far as the evidence or record goes, there appears to be no evidence that the land in dispute was within the area designated as Makurdi Urban Area. Also not in evidence is any indication of the revocation of the appellant’s title much less communicating the decision to the appellant. Given the above grave lapses, I am convinced beyond doubt that the issuance of the certificate of occupancy over the appellant’s land by the Governor thus signifying title is invalid. Certificate No. BNA 5131 so issued is in my judgment ineffective and void. Certainly a statutory right of occupancy properly issued by the Military Governor effectively extinguishes all existing rights to the use and occupation of the land which is the subject of the certificate. See section 5(2) of the Land Use Act. But section 5(2) aforesaid applies in relation to and after having complied with other relevant sections of the law. It does not stand on its own independent of the generality of the statute.
The learned trial Judge in my view was wrong in isolating section 5(2) of the Land Use Act and using its clear wording to find that since exhibit 2 was issued to the respondent, the appellant had lost all existing rights to the use and occupation of his land which he possessed as a deemed holder even though his said deemed holding was not revoked. The learned Judge in the circumstance was wrong to have made a declaration that the respondent is the owner of the landed property along David Mark bye-pass Makurdi on the sole ground that the Governor of Benue State has the power to grant statutory right of occupancy and that if he so does any prior title holder loses absolutely all his existing rights to the use and occupation of the land. Without doubt the exercise of the power conferred on the Governor under section 5(2) of the Land Use Act presupposes prior strict compliance with section 28 of the Act where there exists title holders to the land affected. The quarrel of the appellant and which by the evidence on record, was established in his favour is that he is a deemed title holder and that his said title has not been revoked. He is absolutely right. From the evidence on record and the clear admission by the respondent the appellant has customary title over the land in dispute. That title was not revoked by the Governor and his existing rights to the use and occupation of the land therefore remain extant. The mere issuance of a statutory right of occupancy over the said piece of land by the Governor in my view, does not have the effect of extinguishing appellant’s title. The act of issuing the certificate of occupancy was like putting the cart before the horse. It was a hasty exercise premised on no law and thus, rendering void its intended effect.
Certificate of Occupancy whether statutory or customary issued under the Land Use Act, I must stress, cannot be said to be conclusive evidence of any right, interest or valid title to land in favour of the grantee. At best it is a prima facie evidence of such right interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void. See Lababedi v. Lagos Metal Ind. Ltd. (1973) NSCC 1 at 6; Olohunde v. Adeyeju (2000) 10 NWLR (Pt. 676) 562 at 588. So where it is shown by evidence as in this case, that another person other than the grantee of a Certificate of Occupancy had a better title to the grant, the court may have no option but to set aside the grant or otherwise discountenance it as invalid, defective and/or spurious as the case may be. See Dzungwe v. Gbishe & All. (1985) 2 NWLR (Pt. 8) 528 at 540; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562 at 588. I have also noted the evidence made bare in the record that appellant has vast land in Makurdi. That in my judgment is only an information which has nothing to do with the question in controversy before the court below and over which parties joined no issues. Indeed, even if appellant has such vast land, the extent of it was not proved and the court would not work on assumptions and suppositions. The only piece of land in controversy before the court below and over which issue was joined is the plot consisting of an area of 2957.711 square metres and situate behind Government College Makurdi, along David Mark bye-pass. The argument presented by learned Counsel for the respondent that appellant was entitled to half-an-hectre of the vast undeveloped land he has in Makurdi therefore, holds no water. I should emphasise that even if appellant had vast undeveloped land in Makurdi, it is not an issue and no action is instituted questioning his said vast ownership. As for the land in controversy, no evidence was led to prove its location relative to the effect of the 1984 order on the designation of the Makurdi Urban Area. I repeat, it is not for a counsel to reason that an area is within an Urban area. Only admissible evidence would establish that fact. And as it is, no such evidence was led before the court below tending to prove that the area in controversy is situate in an area designated as Makurdi Urban Area.
It is my view that appellant’s title to the land in issue was not revoked and Government did not acquire the said land for the obvious reason that no evidence exists on record. The issuance of exhibit 2 (statutory right of occupancy No. BNA 5131) cannot stand on its own. It is always a by-product of a duly and lawfully acquired land.
Once issued when a deemed light exists and not revoked, the statutory right of occupancy becomes a worthless document because there cannot exist concurrently two title holders over one and the same piece of land in the con of the appeal at hand. What is obvious therefore, is that the appellant, who is a deemed holder of title over the land in issue has valid title but the respondent who had prior title acquires no title by reason only of the certificate of occupancy he possesses. Issuance of statutory certificates of occupancy is not a measure aimed at divesting customary title holders of their land holding without justification. It is only embarked upon for public purpose. And before it is done the customary title holder will have to be notified by serving on him notice of revocation duly written by an authorised public officer at least to prepare him negotiate for the payment to him of the value of the unexhausted improvements he has on the land as at the date of the revocation.
The answer to the issue No. (i) is clear as crystal. The statutory right of occupancy No. BNA 5131 issued to the respondent was not validly granted and could not therefore have the effect of defeating appellant’s title over the land in dispute. It has no effect whatsoever just as it could not extinguish the title of the appellant rooted in traditional history and which title has not been revoked. The issue is decidedly resolved in the favour of the appellant.
The resolution of issue No. (2) above has the effect of settling issue No. (ii). Because the respondent has not proved a more superior title to the land in issue, he has provided no evidence that appellant is a trespasser. Trespass is an offence against possession. It is offence that can be proved against all persons except one who has better title. As it is in this case the respondent had failed to prove trespass against the appellant. The latter in whom title validly rested cannot be held to be a trespasser because he is deemed to be in possession at all times. The learned trial Judge was in error in finding the appellant to be a trespasser on the ground that the respondent had established better title. The appellant clearly established better title as against the respondent and he ought in the circumstance, not to have committed any trespasser to be so liable in trespass. No liability therefore, arose for any damages. This issue is accordingly resolved in the favour of the appellant.
Issue No.5 in the appellant’s brief relates to the dictum of the learned trial Judge who found the cases of Dr. Adebiyi v. Williams & Ors. (1989) 1 NWLR (Pt.99) 611 at 618; Dzungwe V. Gbishe (supra) and Savannah Bank Ltd. v. Ajilo (1989) 1 NWLR (Pt.97) 305 at 325, distinguishable from the facts and circumstances of the present case.
I would rather reproduce what the learned trail Judge said:-
“To my mind the language and words of S.5(2) are clear and unambiguous and it was on that basis that I have earlier given my opinion, and I say no more. On the other had the case cited by the learned counsel, namely: of Dr. Adebiyi v. Williams & Ors. (1989) 1 NWLR (Pt.99) 611 at 618; Dzugwe v. Gbishe (1985) 2 NWLR (Pt.8) 528 at 540 and 548; Savannah Bank Ltd. v. Ajilo (1989) 1 NWLR (pt.97) 305 at 325, are hereby distinguished and held inapplicable to the instant case.”
Without doubt, the learned trial Judge conclusively held that the three cases were distinguishable from the case before him. But he failed to state how far and for what reasons they were made inapplicable. We neither distinguished the cases from the one on hand in their factual contents nor from the views of the proposition of the law intended to be relied upon. What is essential in distinguishing one case from the other is to point out some essential difference between the two in order to show why one can be applied to the other. The adjective “Distinguishable” is not intended to be used as a magic wand. It is a word which when used in the legal sense, attracts reasons relied upon in showing its applicability. The learned trial Judge simply cited the three cases and concluded that they are inapplicable to the case before him. He only concluded the existence of some distinguishable features without saying what they are. The clear answer to issue No. 5 is that the learned trial Judge had failed to distinguish the three cases he cited from the facts and circumstances of the suit before him.
On the whole the appeal succeeds in part. Because of the answer to issue No. (i) the appeal has to be resolved in favour of the appellant. Consequently the appeal is allowed and the judgment of Ogbole J. of the High Court of Benue State in suit No. MHC/219/94 dated 28/6/99 is hereby set aside. Specifically, the declaration that the respondent was the title holder of the land in dispute and the injunction granted restraining the appellant as well as the general damages awarded are each set aside the respondent having failed to prove his case. I however, affirm the judgment as it affects the counter-claim since the judgment relating to the said counter-claim was not appealed against by any of the parties.
Costs of N5,000.00 is awarded in the favour of the appellant.
Other Citations: 2002)LCN/1188(CA)