Chief Paul Aminadoki Obu & Ors V. A. Onibudo and Company Limited & Ors (2009)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, JCA,
The plaintiffs now as Appellants have appealed against the judgment of the High Court of Rivers State presided over by M.U. ODILI (J) as she then was, delivered on the 24th July 2003.
The plaintiffs by a writ of summons dated 21/4/1998 commenced proceedings against the Defendants (hereinafter referred to as the “Respondents”) as follows:
“1. A DECLARATION that the certificate of occupancy with reference No. RSG. 019463, Registered as No. 51 at page 51 in volume 99 of the state’s Land Registry, Port Harcourt issued by the Military Governor of Rivers state on 1st day of November, 1981 to A. ONIBUDO & COMPANY LIMITED is null and void.
- A DECLARATION that the plaintiffs are entitled to possession of the parcel of land or premises demise (sic) by the plaintiffs to ONIBUDO & COMPANY LIMITED which Land is situate at Abuloma and particularly described in the Lease dated 30th December 1977 and Registered as No. 94 at page 94 in volume 61 of the state’s Land Registry, Port Harcourt.
- Possession of the said premises or parcel of Land.
- N1,000,000.00 Damages for breach of implied condition/covenant.
- Mesne profit at the rate of N1,000,000.00 per annum from the date of service of the writ until delivery of possession.”
By an application dated 23/4/2002 the 1st Defendant sought and obtained leave to amend and did amend its statement of Defence and counter-claim, thereby introducing material facts to buttress the point that it did not assert any superior title to that of the plaintiffs. The 1st Defendant also sought for a rectification of the Certificate of Occupancy.
After a review of the evidence at the trial the learned judge refused the plaintiffs, relief for declaration that the certificate of occupancy in a nullity. She however, found in favour of the 1st Defendant on its counter-claim that the said Certificate of Occupancy is valid, subsisting and unimpeachable having regard to the facts of the case. The tenure expressed in the certificate of occupancy was reduced to bring it in line with the tenure in the earlier registered Deed of Lease plaintiff’s and the Defendant.
Aggrieved by this decision, plaintiffs appealed to this court filing originally one ground of appeal with indication to file additional grounds. On 3/5/2008 grounds of appeal numbered 2 and 3 were deemed validly filed. Consequently a total of three grounds of appeal have been presented before this court, reproduced without their particulars as follows:
“(1) Judgment is against the weight of evidence.
- The learned trial judge erred in law when she held that the certificate of occupancy issued to the 1st Defendant is valid, subsisting and unimpeachable.
- The learned trial judge erred in law when in her judgment she proceeded a reduction of the duration of the term of the certificate of occupancy to accord with the term of the lease granted to the 1st Defendant.
In due compliance with the Rules of this court Briefs of argument were filed by the Appellant and the Respondents. The Appellant also filed a Reply Brief to the 1st, 2nd 3rd Respondents briefs of argument on 19/11/2007 and 30/6/2008 respectively.
The Appellant in his Brief of argument dated 12/6/2004 and filed on 14/6/2004 sole issue was presented for determination of this appeal thus:
“Whether the learned trial judge was right in granting the 1st defendant declaration that the certificate of occupancy registered as No. 51 at pages 51 in volume 99 of the Land Registry, Port Harcourt is subsisting, valid and unimpeachable, injunction and a further declaration of entitlement to possession of the relevant parcel of land for the term or duration of the said certificate of occupancy.”
In the 1st Respondent’s brief of argument dated 28/5/2006 and filed on 30/5/2006 but deemed filed upon an application for extension of time, on 19/11/2007 two issues were formulated for the consideration of this appeal as follows:
“3.1. Whether the learned trial judge in her judgment had made contradictory declarations, first nullifying the certificate of occupancy and later holding the same to be valid, subsisting and unimpeachable.
3.2. whether or not the Appellants have distilled any issue from the Grounds of Appeal filed such that will sustain the argument or Appellant’s brief in this appeal.
The 2nd and 3rd Respondents’ brief of argument dated 19/11/2007 was filed on 20/11/2007 but deemed filed pursuant to an application for extension of time to file same on 18/6/2008. The sole issue presented by the Appellants for the determination of the appeal was adopted in its entirety.
On 11/2/2009 this appeal was taken. Learned counsel for the Appellants J.H. IGBIKI BERESIMA Esq, for the Appellants identified their briefs of argument and the two Reply briefs, adopted and relied on his submissions and arguments therein, without further amplifications, urged this court to allow the appeal.
GINIKA ILOMA (Mrs.) learned counsel for the 1st Respondent leading TONYE BRAIDE (Miss) identified that brief of argument of the 1st Respondent which she adopted and relied on. The court is urged to dismiss the appeal and accordingly affirm the decision of the lower court.
It is pertinent to note here that the 2nd and 3rd Respondents or their counsel were not in court when this appeal was heard. However, the court’s Records show that on 18/6/2008 when this matter came up for hearing. Mr. V.G. AMANNAH Esq. and A.B. ISHAYA Esq. were present in court when this appeal was adjourned to 11/2/2009 for hearing. They have filed a joint brief. By virtue of Order 17 rule 9(4) of the Court of Appeal Rules 2007, the appeal is treated as having been argued by the Respondents.
It is my respectful view that the sole issue distilled by the appellants is quite apt and relevant to the determination of the appeal. This appeal has raised a very interesting issue of law: whether the learned trial Judge rightly granted the 1st defendant a declaration that the certificate of occupancy registered as No. 51 at page 51 volume 99 of the Lang Registry, port Harcourt is subsisting, valid and unimpeachable; injunction and a further declaration of entitlement to possession of the relevant parcel of land for the term or duration of the said certificate of occupancy. I shall however recapitulate the facts of this case as they are indeed not in dispute. The back – ground facts set out in the pleadings and evidence at trial are that the land in dispute belongs to the Plaintiffs who inherited same under the relevant native law and custom and have been in possession thereof and exercised acts of ownership inclusive of farming thereon. on 30/12/1977 they granted a lease of the said land to the 1st defendant for a term of 90 years commencing there from which is registered as No. 94 at page 94 in volume 6l of the Land Registry kept by the 3rd Defendant, which leave was admitted as Exhibit A. That it was agreed that the 1st defendant would not challenge the plaintiffs, title or claim a superior title to the land in dispute but he breached the agreement and without the knowledge of the plaintiffs applied for and obtained a certificate of occupancy in 1981 in respect of the said land from the Governor of Rivers State without payment of compensation to the plaintiffs who unaware of this development effected an upward review of rent in 1995 at the request of the 1st defendant. The said certificate of occupancy and the unregistered deed/agreement setting out the reviewed rent were admitted as Exhibits B and D respectively. That as at 1995 when the sum of N1,000,000.00 was paid to the plaintiffs as rent the plaintiffs were not aware of the fact that the offending certificate of occupancy had been obtained and neither were they aware of any publications in the Newspapers by the 1st defendant in relation thereto; not until 1997 when the 1st defendant through its solicitor’s letter admitted as Exhibits C – I that the plaintiffs became aware that 1st defendant had obtained a Certificate of Occupancy in 1981. That application for and the grant of the certificate of occupancy was based on the lease granted by the plaintiffs in Exhibits C – C1 to show that the 1st defendant had been using the said Certificate of Occupancy that is Exhibit ‘B’ in claiming superior title to the property in dispute. In consequence the plaintiff went to the lower court to seek for the reliefs set out in their writ and statement of claim including a declaration that Exhibit B is null and void.
The case put forth by the 1st Defendant as can be distilled from its amended statement of Defence, particularly paragraphs 2 – 24 is that the 1st defendant obtained the said certificate of occupancy in respect of the land in dispute, the radical title of which is vested in the plaintiffs who own the said land, farmed and remained in possession thereof and let in 1st defendant by virtue of Exhibit ‘A’ and that the plaintiffs disturbed the subtenants and that by obtaining the said Exhibit ‘B’ it was not meant to challenge the plaintiffs’ superior title. The 1st, 2nd, and 3rd Defendants admitted through DWL, and Dw2 that whereas the lease, Exhibit ‘A’ made in 1977 granted a term of 90 years to 1st defendant Exhibit B issued by the State Governor in 1981 granted it period of 99 years to the 1st defendant and it is a common ground that both Exhibits ‘A’ and ‘B’ relate to the land in dispute to which the plaintiffs claim ownership.
The plaintiffs contended that an adjustment of tenure was not set out in the pleadings as relief sought. In the face of the foregoing, the learned trial judge made in part a finding, that is, a declaration that the said certificate of occupancy (Exhibit B) is null and void; awarded mesne profits and damages for breach of implied condition. That is not all, thereafter the learned trial judge went further to grant some reliefs claimed by the 1st defendant in the counter-claim and in particular a declaration that same certificate occupancy (Exhibit B) is subsisting valid and unimpeachable granted injunction and amended the term or duration of the said Exhibit ‘B’ to read 90 years commencing from 1977 and further declared the 1st defendant being entitled to continued possession of the land in dispute.
What is being contended in this appeal is that since the learned trial judge had rightly held that the certificate of occupancy Exhibit ‘B’ is null and void, it is erroneous for her to turn round in the same judgment to hold that the said document is valid, subsisting and unimpeachable. That it is equally wrong to purport to amend the document as she did in this case. I must observe that the approach adopted by the learned trial judge from the materials placed before her, the holding or declaration that the certificate of occupancy registered as No. 51 at page 51 in volume 99 of the Lands Registry, Exhibit ‘B’ as well as the injunction granted and the consequential or related declaration of 1st entitlement to possession of the land in dispute in terms of the duration of the said certificate is erroneous and cannot be said to be justified. Seeing it from this point of view, the said declaratory reliefs and injunction were made in favour of the 1st Respondent after she had in the same judgment rightly granted the 1st relief sought by the appellants namely a declaration that the said certificate occupancy with reference No. RSG- 019463 registered as No. 51 in volume 99 of the State’s Land Registry Port Harcourt issued by the Military Governor of Rivers state on the 1st day of November 1981 to the 1st Respondent is null and void. Thus as already noted, having declared Exhibit B null and void in the main claim, it is an erroneous approach for the learned trial judge to subsequently declare the same certificate of occupancy valid, subsisting and unimpeachable while considering the 1st Respondent’s counter claim. With due respect, it is not within the competence of the learned trial judge while considering the counterclaim to indirectly overrule her earlier finding that the said certificate was null and void and hold same to be valid.
Having regard to the admitted facts led in evidence, the Appellants are the owners of the land in dispute and holders of a deemed grant of a right of occupancy by virtue of ss. 34 and 36 of the Land Use Act 1978 which has not been revoked under s. 28 of the Act before the Military Governor made a grant of a statutory right of occupancy to the 1st Respondent when he issued Exhibit ‘B’, without payment of compensation or prior knowledge of the Appellants. The Respondents as well as the Military Governor who issued the Certificate knew about Exhibit ‘A’, which clearly shows the Appellants as owners and the 1st Respondent as a mere tenant of the Appellants. The learned trial judge ought to have maintained the correct position set out in her earlier finding made in favour of the Appellants that Exhibit B is null and void. Equally the grant of injunction against the Appellants as well as the second declaration namely, the 1st respondent’s entitlement to a continuing possession of the land in dispute throughout the duration of the Certificate of Occupancy cannot stand since the grant of the reliefs is predicated on the said certificate, that has been rightly held to be invalid null and void. Equally the reduction of the term or duration set out in Exhibit ,B, to accord with the shorter duration set out by the Appellants and the 1st Respondent in the lease, Exhibit’ A’ cannot cure the defect in the invalid certificate of occupancy. Besides, the reliefs setout by the parties in the pleading did not include a prayer for a reduction of the number of years set out in the said certificate of occupancy. The relief having not been sought in the pleading but suggested by the Respondents in their oral evidence, the learned trial Judge ought not to have granted a relief that was not claimed. See ILONA V. IDAKWO (2003) 11 NWLR (Pt. S30) 53, 83 – 86 and DANTSOHO V. MOHAMMED (2003) 6 NWLR (pt. 817) 457, at 482 and 493. The 2nd and 3rd Respondents in their brief contended that the 1st Respondent is entitled to its counter-claim as set out in paragraph 27 that the lower court is empowered to order a ratification to align the number of years as contained in the lease, that is Exhibit .A, with that contained in the certificate of occupancy. I agree with the learned counsel for the Appellants that the 2nd – 3rd Respondents missed the point. The 1st Respondent having filed an amended statement of defence and counter-claim shown on p57- 80 of the Records with reliefs by way of counter-claim, the court cannot consider any longer the reliefs set out on pp.27 of the 1st Respondent original statement of defence and counter-claim, but has to consider the reliefs set out in paragraph 28(a), (b), (c), (d) and (e) of the amended statement of defence and counter claim as shown on pages,60-61 of the Record. This is because the 1st respondent’s original statement of defence and counter-claim no longer define the issue but the amended statement of defence and counter-claim does. On the effect of amendment in relation to the 1st respondent’s pleading on page 57-80; see decision of the supreme court in OSHO V. APE (1998) 6 SCNJ 139, 151-152. Also by paragraph 28 of the 1st Respondent’s amended statement of defence the only main claim is the relief numbered “a”‘ It reads thus:
“a. A declaration that the 1st Defendant is entitled to continued possession of the land, the subject matter of this suit subject only to the tenure granted by the Deed of Lease.”
Paragraphs ‘b’, ‘c’, ‘d’ and ‘e’ are in the alternative reliefs to relief ‘I’ where relief ‘a’ is granted none of the reliefs ‘b’, ‘c’ and ‘e’ can be granted because they are no longer relevant. See further YESUFU V. RUPPER INTERNATIONAL N.V. (1996) 4 SCNJ 40 at p.50.
I have carefully perused the 1st Respondent’s amended statement of defence and counter claim, there is no relief or claim that the certificate of occupancy admitted as “Exhibit B’ should be held or declared subsisting valid and unimpeachable or that the learned trial judge should by himself reduce the term of 99 years written on Exhibit ‘B’ certificate of occupancy to agree with the term of 90 years shown on Exhibit ‘A’, that is the lease. Issues and claims are tried and considered as set out in the pleading. The trial court and the parties ought not depart from the pleadings in the 1st Respondent’s amended statement of defence and counter claim. See AKPAKPUNA V. NZEKA (1983) 2 SCNLR 1 at 14.
I must also observe that the issue of rectification is irrelevant in the case at hand, for where a party seeks rectification of L document which must be such document or contact, between him and another, he must show that the error sought to be corrected by rectification arose out of a mistake common to both parties or show that the mistake was induced by fraud or misrepresentation.
As regards the 2nd – 3rd Respondent’s submissions on pp 2 3 of the brief in relation to claims of the Appellants for mesne profit and Exhibit C, that is letter written by 1st Respondent’s counsel, I agree with the learned counsel for the Appellants that the issue of mesne profit is not relevant since no ground of appeal touches on this issue. The submission that Exhibit ‘C’ is a personal opinion of 1st Respondent counsel does. Not arise in this appeal. “‘No ground raises this issue and there is no cross-appeal either. Again, the matter was not raised at the trial.
As a final point, I must further observe that the 2nd – 3rd Respondents contended in paragraph 4 on page 2 of their brief that the existence of a certificate of occupancy does not deprive the lessee of his reversionary interest or to his superior title. It must be noted that in the instant case is where the trial judge had held that the certificate of occupancy was null and void and at the same time, in the same judgment held the certificate to be valid, subsisting and unimpeachable. By the provisions of s.9- 10 of the Land Use Act, a certificate of occupancy is issued in evidence of superior title held by the holder thereof. A lessee cannot have anything more than the leasehold interest which is distinguishable from the superior title of his lessor which is a right of occupancy. In its provisions, as set out in sections 2 – 10, the Land Use Act does not intend to elevate a lessee to the position of his landlord. By the provisions of the Act it is the lesser that ought to be issued with a certificate “of occupancy while the lessee can rely on the lease agreement as evidence of his leasehold interest. This is the position of the law. In any event, it must not be forgotten that what is being contended in this appeal is that since the learned trial judge had rightly held that a certificate of occupancy (Exhibit ‘B’) is null and void, it is erroneous for the same learned trial judge in the same judgment to turn round and held that the said document is valid, subsisting and unimpeachable. It is equally wrong for the same learned trial judge to purport to amend the document as she did.
In the final analysis this appeal succeeds. It is allowed. The part of the judgment of the lower court whereby the learned trial judge failed to declare null and void the certificate of occupancy No. RSG 019463 registered as No. 51 at page 51 in Volume 99 as the Rivers State’s Land Registry Port Harcourt is hereby set aside. In its stead, I do hereby order that the said Certificate of Occupancy is null and void. In view of circumstances surrounding this case, I make no order as to costs.
Other Citations: (2009)LCN/3229(CA)
