Goddy Obinna Amachukwu V. Emmanuel N. Ojukwu (2009)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE, ARIWOOLA, J.C.A.

This appeal emanated from the decision of Anambra State High Court, Nnewi Judicial Division sitting at Nnewi. The Plaintiff had claimed before the trial Court the following reliefs:

1. “A declaration that the Plaintiff being the owner in possession of piece and parcel of land measuring approximately 541.703 square metres in area, situate at Umucle Umudim Nnewi, Nnewi North Local Government area, is entitled to be granted the statutory right of occupancy to the said land.
2. N10, 000.00 (Ten Thousand Naira) general damages for trespass and damage to the Plaintiffs economic crops on the said land, committed by the Defendant.
3. Perpetual injunction restraining the Defendant, his agents, servants and privies from entering into or doing any thing whatsoever on the said land without the prior consent and authority of the Plaintiff.”

Pleadings were filed and exchanged. The case proceeded to hearing. Both parties testified and called one witness each and closed their respective case. The gist of the case goes thus. The Plaintiff/Respondent claimed to have purchased a parcel of land some time in August, 1977 from one Anselem O. Obiesie for the sum of N6, 500.00. He paid deposit of N500.00 and later paid another N3, 000.00 some time in November, 1977. The vendor issued receipts for the two payments made by the Plaintiff which were tendered and admitted as Exhibits B and B1 respectively. At the request of the vendor, the Plaintiff performed the final customary ceremony of “Igbu Ewu Ani” by presenting a goat, drinks and food to the vendor in the presence of witnesses in accordance with the custom of Nnewi people in respect of sale of land. The vendor thereafter showed the boundaries of the land to the Plaintiff who took possession immediately. He later got the land surveyed on plan No. PO/E96/80 dated 2nd January, 1980, (Exhibit E). He applied three months later to the State Government to grant him certificate of statutory Right of occupancy as he had started farming on the said land. He could not balance the purchase price to the vendor who had died by the time he wanted to pay up.

Sometime in 1993 he noticed that the Defendant had trespassed on his land and removed his beacons and had destroyed his farm. The Defendant had constructed a concrete wall fence round the said land. The Plaintiff caused his solicitor to write to the defendant to stop further trespass but the Defendant failed and the trespass continued until 1995 when he built a one room apartment on the land, leading to the institution of the action.

The Defendant’s case was that he bought the same land in dispute from the same Anselem Obiesie sometime in 1978 for the sum of N9, 000.00. He claimed to have put up a wall fence round the said land in 1979 and a bungalow while the vendor was alive and there was no disturbance from anyone. Sometime in 1994, he applied for and was granted certificate of customary Right of occupancy by the Nnewi Local Government. He also has a fish pond on the said parcel of land. He admitted receiving a letter from the Solicitor to the Plaintiff and gave a reply which the Plaintiff said was never received. A document acknowledging receipt of N9, 000.00 from the defendant by the vendor and a copy of the defendant’s solicitor’s letter in reply to Plaintiffs letter were admitted and marked Exhibits J and G respectively. The document by which the defendant was granted customary Right of occupancy by Nnewi Local government was admitted as Exhibit F.

At the end of the trial, the trial judge – M.A. Onyiuke, J in his reserved judgment granted the Plaintiff’s claim with costs against the Defendant.

Dissatisfied with the judgment in favour of the plaintiff, the Defendant filed a Notice of Appeal dated 19th January, 2004 with four Grounds of Appeal. Subsequently, the defendant sequel to an order of this Court, granted on 20/9/06 filed an Amended Notice of Appeal on 22/09/2006 which has eleven (11) Grounds of Appeal.

When this appeal came up for hearing on 21/01/09, Chief G.O Osaigwe of counsel to the appellant referred to the Amended Notice of Appeal dated 20/9/06 but filed on 22/9/06. He also referred to the Appellant’s brief of argument dated 30/4/07 but filed On 4/5/07 and the Appellant’s reply brief of argument to the Respondent’s brief of argument dated 22/4/08 but filed on 30/4/08. He adopted and relied on both briefs and urged the Court to allow the appeal and set aside the judgment of the lower court.

Rev. J.D.C. Onuigbo for the Respondent referred to the Respondent’s brief of argument dated 18/01/08 but filed on 22/01/08. He adopted and relied on the said brief of argument and urged the court to dismiss the appeal.

From the eleven (11) Grounds of Appeal contained in the Amended Notice of Appeal, the Appellant formulated the following four (4) issues for determination of this appeal.

Issues for Determination:

1. Did the Plaintiff discharge the burden of proof on him as to be entitled to the reliefs sought in the statement of claim?
2. Whether the lower court was right on the pleadings and evidence adduced in the matter to hold that the Nnewi North Local Government had no power to grant the Customary Right of occupancy in respect of the land in dispute.
3. Whether from the pleadings filed by the parties and the evidence adduced in court, the defendant was a bonafide purchaser for value of the property without notice of the existing interest of the plaintiff if any.
4. Whether from the facts and circumstances of this case the Plaintiff’s interest in the land supersedes the Defendant’s interest as found by the lower court.

From the grounds of appeal raised by the Appellant, the Respondent also in his brief of argument formulated the following five (5) issues for determination of this appeal.

1. Did the Plaintiff/Respondent successfully purchase the land in dispute from the vendor – Anselem O. Obiesie in 1977, and if he did, did that transaction completely divest the vendor Anselem O. Obiesie of any interest/title in the land in dispute?
2. On the Plaintiff/Respondent purchasing the land in dispute from the vendor – Anselem O. Obiesie in 1977 was be delivered possession of the said land by the vendor and did be exercise sufficient act of ownership and possession thereafter as to constitute the subsequent action of the Respondent on the land in dispute adverse. ?
3. From the pleadings filed by the parties and the evidence adduced in court is the Defendant/Appellant a bonafide purchaser for value of the property without notice of the existing interest of the Plaintiff.
4. Whether from the facts and circumstances of this case the Plaintiff’s interest in the land supersedes the defendant’s interest in the disputed land.
5. Whether the lower Court was right on the pleadings and evidence adduced in the matter to hold that the Nnewi North Local Government had no power to grant the Customary Right of Occupancy in respect of the land in dispute.

As clearly shown in the pleadings and evidence adduced before the trial Court, the main issue in the case is title to a piece or parcel of land. It is also clear that the identity of the land in dispute is not in dispute. The Plaintiff in paragraph 3 of his Statement of Claim averred as follows:

“3. The Land in dispute known as Plot 37, Ikemba Drive, is situating along Court Road at Umuele Umudim, Nnewi, Nnewi North Local Government Area, more particularly delineated and verged red in survey plan No. NLS/AN/1008/95 dated 1st September, 1995 attached to this statement of claim, and filed in Court.

The Plaintiff will at the trial found on all the features, configurations etc on the said plan.”

The defendant’s response to the above averment is contained in paragraph 1 of his Statement of defence as follows:

“1. Paragraphs 1, 2 and 3 of the Statement of Claim are not disputed safe that the defendant has his own survey plain of the land”

Other facts not in dispute or clearly admitted by parties are the fact that the land in dispute belonged to Anselem O. Obiesie.

The defendant had put up a concrete wall fence and a one bedroom bungalow on the land in dispute. The plaintiff caused his Solicitors to write a warning letter to the defendant on his alleged trespass to the land in dispute. Sometime in March, 1980 the Plaintiff applied to the State Government for the grant of a Certificate of Statutory Right of Occupancy on the land in dispute. The Defendant applied for and was granted a Customary Right of Occupancy in 1994 by the Nnewi North Local Government.

It is trite law that averments that are admitted in pleadings need no further proof. As a result the above facts would no longer need to be further proved. See; Dr. Augustine N. Mozie and Ors. Vs. Chike Mbamalu & Ors. (2006)12 SCM (pt 1) 306 at 317, Olubode vs. Oyesina (1977) 5 SC 79, Balogun Vs. Labiran (1988) 3 NWLR (pt 80) 66, Salawu & Anor Vs. Yusuf (2007) to SCM 157.

Now to the issues formulated by the Appellant which I have chosen to reframe or reformulate to determine this appeal.

It is now settled law that a Court not only can, but is entitled to reframe or reformulate issue or issues formulated by a party or parties in an appeal. The reason is for precision and clarity. It is also to narrow down the issue or issues in controversy to lead to a more judicious and proper determination of the appeal. See; Unity Bank Plc & Anor Vs. Edward Bonari (2008) 2 SCM 193, Okuro V. The State (1988) 12 SC 191, Lalunde & Anor V. Bella Lajunfin (1989) 5 Sc 59, Musa Sha Jnr V. Da Ray Kwan & Ors. (2000) 5 SCNJ 101.

The issues therefore reframed or reformulated from the grounds of appeal and issues already distilled by the Appellant to determine this case are as follows:

“(1) Whether on the available evidence the Plaintiff discharged the burden of proof on him to be entitled to the reliefs sought in the Statement of Claim (Grounds 1, 2, 4, 5 and 7 of the Grounds of Appeal).

(2) Whether the lower Court was right on the pleadings and evidence adduced to hold that the Nnewi North Local Government had no power to grant the Customary Right of Occupancy in respect of the land in dispute (Grounds 6, 8, 9, 10 and 11 of the Grounds of Appeal).

It is settled law, that a ground of appeal is the totality of the reasons why the decision complained of by the appellant is considered wrong. In other words, it is settled law that appeals are usually against the ratio decidendi in the judgment on appeal. See; Chief N.P. Ugboaja V. Sodolamu Akintoye – Sowemimo & Ors. (2008) 12 SCM (pt 1) 212, Military Administrator (Ekiti State) & Ors. v. Prince Benjamin Adeniyi Aladeyelu & Ors. (2007) to SCM 55.

Ground 3 of the grounds of appeal does not arise from the decision of the trial Court appealed against. It is therefore invalid. It is clear from the processes filed that no issue was distilled from ground 3 of the Grounds of appeal.

It is settled law that a ground of appeal in respect of which no issue has been formulated is deemed abandoned and shall be liable to be struck out. Sec; Newswatch Communications Ltd. v. Atta (2000) 2 NWLR (Pt 645) 592, Labiyi v. Anretiola (1992) 8 NWLR (pt 258) 139, Benjamin Onwughamba Ezenwa v. Okpara Oka & Ors. (2008) 3 SCM 50 at 57. In the circumstance, ground 3 of the grounds of appeal is deemed abandoned and accordingly struck out.

I shall now take the two issues formulated above seriatim.

Issue 1 is whether on the available evidence the Plaintiff discharged the burden of proof on him to be entitled to the reliefs sought in the Statement of Claim.

As clearly shown in the Plaintiff’s claim, ownership of the parcel of land in dispute is in issue. It has long been settled law that there are five ways in which ownership of land may be proved. Firstly, ownership of land may be proved by traditional evidence. Secondly, by production of documents of title which must be duly authenticated in the sense that their due execution must be proved?

Thirdly, acts of the claimant, as the Plaintiff in this case, claiming the land such as selling, leasing or renting out all or part of the land, or farming on it, or on a portion of it, are also evidence of ownership. The proviso to this way, is that the acts must extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner. See; Ekpo V. Ita (1932) 11 NLR 68. The forth way is acts of long possession and enjoyment of the land. However, under Section 145 (now 146) of the Evidence Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another person proves a good title. See; Da Costa Vs. Ikomi (1968) 1 All NLR 394 at 398. The fifth way of proving ownership is proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, See; D.O. Idundun & Ors. V. Daniel Okumagba (1976) 9 -10 SC 277, (1976) 1 NMLR 200, (2002) 20 WRN 127 at 143-144.

It is instructive to state that the burden and standard of proof of each case depend on the nature of the case as pleaded. See; Godfrey Anukam V. Felix Anukam (2008) 12 SCM (pt 1) 1 at 10.

In the instant case, the Plaintiff pleaded as follows:

“4. The Plaintiff purchased the land in dispute according to Nnewi Custom from Anselem Ohiesie, deceased, of Umuele Umudim, Nnewi at the agreed sum of N6, 500.00 (Six Thousand, Five Hundred Naira). He made an initial payment of N500.00 (Five Hundred Naira) to Anselem O. Obiesie on 25th August, 1977, and a receipt for the same dated 25th August, 1977 and signed by the said Anselem O. Obiesie was issued.

5. On 14th November, 1977 the Plaintiff paid another sum of N4, 000.00 (Four Thousand Naira) to Auselem O. Obiese in the presence of Ononuju O Ojukwu in respect of the land in dispute and a receipt for the same, signed by the said Anselern O. Obiesie was issued. The Plaintiff will at the trial found on these receipts.
6. At the request of the said Anselem O. Obiesie, the Plaintiff performed the final customary ceremony of “Igbu Ewu Ani” by presenting a goat, drinks and food to Anselem O. Obiesie in the presence of witnesses in accordance with the custom of Nnewi people in respect of sales of land. This custom still subsists in Nnewi.
7. As soon as this final ceremony was performed, Anselem. O. Obiesie showed the Plaintiff the boundaries of the said land. The purchase was absolute and not for a term of years. The Plaintiff thereafter engaged the services of a licensed Surveyor who surveyed the land and produced a Plan No. PC/E96/80, dated 2nd January, 1980. The area of the land is approximately 541.703 square meters.
8. The Plaintiff took possession of the said land, planted cassava and maize thereon without let or hindrance from any one including the Defendant. The Plaintiff with the authority of the seller applied to the appropriate authority fur the grant of Certificate of Occupancy which was published in Anambra State Gazette No.8 Vol. 5 of 27th March, 1980. The Plaintiff continued farming on the said land. When the Plaintiff came to pay the balance of N2, 000.00 he discovered that the vendor, Anselem O. Obiesie had died.”

The Plaintiff testified orally in line with the averments in his pleadings above. He also tendered various documents earlier pleaded such as his dispute plan, admitted as Exhibit A, the two Receipts issued by his Vendor Anselem O. Obiesie, admitted as Exhibits B and B1 respectively. The property survey plan No. PO/E96/80 dated 2nd January, 1980 was admitted as Exhibit D while the Government Gazette No.8 of Volume 5 dated 27th March, 1980 was admitted as Exhibit E.

PW2, one Ononiyin Sunday Ojukwu testified and confirmed the story of the Plaintiff. He was a witness to the payment made by the Plaintiff to late Anselem O. Obiesie for the purchase of the land in dispute. He also witnessed the delivery of possession of the land to the Plaintiff by the Vendor who showed the Plaintiff the boundaries of the land. He further confirmed that in accordance with the Custom of Nnewi, the Plaintiff gave the Vendor, one goat, and drinks for the sale of the land.

Under cross examination, the PW2 confirmed that the presentation of the goat by Plaintiff to the Vendor was on 14th November, 1977 when the second installment of the purchase price was made and that was when the Vendor delivered possession to the Plaintiff. He was aware that the defendant had put up the fence and the structure on the land while the Vendor was alive but would not know whether or not the defendant was stopped by the Vendor when he was developing the land in dispute.

In defence however, the defendant pleaded as follows:

“2. Paragraph (sic) 4, 5, 6 and 7 of the statement of claim contain deliberate falsehoods (sic). The late Anselem Obiesie did not sell the said land twice. The land was sold to the defendant in 1978 for the sum of N9, 000.00 (Nine Thousand Naira). This was shown in a conveyance signed by Anselem Obiesie dated 7/3/78.

The deed of Conveyance is pleaded and will be relied upon at the trial.

3. The defendant fenced the land in 1979 and put up a building (bungalow) there while Anselem Obiesie was alive. All these were done without any interference from the Plaintiff.
4. The defendant applied for and was granted Customary Right of Occupancy in 1994. The document carried Plan No. US/4430/AN 319/94. The Certificate of Occupancy is pleaded and will be relied upon at the trial.
5. The defendant also has a fishpond on the premises and has been cultivating the remaining part of the premises since 1978.
6. Paragraph 8 of the statement of claim is not true. The defendant was not informed of any previous application for certificate of occupancy in respect of the said land.

The land ministry could not have proceeded and granted customary right of occupancy in respect of the same piece of land, where there is (sic) an application pending before it.”

It is note worthy that the lower court had found that the Vendor Anselem Obiesie who issued the receipts of payment of purchase price of the land by the Plaintiff acknowledged in Exhibit B1 that with the presentation of goat food and drinks ceremony duly performed by the Plaintiff, the Custom of Nnewi on sale of land had been satisfied. Also, it is stated on the receipt Exhibit B1 that the balance of the purchase price expected from the Plaintiff was N2, 000. 00. The trial Court also found that the defendant did not challenge Exhibits B and B1 at all.

Furthermore, the trial Court also found as established, that “the significance of the performance of “Igbo Ewu Ani” in Nnewi signifies absolute and irrevocable transfer of interest in the land sold.

On this point the learned Appellant’s counsel contended that the Respondent did not discharge the onus on him to establish his title to the land in dispute. He referred to the Plaintiff’s claim of purchase of the land under Nnewi native law and custom from Anselem Obiesie and the receipt of payment issued to the Respondent by the said Vendor. He contended that giving of receipts is not known to native law. He therefore submitted that Exhibits B and B1 are not evidence of sale of the land under Nnewi native law and custom but conceded that it was evidence of acknowledgment of purchase price by Anselem Obiesie though the receipts themselves do not confer title, he concluded. He cited, Buraimob Vs. Karimu (1999) 9 NWLR (pt 618) 310.

Still on this point, learned Appellant’s counsel contended that to transfer an absolute title under customary law, it must be pleaded and proved that the sale was concluded in the presence of witnesses and the names of those witnesses should also be pleaded as well as the fact that they witnessed the actual delivery or handing over of the land to the purchaser. He cited Folarin V. Durojaiye (1988) 1 INWLR (pt 70) 351.

Learned Appellant’s counsel submitted that it is the payment of purchase price coupled with being put in possession that confers on a purchaser of land an equitable title. He contended that the Appellant was in possession of the land at all material times to this case and his possession is that of a bonafide purchaser for value. He contended further that there was no credible evidence that the Plaintiff/Respondent was ever put in possession of the land in dispute by Anselem O. Obiesie or that he has ever been in possession of the land in dispute. He cited, Adeniji V. Onagoruwa & Anor (2000) 1 NWLR (pt 639) 1. He urged the Court to resolve the issue against the Respondent but infavour of the Appellant.

On this issue, the learned Respondent’s counsel referred to the pleadings, oral and documentary evidence adduced by the Respondent and contended that the oral and documentary evidence were not challenged nor contradicted by the Defendant/Appellant. He submitted that evidence which is unchallenged and uncontradicted, if credible, ought to be accepted as true. He cited, Egbunike Vs. ACB (1995) 2 SCNJ 58 at 78. He urged the Court to resolve Issue NO.1 infavour of the Respondent but against the Appellant.

In this case, it is clear that the Respondent as Plaintiff at the lower Court had claimed title to the land in dispute against the Appellant.

The Respondent’s mode of acquisition of the said land was by purchase, followed by the customary procedure in purchasing land in accordance with Nnewi Custom. This is only one of the ways recognized by law by which title to land can be acquired. Perhaps I must state it clear now, that the various ways by which title in land can be acquired should not in any way be confused with the ways in which such acquisition can be proved in Court. The listed ways in which ownership of land may be proved in Idundun & Ors. V. Okumagba & Ors. (Supra) deal with matters of evidence rather than question of substantive law of acquisition of title. Other ways of acquiring title in land include by gift, grant or purchase as in the instant case. Therefore, since the mode of acquisition of title to the land in dispute by the Respondent was by purchase, as rightly submitted by the Appellant’s counsel, all the Respondent was required to prove was payment of the purchase price of the land and delivery of possession of the land to the purchaser by the Vendor in the presence of witnesses. See; Alhaji Karimu Adisa V. Emmanuel Oyinlola & Ors. ACLC Vol 4, page 329 at 365. , (2000)2 SCNQR 1264

It is not in doubt that the Respondent herein pleaded clearly and called credible oral and documentary evidence in support of his averments on the purchase of the land in dispute. Exhibits B and B1 were acknowledgment receipts under the hand of the Vendor whose ownership of the said land was not disputed. In addition, the evidence of the performance of the final customary ceremony of “Igbu Ewu Ani” by presenting a goat, drinks and food to the Vendor was not controverted or contradicted by the Appellant.

It is note worthy that the trial Court also found at page 51 of the record of appeal in his judgment that the sale and delivery of possession of the land indispute to the Respondent by the Vendor was witnessed by Ononiyu O. Ojukwu, Raphael Ezimora, and Bernard Okonkwo.

There is therefore no doubt that sale of the land in dispute by Anselem O. Obiesie, the Vendor to the Respondent was concluded on the 14th November, 1977 after the second payment and Exhibit B1 were made and the custom of the Nnewi people was accordingly performed.

It follows from the aforesaid that any subsequent sale or any other transaction on the said land by the Vendor goes to no effect. In other words, as at sometime in 1978 when the Appellant claimed he bought the land in dispute from the same Vendor, he had bought nothing, as Anselem O. Obiesie then no longer had any title to the land in dispute having validly passed his title to the respondent. The alleged or purported purchase by the Appellant of the land in dispute is to say the least, null, void and of no effect. As the saying goes, no one can sell or give what he does not have. With the available evidence, I am of the view that the Respondent discharged the burden on him to prove his title to the land in dispute. The Respondent had acquired title to the land in dispute by purchase and this was proved with the production of Exhibits B and B1 and the performance of Nnewi customary rites on sale of land. In the circumstance, Issue one is resolved against the Appellant but infavour of the Respondent.

This leads me to the second issue formulated above on whether the lower court was right to have held that the Nnewi North Local Government had no power to grant customary Right of Occupancy in respect of the land in dispute.

Ordinarily, having held that the Appellant did not purchase any land as he claimed in 1978, it may not be necessary any longer to consider the validity of the purported certificate of customary Right of Occupancy being held by the Appellant. But that issue having been raised by the Appellant, for whatever it is worth it shall be consider.

The Appellant had averred in his statement of defence, paragraph 4, in particular, on page 10 of the record of Appeal that he applied for and was granted Customary Right of Occupancy in 1994. In his oral testimony, he tendered the Certificate of the said Customary Right of Occupancy granted by the Nnewi North Local Government to him. The document was admitted as Exhibit F. In its judgment, the lower Court had held as follows:

“Exhibit F besides cannot legally be issued by Chairman Nnewi local Government, the land lying within Urban Area. Only the Governor or his nominated agent can issue the Statutory Right of Occupancy. The legal position of Exhibit F is that it stands on nothing – the defendant having purchased nothing – a complete vacuum.”

On this issue, the Appellant had argued that the issue whether or not the land in dispute is in urban area of Nnewi or within the area designated as Nnewi Urban was not made an issue by the Respondent in his pleadings. The learned Appellant is counsel also contended that the Respondent did not file a reply to the statement of defence to have raised issue about the land in dispute being in an urban area of Nnewi.

He therefore urged the Court to set aside the findings of the lower Court that the land in dispute is in the Nnewi Urban area thus subject of statutory Right of Occupancy by the Governor of the State or any person or body so designated.

However, assuming but without conceding that he was wrong, the learned Appellant’s counsel submitted that there was no credible evidence before the trial Court to show that the land in dispute is within the area designated as Nnewi Urban under the designation of Urban Area Order, 1978. He urged the Court to hold that there was no credible evidence to establish that the land in dispute was within the area designated as Nnewi Urban in 1994.

The Respondent had pleaded in paragraph 3 of his statement of claim at page 4 of the record of Appeal as follows:

“3. The land in dispute known as Plot 37, Ikemba Drive, is situating along Court Road at Unuele Umudim, Nnewi, Nnewi North Local Government Area, more particularly delineated and verged red in Survey Plan No. NLS/AN 1008/95 dated 1st September, 1995 attached to this statement of claim and filed in Court. The Plaintiff will at the trial found on all the features, configurations etc on the said Plan.”

As earlier stated in this judgment, the Appellant clearly in his Statement of Defence admitted in his paragraph 1 that the above is a statement of fact not in dispute between the parties.

It is trite that facts are pleading without life. They become meaningful and come to life with evidence adduced during proceedings to establish them. In the instant case, the Respondent testified and called one other witness to prove his case. On the above fact he testified as follows:

“I know the land in dispute. It situates in Nnewi Urban Area less than 2 Kilometre (sic) from Nkwo Post Office. It is known as Plot 37 Ikemba Drive formerly known as Old Eme Court Road.”

The dispute plan referred to in the pleadings was produced, tendered by the Respondent and was admitted as Exhibit A.

PW2, one Ononiyu Sunday Ojukwu who testified for the Plaintiff/respondent stated inter-alia, as follows:

“I know the land in dispute in this case. It situates at Plot 37 Ikemba Drive Nnewi (Old Court Road Nnewi). I know where the Post Office Nnewi is located. The land in dispute is about kilometere from Post Office or about 2 Kilometers’ from Erne Customary Court, Nnewi. From the High Court the land in dispute is about 1/2(half) Kilometers.”

From the above averments and oral evidence, it clearly cannot be said that the location of the land in dispute was never put in issue at the lower Court.

There is no doubt that the Nnewi North Local Government, Nnewi had granted a certificate of Customary Right of Occupancy of the land in dispute. That is Exhibit F. But the issue at stake now is whether the certificate was validly and properly issued. In other words, whether the said Local Government had the legal right to issue a Certificate on the said land in dispute, which is in a designated urban area.

Generally, it shall be lawful for a Local Government in respect of land not in an urban area to grant customary rights of occupancy to any person or organization for use of land in the Local Government Areas for agricultural, residential and other purposes. See; Section 6(1) (a) Land Use Act, 1978.

On what area of State land shall be designated as Urban and non urban areas, the Land Use Act, 1978 provides as follows:

“S.3 Subject to such general conditions as may be specified in that behalf by the National Council of State, the (Military) Governor may for the purposes of this Act by order published in the State Gazzette designate the part of the area of the territory of the State constituting land in an Urban area.” (Bracket supplied)

Therefore, from the above provisions of the Land Use Act, 1978, any area of land in a State which has not been designated as Urban area by the Governor ordinarily falls within areas considered to be non Urban area, which is within the competence of the Local Government to grant Customary right of Occupancy to an applicant for such right.

In the instant case, the Appellant claimed to have applied for and was granted customary right of occupancy in respect of the Land in dispute by the Nnewi North Local Government, sometime in 1994. As it is note worthy that since 1981, the Governor of Anambra State of Nigeria in exercise of the powers conferred by Section 3 of the Land Use Act, and of all other powers enabling him in that behalf had made an order by which certain Towns in Anambra State were designated as Urban Areas. The said Order as it concerns us in this case reads thus:

“Nnewi – All that parcel of land at Nnewi in the Nnewi Local Government Area of Anambra State of Nigeria within a circle (If three kilometers radius whose centre is the point of inter section of Ozubulu, Alor and Nnobi Roads, the geographical co-ordinates of which centre are approximately 06 Decree 01′ 00′ North Latitude and 06 Decree 55’00” East Longitude.”

See; Supplement to Anambra State of Nigeria Gazette No. 15 Vol. 6 dated 2st May, 1981.

There is no doubt that by the above designation since May, 1981, the whole of Nnewi Local Government of Anambra State had been designated as urban Area. In which ease the land in dispute is in an urban area of Anambra State to which Section 9(1) of the Land Use Act, 1978 applies inrespect of Statutory Right of Occupancy. It is therefore very wrong and fraudulent, to say the least, for the Appellant to have applied for Customary Right of Occupancy on the land in dispute which ordinarily falls within Urban area of the State. In my view, it necessarily follows that the Appellant is holding nothing. At best, he holds a worthless and useless document as the Nnewi North Local Government that purportedly granted him a customary right of occupancy had no such right to grant on the land in dispute.

Perhaps, I must state it clearly that the appellant’s counsel was wrong, embarrassing when he submitted that the designation of Urban Areas Order, 1978 remained in force until 1st day of February, 1995 when it was repealed by Designation of Urban Areas Order, 1995. It was the Designation of the Urban Areas Order 1995 published as supplement to Anambra State of Nigeria Gazette NO.7 Vol. 5 dated 6th July, 1995 that designated the entire Nnewi town as Urban area with effect from the 1st day of February, 1995.” If the learned counsel had been diligent enough and had conducted his research thoroughly on this case, he would not have made such a misleading statement on the status of the law on the matter at hand. The said “Designation of Urban Areas Order, 1978” which counsel submitted remained in force until 1995 was revoked as A.S.L.N. No. 24 of 1978 when the A.S.L.N. No.7 of 1981 came into force.

Assuming without holding that the Appellant bad a right to be on the land in dispute, be would have been required to apply to the Governor of Anambra State for him to issue the Applicant a certificate of statutory Right of Occupancy, but not a Customary Right of Occupancy from Nnewi Local Government.

Although Certificate of Occupancy is not defined in the Land Use Act, but it is clear that it is expected to serve the same purpose which was served by a conveyance prior to the enactment of the Act.

In respect of Statutory Right of Occupancy to be granted by the Governor, Section 9(1) of the Act provides, thus:

“S.9 (1) it shall be lawful for the Military Governor-

(a) When granting a statutory right of occupancy to any person, or

(b) When any person is in occupation of land under a customary right of occupancy and he applies in the prescribed manner; or

(c) When any person is entitled to a statutory right of occupancy, to issue a certificate under his hand in evidence of such right of occupancy.”

With the combined effect of Sections 1, 34(3), 34(9) and 36(3) of the Land Use Act, 1978, the Governor is required to be satisfied that the Applicant for a certificate of occupancy is indeed entitled to a right of occupancy in the hind before issuing a certificate to him in evidence of that right.

In the instant case, it is clear from the findings of the trial Court and holdings on the available evidence that the Appellant was a trespasser on the land in dispute not having acquired any right to be on the land. It follows therefore that whatever customary right of occupancy was purported to have been granted to him by the Nnewi North Local Government was granted in error. He is simply not entitled to any such right to the land in dispute.

In the circumstance, it is clear that the Nnewi North Local Government had no power to grant a right of occupancy to the Appellant on the land in dispute and I so hold. Accordingly the second issue is resolved against the Appellant but in favour of the Respondent.

My Lords, before J conclude this judgment, it is important to consider what happens to the development the Appellant claimed to have carried out on the land in dispute. In other words, what is the legal implication of development carried out on a parcel of land which belongs to yet another person.

The Appellant bad averred that he fenced the land in dispute in 1979 and put up a building (bungalow) thereon. He also had a fishpond on the said land. It is already settled law that if a person expends money in developing land that does not belong to him, be has himself to blame. The development no matter how massive would not preclude the rightful owner of the land from alienating the land together with the building on it. The principle quic quid plantatur solo, solo cedit applies, that once the Plaintiff is adjudged to be the owner of the land, the land together with what is on it automatically becomes his. In other words, the maxim means whatever is affixed to the soil belongs to it, That is, whoever owns the land is believed to own whatever is affixed to the soil of the land. See; Blacks Law Dictionary, Eight Edition, page 1750, Ekpan V. Chief Uyo (1986) 3 NWLR (pt 26) 63 at 73, (1986) 5 SC 29, Onuwage V. Ogbeide (1991) 3 NWLR (pt 178) 165. In NEPA V. Mudasiru Amusa & Anor (1976) 12 SC 99 at 114 the Supreme Court, per Fatayi-Williams states thus:

“Whatever is affixed to the soil becomes, in contemplation of law, a part of it and is subjected to the same rights of property as the soil itself. If a man builds on his own land with the materials of another, the owner of the soil becomes in law the owner also of the building. Land includes building.”

See also; Isaac Gaji & Ors. V. Emmanuel D. Paye (2003) 30 WRN 146, (2003) 8 NWLR (pt 823) 583, (2003) FWLR (pt 163) 1, (2003) 7 SCM 55 at 69. Kuponiyi V. Philips (1996) 1 NWLR (pt 427) 671 at 699.

The two issues formulated having been resolved against the Appellant but in favour of the Respondent; I hold that this appeal fails for lacking in merit. Accordingly, it is hereby dismissed.

In the circumstance, the judgment of the Hon. Justice M.A. Onyiuke in Suit No. HN/106/95 delivered on 23rd day of October, 2003 is hereby affirmed.

I make no order as to costs.

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Other Citations: (2009)LCN/3155(CA)