S. O. Adole Vs Boniface B. Gwar (2008)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This is an appeal against the judgment of the Court of Appeal Jos, (per Obadina, Mangaji and Nzeako, (JCA) delivered on 14th May 2002 in Appeal No.CA/J/297/99 wherein they entered judgment for the respondent as appellant, allowed the appeal and the judgment of Ogbole, J. of the High Court of Benue State in Suit No.MHC/219/94 dated 28/6/99 set aside. Specifically, the declaration that the respondent (now appellant) was the title holder of the land in dispute and the injunction granted restraining the appellant/respondent as well as the general damages awarded are each set aside dismissed the counterclaim and cost of N5,000 awarded in favour of the appellant/respondent.

The appellant’s statement of claim (then as plaintiff at the trial court) is on pages 4-6 of the record. The respondent’s (then defendant) further amended statement of defence is on pages 77 to 83 of the record. The appellant’s reply to the statement of defence is on pages 56 to 59 of the record. The evidence of the appellant and that of his witnesses is on pages 115 to 130 of the record.

The respondent, as appellant’s brief of argument is on pages 191 to 207 of the record. The appellant, as respondent’s brief of Argument, is on pages 208 to 256 of the record. The judgment of the Court of Appeal leading to this appeal is on pages 260 to 292. Being dissatisfied with the judgment of the Court of Appeal, the appellant on 16/7/2002 filed a Notice and grounds of Appeal containing (4) grounds.

At the trial Court, the Court admitted fifteen exhibits prominent among which exhibit 2, is Certificate of Occupancy NO.BNA 5131 in respect of a piece of land in the Makurdi Urban Area which is the subject of this appeal.

The appellant distilled four issues from his grounds of appeal which the Respondent adopted for the determination in this appeal, to wit:

a) Were the learned Justices right in the circumstance of this case in holding that there was no evidence led to show that the land in dispute is within Greater Makurdi Urban Area. Or put in another way, did the plaintiff (appellant) on the evidence produced by him successfully establish that the land in dispute is situated within the Makurdi Urban Area, (Based on ground 1 of the grounds of appeal),

b) Whether the power conferred on the Governor under section 5(2) of the Land Use Act, 1978 presupposes prior strict compliance with Section 28 of the Act where there exist Title holders to the land affected (Based on ground 2 of the Grounds of Appeal).

c) Whether or not the Statutory right of occupancy issued to the appellant was validly granted and court therefore extinguish the Respondent’s title as a deemed title holder considering section 5 sub-section 2 and 34 sub-sections 5 and 6 of the Land Use Act, 1978 (Based on ground 3 of the grounds of appeal).

d) Whether or not the respondent, now appellant proved his title to the piece of land in dispute by the production of a document of title (Certificate of Occupancy No. BNA 5131) referred to as Exhibit 2 from the record and or, whether the costs of N5,000 awarded was not excessive.

(Based on ground 4 of the grounds of appeal).

The facts of the case briefly put are as follows:-

The appellant, as plaintiff in the High Court of Benue State before Ogbole, J. claimed that the Respondent as defendant trespassed into his piece of land. In consequence, he sought a declaration (declaratory) judgment that respondent as defendant trespassed into his piece of land along David Mark Bye Pass, Makurdi. He in addition claimed aggravated damages and perpetual injunction restraining the Respondent, his servants or agents from entering upon the said property or doing any other acts thereon incompatible and inconsistent with the Respondent’s title and ownership of the said property. The defendant for his part, filed a counterclaim in his amended statement of defence with one relief that he is a deemed holder of a Certificate of Occupancy in respect of the land in dispute.

Pleadings were exchanged and witnesses were called by the two parties at the hearing in the High Court

In his judgment, the learned trial Judge dismissed the Respondent’s counterclaim and awarded title to the Appellant with N15,000 damages and perpetual injunction restraining the Respondent, his servants or agents from entering upon the said property. Dissatisfied with the decision of the trial court, the Respondent appealed to the Court of Appeal, Jos, which found as a fact that as far as the issuance of the Certificate of Occupancy NO.BNA 5131 was concerned, it was not made in error but that it was genuinely, made. Yet it went on to hold that there was no evidence before the trial court proving the location of the land in issue in order to arrive at a decision that falls within the area designated as urban under the 1984 Order and therefore failed to prove his case. In the main, the judgment of Ogbole J, in suit No. MHC/219/94, dated 28/6/99 was set aside on 14/5/2002 and an injunction restraining the Respondent/Appellant from entering the piece of land with N5, 000 costs against the Respondent/Appellant adding that the Certificate of Occupancy NO.BNA 5131 issued to the Appellant was invalid.

The appellant being dissatisfied with the judgment of the Court of Appeal has now appealed to this Court upon four (4) grounds as in the Notice of Appeal dated 15/7/2002 and filed on 16/7/2002 as hereinbefore stated.

I will now proceed to consider below the issues serially as the (appellant) has done.

ISSUE 1:

The Benue State Land Use (Designation of Capital as Greater Makurdi) Order, 1984 declared Makurdi an urban area and all areas specified in the Schedule to the Order within 16 kilometres radius. Section 5(1) (a) of the Land Use Act empowers the governor of a State to grant statutory right of occupancy (Certificate of Occupancy) to any person whether or not in an urban area. The possession of title document over the disputed plot by the Appellant was not conclusive that the plot in issue was within the 16 kilometre radius constituting greater Makurdi nor within the Makurdi urban area as not all lands within the area called Makurdi are urban lands. There was therefore, the need for the Appellant to prove that the Plot in issue was within the Makurdi Urban Area.

By all necessary implications therefore, they, who wanted the court to hold that the disputed plot of land was within the Makurdi Urban Area, were required by law to plead the fact and prove the same at the hearing of their case. (See Order 25 Rule 4 of the Benue State High Court (Civil Procedure Rules), (Edict, 1988). See also Section 135(1) of the Evidence Act). Nowhere in his statement of claim (see pages 4, 5 and 6 of the record) did he plead the fact to enable him give evidence on it at the trial. Rather, the appellant pleaded and tendered Certificate of Occupancy NO.BNA 5131 (exhibit 2) to prove only the fact that he is the rightful owner of the disputed plot, but not its situ. (See paragraphs 3 and 4 of the plaintiff/appellant’s Statement of Claim on page 117 lines 13 and 14 of the record to the effect that “I told him that that area is within urban area traditional title notwithstanding” did not only go to nothing, it was equally clearly bereft of the facts and details which would have led the trial court to believe and thereby concluded that the disputed plot was within Makurdi Urban Area.

From the foregoing, I hold the view that there was no evidence before the court below proving the location of the land in issue which would have enabled the court to arrive at the decision that falls within the area designated as urban under the 1984 Order. The learned Justices of the Court of Appeal were therefore right when having taken judicial notice of Gazette No.21 Vol.10 of 23rd May, 1985 which was published in the 1984 Order (See page 184 line 23 of the record), proceeded to hold that they did not find as such. This court was accordingly urged to affirm the Court of Appeal’s decision, and not to disturb it even if this court finds that that court (court below) is in error in holding that there was no evidence before the trial court proving the location of the land in issue in order to arrive at a decision as the court did namely, that the land falls within the area designated as urban under the 1984 Order. This Court was urged to so hold because the judgment of the Court below was neither founded on this finding and conclusion nor on the fact that the Governor of Benue State did not first revoke the Respondent’s deemed statutory right of occupancy over the plot in issue before issuing exhibit 2 (Certificate of Occupancy No. BNA 5131) over the same plot, to the appellant.

Thus, it was further argued, that even if the Justices of the court below had found proved that the disputed plot was situated in an urban area, this finding would have had no effect whatsoever on the court’s subsequent findings on issue No.1 and the decision reached.

This court has held in several cases that it is not every error of the Lower Court that will result in an appeal being allowed but only such errors that occasion grave miscarriage of justice. See Oseni v. Dowodu (1994) 4 SCNJ (PT.2) 197 at 209; Anla v. Ayanbola (1977) 4 SC 63 and Alli v. Alesinloye (2000) 4 SCNJ 264 at 297. I am of the view that the error of the Court below (if any) not being one that has occasioned a miscarriage of justice should not constitute the round for setting aside the judgment of the court below. I accordingly decline to set aside the decision of the court.

ISSUE 2:

This issue raises the question whether in the exercise of his power under Section 5(2) of the Land Use Act, the Governor must first comply with section 28 of the Act where there exist two title holders to the same land. The two types of rights of Occupancy recognisable in law are (1) Statutory Right of Occupancy granted by the Governor under Section 5(1) (a) of the Act.

(2) The Statutory Right of Occupancy deemed to be granted by the Governor pursuant to Section 34(2) of the Act. It is trite that a deemed grant comes into existence automatically by the operation of law and the grantee acquires a vested right just as an actual grantee of a right of occupancy. See – 1. Savannah Bank (Nig) Ltd v. Ajilo(2001) FWLR (PT.75) 513; 2. Sunmonu Olohunde & Anor v. Prof S. K Adeyoju (2000) 6 SCNJ 470 at 505 per Uwaifo, J.S.C.

It is not in doubt that under Section 5(1) of the Land Use Act, it shall be lawful for the Governor to grant statutory right of occupancy to any person in respect of land, whether or not in an urban area. Under Section 5(2) of the Act, when such grant is made, all existing rights to the use and occupation of the land so granted shall be extinguished.

Be it noted that the rights that are automatically extinguished following the exercise of the powers of the Governor under Section 5(2) of the Act are “existing rights to the use and occupation of the land” such as the rights of licences, mortgages etc. but not vested rights such as statutory right of occupancy actually or deemed granted which are recognised by the Act itself. See Olohunde v. Adeyoju (supra). Where therefore there exist a prior grant, section 5(2) of the Act cannot be applied to defeat it, as the Section cannot in that case be swallowed wholesale. See Nigeria Engineering Works Ltd v. Denap Ltd & Anor (2001) 12 SCNJ 251 at 275 PER Kalgo, J.S.C.

The Section (i.e. Section 5(2) of the Act) will only be able to defeat the existing vested right if such right is revoked under Section 28 of the Act for any of the reasons stated there under. Otherwise, there will be in existence at the same time two valid rights of occupancy granted to different persons in respect of the same parcel of land, as was the case in the matter at hand. In such a case, it was contended, the latter right of occupancy is liable to be invalidated as the court below rightly did in this case.

In the case in hand, the appellant himself admitted before the Court below that the respondent’s (the defendant at the trial court) father settled on the disputed land. At page 255 paragraph 1 of the record he stated thus:

“I am not in doubt that the defendant’s (respondent in this appeal) 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 this vast land. There is no evidence to the contrary ……..”

In the face of the admission and the evidence on the record indicating that the Respondent had developed the land before the coming into effect of the Land Use Act (see pages 146-147 of the record), by the operation of Section 34 of the Act the Respondent became or was deemed to hold a statutory right of occupancy over the plot of land The court below therefore properly held.

A deemed statutory right of occupancy, being a vested right recognised by the Act itself, cannot be extinguished under section 5(2) of the Land Use Act by the issue of a statutory right of occupancy over the same plot. The right can only be revoked under Section 28 of the Act. The only option open to the Governor of Benue State was to have first revoked the deemed right of occupancy of the Respondent before granting Exhibit 2 to the Appellant over the same plot of land. See Olohunde v. Adeyoju (supra). 2. Nigeria Engineering Works v. Denap (supra).

Having failed to do so, the court below also properly invalidated Certificate of Occupancy No.BNA 5131 issued without first revoking the pre-existing right of occupancy of the Respondent. I so hold.

In the face of the above, it is clear that the interpretation of the learned Justices of the Court below that Section 5(2) of the Land Use Act presupposes strict prior compliance with Section 28 of the Act where there exists an earlier grant is the correct interpretation. What their Lordships did at the court below was only to re-echo or apply the case cited above. It is certainly not the intention of the law makers, in my view, that the Land Use Act be used to divest citizens of their traditional titles to land. Rather, the Act is meant to strengthen ownership that derives existence through traditional history, which is what the court below sought to enforce through its judgment. I therefore endorse the submission that this court should not disturb the judgment of the court below, not even for the reason that the respondent has excess land in Makurdi or that the court below did not make a finding on the issue. As no appeal has been lodged on this issue, no issue has therefore been consequently formulated for the determination of this Court. Afortiori, I affirm the judgment of the court below on this point.

ISSUE 3:

Issue NO.3 raises two questions for determination, to wit:

(a) Whether or not the right of occupancy evidenced by Certificate of Occupancy BNA 5131 granted to the Appellant was validly granted

(b) Whether the Right of Occupancy could extinguish the title of the Respondent as a deemed holder.

Question (a):

Section 34 of the Land Use Act, as it were, recognizes the title of persons who were on the land before 1978 when the Act came into being. If the Land was developed by such persons, they are deemed holders of statutory rights of occupancies issued by the Governor by virtue of Section 34(2) and (3) of the Act. The right comes into existence automatically by the operation of law.

In the case in hand, it is in evidence and the court below so found that the land in issue was held by the Respondent and was indeed developed by him before the coming into existence of the Land Use Act in 1978. It is also in evidence that as far back as 1983 the land was the subject of the application for a Certificate of Occupancy on file No. BN 10617 at the instance of the Respondent (See page 1 of 5 exhibit 1). By the operation of Section 34 of the Act the respondent who had, the land vested in him was deemed to have continued to hold the same as if he was the holder of a statutory right of occupancy issued by the governor under Section 5 of the Act. A deemed right of occupancy is also a vested right recognised by the Act itself. Consequently, it must first have to be properly revoked or nullified before another statutory right of occupancy can be issued in its place. See Olohunde v. Adeyoju (supra) per Uwaifo, JSC at 505. The right will be properly revoked if and only if the revocation is done under Section 28 of the Land Use Act, for any of the reasons stated therein. For whatever reason the right is being revoked, the revocation shall be signified by notice duly issued and shall become valid when received by the person with such vested right. See Sections 28(6) and (7) of the Land Use Act.

In the case in hand, in the exercise of his powers under Section 5(1) of the Land Use Act (supra), in October 1993, the Governor of Benue State granted exhibit 2 (Certificate of Occupancy No.5131) to the appellant over the land in issue over which the respondent already had title and is deemed to be granted a statutory right of occupancy by the same Governor. There is no evidence that the government ever acquired this land. There is equally no evidence that the Governor revoked the respondent’s deemed statutory right of occupancy under Section 28 of the Land Use Act before he (the Governor) made this latter grant vide Section 2 to the appellant.

The respondent’s Statutory Right of Occupancy over the appellant over the same land. There were therefore in existence two valid rights of occupancy over the disputed land against the spirit of the law.

It is trite that where there exist at the same time two valid rights of occupancy to different persons in respect of the same land as in this case, one must of necessity, be valid. The invalid one must be the latter right granted without first revoking the former one under Section 28 of the Act. See Nigeria Engineering Works v. Denap (supra) per Ogundare, JSC at 292. A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only 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 Mohamoud J.Lababedi v. Lagos Metal Industries (Nig) Ltd (1973) NSCC.1at 6.

Consequently, where it is proved, as in this case, that another person other than the grantee of a certificate of occupancy had a better title to the land, the court may have no option but to set aside the grant or discountenance it as invalid, defective or spurious as the case may be. See Dzungwe v. Gbishe & Another (1985) 2 NWLR (PT, 8) 528 at 540. 2. Ogunleye v. Oni (1990) 2 NWLR (PT.135) 735.

Considering the circumstances under which the appellant was granted exhibit 2 over the land in issue, the only option open to the trial court was to have found as submitted above and the invalidate the grant to the appellant evidenced by exhibit 2. Having failed to do so, the court below, therefore, properly held that exhibit 2 was invalidly granted and accordingly properly invalidated the same. The first question raised by issue 3 whether the statutory right of occupancy (exhibit 2) was invalidly granted the appellant is therefore resolved in the negative Issue 3(b) raises the question whether the right of occupancy granted the appellant could extinguish the title of the respondent as a deemed holder.

It has been submitted in paragraph 5.03 and 6.01 hereof that the respondent is deemed holder of a statutory right of occupancy over the land in issue, issued by the Governor by virtue of Section 34(2) and (3) of the Land Use Act, having had title to the land and also developed the same before 1978 when the Act came into force.

Issue 3 formulated by the appellant’s counsel itself draws the same conclusion.

Thus, being a vested right recognised by the Act itself, the deemed right of occupancy of the respondent cannot be likely taken away from him, and worst of all, simply by the grant of another right of occupancy over the same land to the appellant by the Governor as was done in this case. Be it noted that it has long been settled by this court that one right of occupancy cannot just on its face extinguish another. See Nigeria Engineering Works v. Denap. (supra) per Kutigi, JSC, at 277. Thus, the statutory right of occupancy granted the appellant was incapable of and infact did not extinguish the respondent’s deemed statutory right of occupancy over the land. The provisions of Sections 2 and 5 of the Act are not applied, in my respectful view, to defeat vested rights. Rather, they are only applied to defeat existing rights to the use and occupation of the land such as the right of a licensee, a mortgagee etc.

Under the law, the only recognised manner of extinguishing a vested right is by revoking the same for any of the following reasons:

(a) For overriding public interest.

(b) For public purposes.

(c) For breach of the provisions imposed by Section 10 of the Land Use Act.

(d) For breach of any terms envisaged by Section 8 of the Act.

(e) . For failure to comply with the requirements specified in Section 9(3) of the Act. (See Section

28 (ibid), See also Olohunde v. Adeyoju (supra).

Even then, under Section 28(6) and (7) of the Act, notice of the revocation must be given to the holder of a vested right before such right can be revoked and the service of the notice must be in accordance with the provisions of Section 44 of the Act. It is only where such proper and adequate notice was given to the holder as stated above that his right of occupancy shall be extinguished on receipt of such notice

In this case, no such notice was issued and served on the respondent before the appellant was subsequently granted the statutory right of occupancy evidenced by exhibit 2. exhibit 2 did not therefore extinguish the deemed statutory right of occupancy of the Respondent. Issue 3(b) is also resolved in the negative.

The sum total of all I have been saying is that exhibit 2 did not therefore extinguish the deemed statutory right of occupancy of the respondent. Issue 3(b) is also accordingly resolved in the negative. By the same token, I hold that their Lordships at the court below were right in their findings on issue 3 and their consequent judgment to decline to set aside the judgment of the court below.

ISSUE 4

I adopt my consideration of issue 3 above.

As to whether or not the appellant as plaintiff proved title to the plot of land in issue by the production of Exhibit 2, I am in agreement with the respondent’s submission that the appellant did not prove his root of title. This is because, this court has held repeatedly that once a party pleads and traces his root of title to a particular source and the title is challenged, to succeed, the party must not only establish his title to the land in issue, he must also satisfy the court as to the title of the source from whom he claims. See Alli v. Alesinloye (2000) 4 SCJN 264 at 282-283.

Where a plaintiff, as in this case fails to prove the base upon which he founded his title, the claim will fail. See Primate v. Adejobi Case (1978) 3 SC.65; Odofin v. Ayoola (1984) 11 SC 42; Mogaji v. Cadbury (1985) 2 NWLR 393 ratio 9 at 395 and 430; Ajani v. Ladepo (1986) 3 NWLR (Pt.28) 276 following Ekpo v. Ita 11 NLR.68. In other words where, as in the instant case, the respondent as the defendant/counter claimant challenged the appellant’s title (exhibit 2) and it was the case of the respondent that he is not only a holder of a statutory right of occupancy deemed to be granted by the Governor but also that even by traditional history and long possession, put his title in issue. See pages 146 – 148 of the record). His title having been thus challenged, it was incumbent on the Appellant as Plaintiff to have proved the following:

(a) The validity of Exhibit 2, his root of title.

(b) That he has a better title as compared to the respondent as defendant.

As regards the validity of exhibit 2, it is clearly invalid, the same having been issued to the appellant while the respondent’s prior title was still valid and subsisting. The submissions in paragraphs 5 and 6 are reiterated. I am therefore in agreement with the Respondent’s further argument that the appellant’s title having failed to pass the acid test of the law was accordingly declared invalid by the court below. He therefore failed to prove title to the land in Issue.

As to whether the appellant has a better title as compared to the respondent, it is trite that where there are two claimants to a parcel of land, declaration of title is made in favour of the party that proves better title. From the evidence adduced and the circumstances of the case in hand, I hold the view that the respondent proved a better title to the land in issue. He pleaded and proved that he is not only a holder of a statutory right of occupancy under Section 34 of the Land Use Act, but also that even by traditional history and long possession, he has a better title to the land (see pages 145 -158 of the record). The superior title of the respondent was admitted by the appellant through his counsel at the court below when he said in his brief of argument to the court that:

“There is ample evidence that the defendant had prior right over parcels (sic) Land in Makurdi, which is an Urban Area, before the coming into effect of the Land Use Act in 1978. I am not in doubt that the defendant’s father 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 pages 224 and 225 of the record.”

Since as earlier pointed out, title can only be declared in favour of a person whose root is better, on the facts of this case, exhibit 2 tendered by the Appellant did not accord him a better right to the land he claimed over and above the Respondent. Issue 4 is also resolved in the negative and I so hold.

In the result, this appeal fails and it is accordingly dismissed with N50, 000 costs to the respondent.

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SC.302/2002