This is an appeal against the judgement of the Court of Appeal, Jos division delivered on 12th day of May, 2010 wherein the Court f Appeal, herein referred to as ‘’the court below’’, affirmed the decision the Boron state High Court, hereinafter called ‘’the trial court’’ delivered on 26th September, 2008.
The appellant as plaintiff before the trial court had claimed as follows: 1- A declaration that judgement in Suit No. M/132/96 delivered on 5/4/2006 is nullity having been obtained by fraud; 2-A declaration that the plaintiff is the title holder of the land covered by Certificate of Occupancy No. BO/ [12336; 3- An Order directing the defendant to give vacant [possession to the plaintiff forthwith; 4-An Order restraining the defendant, his servants, agents, assigns or any persons whatsoever from trespassing or interesting with the land covered by Certificate of Occupancy No. No. BO/ [12336; 5- Damages from trespass to be assessed by the court; 6 – Cost of the suit.
Before I proceed further in this judgement, it is interesting to note that the respondent herein and one Mohammed Ali had been parties in Suit No. M/187/1996 over the same parcel of land – the land in dispute in the instant. The respondent had earlier sued the said Mohammed Ali who had entered and claimed the land in dispute as his own on the ground that he had purchased from the same appellant who surrendered to him, the original title document to wit; Certificate of Occupancy No. No. BO/ [12336 purportedly granted and issued to the appellant by the Borno state government.
The said action in Suit No. M/187/96 was heard and decided against the said Mohammed Ali, who then laid claim to the land in dispute, and he appealed. It was during the pendency of his appeal at the Court below in the appeal No. CA/J/17/2004 that the instant appellant who had passed his title to the said Mohammed Ali, instituted the action, at the Borno state High Court, which culminated into the instant appeal.
At the conclusion of the trial before the Borno state High Court, the appellant’s claims were dismissed. The Certificate of Occupancy- Exhibit C, held by the appellant was held to be void as there was in existence, a deemed right of occupancy over the same land in favour of the defendant, instant respondent.
Aggrieved, the appellant an appeal to the court below and the said appeal was dismissed. The judgement of the trial court was accordingly affirmed with cost awarded against the appellant but in favour of the respondent.
Further aggrieved, the appellant has appealed to this court on seven grounds of appeal filed on 8/7/2011. Pursuant to the Rules of the court, upon service of the record of appeal, parties filed and served and exchanged briefs of arguments. Appellant’s brief of arguments which was filed on 21/1/2012 was deemed properly filed and served on 11/01/2017; whiled the respondent’s brief of argument was filed on 22/03/2017 within time. The appellant subsequently filed a reply brief of argument to the respondent’s brief of argument on 26/04/2017.
On 6th of February, 2018 when this matter came upon for hearing, Mr Out of counsel, leading other counsel for the appellant, identified appellant’s main brief and reply brief of argument to urge the court to allow the appeal , set aside the concurrent decision of the lower court and enter judgement for the appellant in terms of his claims.
Appellant’s issues for determination
1- Whether or not their lordships of the lower court were right when they relied on unpleaded and unproved facts to hold that the respondent has proved that he bought the land in dispute since 1977 and traced his root of title to four generations of vendors
2- Whether in the circumstances of this case, especially considering that the respondent failed to tender the purchase receipt to prove that he bought the land in 1977 or any document to show the size(s) and location of the land he bought and there being no evidence of any development on the land by the respondent, whether their lordships of the lower court were right to hold that the respondent was entitled to be deemed to have the statutory right of occupancy over the land in dispute by virtue of Section 34 (1) and (2) of the ;Land Use Act, 1978.
3- Whether or not from the pleadings and evidence before the lower court, the lower court was right when it held that the appellant did not prove that the Borno state Government have the authority to grant the Certificate of Occupancy to the appellant as there was no proper proof of acquisition and revocation of the piece of land by the Borno state Government.
4- Whether or not their lordships of the lower court were right in holding that the twin issues of ‘’acquisition’’ and ‘’revocation’’ relied upon by the trial court were sufficiently pleaded by the respondent in paragraph 7 of the statement of defence.
5- Whether or not the judgement of the lower court is against the weight of evidence.
Learned counsel for the appellant referred to the findings of the court below on Section 34 (1) & (2) of the Land Use Act, 1978 at page 109 lines 1-14 of the Record. He submitted that before the lower court can invoke the provisions of Section 34 (1) & (2) of the Land Use Act, 1978 above, there must be adequate pleadings and evidence that: a-there was sale of land by DW1 to the respondent; b-that the said sale was in 1977 prior to the coming into effect of the Land Use Act in 1978; c-the size of the land sold to the respondent must be shown; d-that the land was developed prior to 1978.
Learned counsel submitted that none of the above was established by evidence before the trial court, rendering the findings of the trial court on the purchase by the respondent in 1977 perverse and led to miscarriage of justice. He urged the court to hold.
As earlier stated, it is trite law, that in a claim for declaration of title to land, the defendant does not have a duty to prove his own title to the same land in dispute. It is the primary duty of the plaintiff who prays for a declaratory relief for title to a parcel of land to plead all relevant facts and call credible evidence to show that he is entitled to the order. It is trite law that he who asserts must prove the assertion. See; Section 135 of the Evidence Act, Elias Vs. Omo-Bare (1982) 5 SC2; Elias Vs. Disu (1962) 1 All NLR 214; Agala & Ors Vs. Eqwere & Ors (2010) 5 SCM 22.
The law is that the plaintiff in an action for declaration of title is required to satisfy the court by credible evidence but not by admission in the pleadings of the defendant, of his right to the declaration he claims. See; Bello Vs. Eweka (1981) 1 SC 101. The reason being that the grant of a declaration by the court is discretionary. See; Kodilinye Vs. Odu 2 WACA 336, Akintola & Ors (1962) WNLR 135; Sunday Temile & Ors Vs. Jemide E. Awani (2001) 9 SCM 150 at 165.
It is the appellant who relied on the Certificate of Occupancy (Exhibit C) granted to him by the Borno state Government in 1996 that needed to have provided credible evidence to prove his said title on the Certificate of Occupancy.
Generally, a certificate of occupancy properly issued to a holder presupposes that the holder is the owner in exclusive possession of the land it relates to. The said certificate also raises rebuttable presumption that at the time of its issuance, there was not in existence a customary owner whose title has not been revoked. In which case, where it is proved by evidence that someone else has a better title to the said land before the issuance of the certificate of occupancy, the said certificate becomes void and shall be liable to be revoked. See; Grace Madu Vs. Dr Betram Madu (2008) 6 NWLR (Pt. 1083) 296; (2008) 2-3 SC (Pt.11) 109; (2008) LPELR-1806 SC.
In the instant case, the only root of the title upon which the appellant based his claim to ownership of the land in dispute is the grant by the Borno state Government, which gave him a certificate of occupancy. Whereas, there was in existence a prior purchase by the respondent. It is a misconception, to say the least, for the appellant to contend that the respondent ought to have tendered his documents as evidence of purchase of the land after he had called his vendor who gave uncontroverted and credible evidence of his root of title and sale to the respondent. In other words, there is simple evidence that DW1-the vendor to the respondent, had customary right of occupancy which, before the coming into force of the Land Use Act in 1978, he had passed on to the respondent legally. The subsequent right of occupancy purportedly granted by the Borno state Government to the appellant will be void not having caused a revocation of the originally deemed grant. Otherwise, the subsequent grant will be in breach of the provisions of the Land Use Act and shall be liable to be declared void.
Ordinarily, and there is no doubt, that an owner of land under the native law and custom is entitled to transfer his absolute interest in the land to another and grant exclusive possession of same. See; Aboderin Vs. Morakinyo (1968) NMLR 179.
As clearly shown in evidence on record, the respondent claimed to have purchased that land in dispute from DW1 in 1977 prior to the coming into effect of the Land Use Act, 1978. See, Section 1 of the Act.
And where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Government under the Act. See; Section 34 (2) of the Land Use Act, 1978.
Therefore, because the respondent was deemed to be a holder of a statutory right of occupancy before the purported subsequent grant of another right of occupancy to the appellant in 1996 vide Exhibit C, the Certificate of Occupancy No.BO/12336, the Government of Borno state then had nothing on the land in dispute to have granted to the appellant. Not having revoked the existing right of occupancy of the respondent and acquired the said land in dispute, the appellant acquired nothing.
It is clear that the reply brief of argument filed by the appellant in this appeal did not meet the essence of a reply brief to a respondent’s brief of argument and consequence is for the court to discountenance the said reply brief. According, the appellant’s reply brief filed on 26/2/2017 is hereby discountenanced.
The sum total of what has been said is that all the issues raised by the appellant are hereby resolved against the appellant but in favour of the respondent. The judgement of the trial Court was not against the weight of evidence, and was rightly affirmed by the court below.
As shown above, there is concurrent findings of facts of the two lower courts. This court approaches these issues from the premise that as the making of findings of fact is primarily within the province of the trial court which has the opportunity of seeing, hearing, and observing the witnesses testify, the trial court’s conclusions of the facts are presumed to be right. The onus is therefore in the party seeking to upset the judgement on the facts, to displace the presumption. And where the appellate court, as the intermediate court below has confirmed such conclusion or findings, the presumption becomes even stronger and may only be reversed or interfered with upon special circumstances shown such as miscarriage of justice. See; Iyiola Ogunjumo & Ors Vs. Muritala Ademolu & Ors (1995) 4 NWLR (Pt.389) 2541 (195) LPEIR-2337 SC.
In the instant, the appellant has not shown any special circumstances to warrant the interference of this court with the concurrent findings of fact of the two courts below. No proof of any perversion or miscarriage of justice.
In the final analysis, we hold the view that this appeal is devoid of any merit and is liable to dismissal. Accordingly, it is dismissed and the judgement of the court below delivered on 12th May, 2010 which affirmed the judgement of the trial court given on 26th September, 2008 is affirmed.
There shall be costs of N250,00 against the appellant in favour of the respondent. Appeal dismissed.
Olu Ariwoola, JSC
M.E. Oru, Esq. with Yewande Savage, Esq, Paschal Ezurike Esq, Noah Adamu Esq, Ogheneochuko Oru Esq for the appellant.
K.J. Ntafa Esq with B.O.Yerima Esq for the respondent.
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