SIKIRU OKANLAWON KUTI
JOSEPH SHAGBAOR IKYEGH, (JCA): The appeal is from the decision of the High Court of Justice of Lagos State sitting at Ikeja in Ikeja Judicial Division (the court below) whereby it entered judgment declaring the respondent as the plaintiff of the court below as the person entitled to the statutory right of occupancy in respect of a parcel of land located at No. 10 Olayemi Street, Amuwo in Kuje Amuwo Village, Badagry Division, now Ojo Division.
It was the case of the respondent as the plaintiff at the court below that he bought the disputed piece of land from Kuje-Amuwo family in 1974, evidenced by a Deed of Lease dated 27-5-75. The respondent had developed the piece of land by building a house up to lintel level thereon before the appellants allegedly trespassed in it in 1985.
The appellants case was that they own the disputed parcel of land which is at Kuje-Amuwo Badagry facing Olayemi behind Amosu Street. 2nd appellant had employed the services of a licensed surveyor to survey the piece of land in 1984. Again in 1998 the 2nd appellant engaged a licensed surveyor who made a composite plan for him. It appears the 2nd appellants case was that he bought the parcel of land from the 1st appellant. And the 2nd appellant got a Certificate of Occupancy over the disputed piece of land in 1991. According to the Deed of Transfer between the 1st appellant and the 2nd appellant, the original owners of the parcel of land are Kuje Amuwo and Imore families which the 1st appellant sold to the 2nd appellant and issued the 2nd appellant purchase receipt on 27-01-78 vide page 30 of the record of appeal.
The appellants denied trespassing in the land and claimed ownership of it based on the Certificate of Occupancy issued to him in 1991.
The court below resolved in its judgment that the respondent had proved better title to the piece of land and awarded the respondent declaration of statutory title to the disputed piece of land.
Dissatisfied with the judgment, the appellant appealed against it by a notice of appeal with seven grounds of appeal. A brief of argument was filed by the appellant on 29-12-14 but it was deemed properly filed on 30-04-15. It raised these issues for determination
ISSUES FOR DETERMINATION
i. Whether the Judgment having regard to the date of the last address and the time of the delivery of judgment and the prejudice to the parties in the nature of the miscarriage of justice, the Judgment ought not to have been declared null and void - Ground I.
ii. Whether having regard to the state of pleadings, the evidence required, and the evidence available the learned trial Judge ought to have given Judgment in favour of the Respondent - Grounds 2, 3, 4, 5 and 7.
iii. Whether the learned trial Judge was right when she ordered that the certificate of occupancy of the 2nd Appellant be set aside - Ground 6.
iv. Whether the action of the Respondent is statute barred having regard to the state of the pleadings wherein the cause of action in respect of a matter relating to recovery of land was committed in May 1985 but action was not commenced against the 151 defendant, having regard to the amended Writ of Summons and amended Statement of Claim resealed at the High Court Registry, Ikeja, until the 281h of October, 1997 - a period of over 2 years from the said date the cause of action was alleged to have arisen having elapsed. - Ground 8.
Issue 1 (supra) and ground 1 of the notice of appeal based on it were withdrawn at the hearing of the appeal and are hereby struck out.
It was argued on issue 2 (supra) that the respondent had a limited right of possession of the piece of land from 50 years on lease, not as occupier of the land, therefore the court below should not have granted the respondent a declaration to statutory right of occupancy in respect of the disputed piece of land when the owners of the land were not joined as parties to the suit and the document of title not properly proved vide Salami v. Oke (1987) 4 NWLR (pt.68) 1 at 13, Iroegbu v. Okwordu (1995) 4 NWLR (pt.389) 270 at 283, Akinduro v. Alaya (2007) 15 NWLR (pt.1057) 312 at 329 and 332, Dada v. Ogunremi (1967) (?) NWLR (pt.181) (no pagination) considered with the definition of holder; occupier in section 51 of the Land Use Act.
It was argued that the identity of the piece of land was put in issue in the pleadings and each party tendered in evidence survey plans of the disputed piece of land and composite plan with respondents surveyor admitting that a wrong piece of land was claimed by the respondent which the respondent in his application and affidavit to call the surveyor-general to help locate the disputed piece of land which the court below refused, the identity of the disputed piece of land should not have been held by the court below to have been proved by the respondent as the evidence proffered for the respondent was at variance with his pleadings vide Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282 at 301, Ogedengbe v. Balogun (2007) 9 NWLR (pt.1039) 380 at 393, Enang v. Adu (1981) 11 12 SC 25, Ezeanah v. Attah (2004) 7 NWLR (pt.873) 468; Ifeta V. S.P.D.C. (Nig.) Ltd. (2006) 8 NWLR (Pt. 983) 585 Woluchem v. Gudi (1981) 5 SC; Basheer V. Same (1992) 4 NWLR (Pt. 236) 49 I; Uwegba v. A-G; Bendel State (1986) 1 NWLR (pt. 16) 303; Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578; Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182; Elegushi v. Oseni (2005) 14 NWLR (Pt. 945) 348 referred to. ) (Pp. 168, paras. B -E 171, paras D-E).
It was argued in the alternative that even if the disputed piece of land is not in dispute the delay between 1985 and 1997 when the suit was filed indicated the respondent slept over his rights, if any, and that the respondent was guilty of laches and acquiescence after the appellants had promptly replied him that they own the disputed piece of land, therefore the court below should have dismissed his case vide Sasegbons Laws of Nigeria Vol.14 para 976 at page 488, Oduala v. L.C.C. (1978) 11 NSCC 252 at 259, Nwakobi v. Nzekwe (1961) 1 All NLR 445, 450 451, Akanni and Ors. v. Makanjuola (1978) 11 12 SC 13 at 21, Marah v. Okwuyanga (1990) 1 NWLR (pt.125) 224 at 234 and section 8(4) Limitation Law of Lagos State.
It was submitted on issue 3 (supra) that no relief was sought by the respondent for the appellants Certificate of Occupancy to be set aside, therefore the order made by the court below in page 246 of the record setting aside the Certificate of Occupancy was wrong and should be set aside as the court cannot grant what was not asked for vide Eagles Super Pack (Nig.) Ltd. v. V.A.C.B. Plc (2006) 19 NWLR (pt.1013) 20 at 56.
It was contended on issue 4 (supra) that the action was commenced on 01-04-97 and the amended writ and amended statement of claim resealed on 28-10-97, while the cause of action arose in May 1985, showing the suit was filed 5 months outside the 12 years period of limitation set by the Limitation Law of Lagos State (supra), therefore the action was statute barred and should have been dismissed, more so the action was not initially commenced against the 1st appellant until the writ was issued in his proper name on 24-01-97 and that at that point the writ was liable to be set aside vide Hi-now Farms Industries Ltd. v. University of Ibadan (1993) 4 NWLR (pt.313) 737 738 and that the motion on notice upon which the 2nd appellant was made a party in the suit and thus became a party thereto was granted on 07-06-2000 showing both appellants became proper parties to the action after the suit was spent on account of the Limitation period in question vide Akinkunmi v. Sadiq (2001) 2 NWLR (pt.696) 101 and section 16(2) of Lagos State Limitation Law 1994.
The appellants finally urged that the appeal should be allowed and the judgment of the court below set aside and the respondents suit at the court below be dismissed.
The respondent filed a brief of argument on 27-05-15 in which he proposed these issues for determination
1. Whether, having regard to the state of pleadings and evidence adduced before the trial court, the Claimant/Respondent is not entitled to the judgment in the suit.
2. Whether, the trial court does not have the power and competence to make a consequential order setting aside the Certificate of Occupancy of the Defendant.
3. Whether, in view of the pleadings and surroundings circumstances of this case, this action is statute barred.
The respondent contended that the evidence of ownership of the disputed piece of land through the original owner, Kuje family of Amuwo, since 1968 as pleaded by him was credible and not discredited by the appellants, therefore the court below properly evaluated and accepted the unchallenged evidence of the respondent and the unquestionable assessment of the evidence should not be disturbed vide Sokwo v. Kpongbo (2008) 7 NWLR (pt.1086) 342 at 362, INEC v. A.C.N. and Ors. (2009) 2 NWLR (pt.1126) 604, Eleran v. Adeornpe (2008) 11 NWLR (pt.1097) 50 at 69, Bello v. Fayose (1994) 2 NWLR (pt.323) 407 at 417; that the appellants had been found to have no interest in the disputed piece of land and is therefore not entitled to object to the form of declaration made by the court below vide Dosunmu v. Joto (1987) 1 (?) (pt.1) 359, Ayomano and Anor. v. Ginuwa 11 (1943) 9 WACA 86.
The respondent contended a lessee for 50 years such as the respondent has a legal estate and is entitled to a statutory right of occupancy for the term of years as was made by the court below citing in support sections 1, 2, 34, 35, 40, 50(i) of the Land Use Act read with the book Cases and Materials on Nigerian Law (1992) Mabrochi Books at page 70, Kukoyi v. Aina (1999) 10 NWLR (pt.624) 633 at 636, Chiroma v. Suwa (1986) 1 NWLR (pt.19) 751, Kachalla v. Banki (2006) AFWLR (pt.309) 1420, Kukoyi v. Aina (1999) 10 NWLR (pt.624) 633, Awa v. Ibe (2003) 13 NWLR (pt.837) 247, Abioye v. Yakubu (1999) 5 NWLR (pt.190) 130 at 251.
The respondent contended that the appellants conceded the identity of the disputed piece of land in paragraph 7 of their statement of defence, so the parties were ad idem on the identity of the parcel of land vide Otanma v. Youdugbana (2006) All FWLR (pt.300) 1579, Adelusola v. Akinyelu (2004) 12 NWLR (pt.887) 295.
The respondent also contended that the evidence from his surveyor identified the disputed parcel of land with certainty unlike the evidence of the appellants surveyor who placed the location of the land 2,750 metres at Ijeshatedo away from the land in dispute and away from the entire Kuje family land; that the court below believed the evidence of the respondents surveyor which should not be disturbed vide Otanma v. Youdugbana (supra); that the court below did not need the surplus evidence of Surveyor-General to add to the established evidence of the PW2; and that the Court below did not base its decision on the application to call the Surveyor General as a witness in the case.
The respondent contended that the arguments on laches and acquiescence are not covered by any ground of appeal and should not be countenanced vide Idika v. Erisi (1988) 2 NWLR (pt. 78) 963; that the respondent duly warned the appellants off the disputed piece of land when he noticed their acts of trespass in the disputed piece of land in 1985 when the cause of action arose and cannot be guilty of laches and acquiescence vide Owie v. Igbiwi (2005) AFWLR (pt. 243) 1762, Fadare v. A.-G., Oyo State (1982) NSCC 52.
The respondents contended t6hat the order setting aside the appellants certificate of occupancy was consequential in that it was made to give effect to the judgment and was, according to the contention of the respondent, properly made and based on the evidence vide Obayogbona v. Obazee and Anor. (1972) 5 SC 247 at 254-255, Maduabu v. Ray and Ors. (2006) ALL FWLR (pt. 300) 1071 at 1704, Amechi v. INEC (2008) 5 NWLR (pt. 1080) 227 at 345, Registered Trustees, Apostolic Church v. Olowoleni (1990) 6 NWLR (pt. 158) 514, Tanko v. Caleb (1999) 8 NWLR (pt. 616) 606, Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 at 708.
Arguing on the statute of limitation, the respondent stated that there was a consensus between the parties that the action was filed on 01-04-97 vide page 140 of the record, so the ground of appeal on the issue which is not the basis of the action should be struck out vide Ifayanneyin v. Omomowo (1992) 5 NWLR (pt. 239) 30 at 37; that from the writ and pleadings filed by the respondent on 01-04-97, and the evidence led by the respondent the cause of action arose in May 1985 showing the action was filed within 12 years as required by the Limitation Law of Lagos State vide Kasandubu v. Ultimate Petroleum Ltd and Anor (2008) 7 NWLR (pt. 274) 298, Adekoya v. F.H.A. (2008) 11 NWLR (pt. 1099) 539 at 557.
The respondent contended that an amendment of the pleadings does not create an entirely new action vide Amanamba v. Okafor (1966) 2 SCNLR 126, Sanni v. Oke (1987( 4 NWLR (pt. 63) (no pagination), Rotimi . Mcgregor (1974) 11 SC 102 at 116, Adewumi and Anor. v. Ekiti State (2002) S.C.M 1 at 141. The respondents accordingly advocated for the dismissal of the appeal with substantial costs.
The respondents reply brief dated and filed on 06-10-15 but deemed properly filed on 04-02-16 reiterated that it was when the proper party was brought into the case by the resealed writ and statement of claim in page 12 of the record that was the date the action was filed as the court is competent only when the proper parties are before it vide Goodwill and Trust Investment Ltd and Anor. v. Witt and Bush Ltd. (2011) 8 NWLR (pt. 1250) 500 at 538; that paragraphs 15 and 16 of the further amended statement of defence and paragraph 6 of the reply to the further statement of defence put the identity of the disputed piece of land into issue vide pages 58-59 and 93 of the record; that the respondent admitted against his interest that the composite plan was confusing and the identity of the disputed piece of land was not properly made out so the admission is binding on the respondent vide Anibogu and Ors. v. Uchejigbo (2012) 10 NWLR (pt. 776) (no pagination), Registered Trustees of Ahmadiyya Mission of Nigeria v. Sule and Ors. (2002) 2 NWLR (pt. 750) 189; that since there was no counter-claim the onus was not on the appellants to prove the case; that ground 3 of the notice of appeal challenges the case on the grounds of laches and acquiescence; that the appellants had claimed ownership of the parcel of land to the knowledge of the respondent since 1985 so the respondent was guilty of laches and acquiescence.
The reply brief contended that since the writ and statement of claim were resealed and new filing fee paid on 28-10-77, the action commenced on the said date for the 1st appellant, while the joinder of the 2nd appellant in the suit on 07-06-2000 some 15 years after the cause of action arose was statute barred; and that the retrospective application for amendment applied only when the power to adjudicate over the matter is still capable of being a subject of a right for determination before the court.
The issues for determination identified by the appellants adequately suffice for the discussion on account of which I propose to adopt and follow them in the discussion.
The leasehold interest of the respondent in the disputed piece of land was granted by the original owners of the family, Kuje Amuwo family, by Deed of Lease to last for 50 years. The respondent thus had a term of 50 years to occupy and enjoy the disputed piece of land. By sections 1 and 2 of the Land Use Act, 1978, land comprising a State is vested in the Governor of the State to hold it in trust for the people.
The Governor of a State may grant statutory right of occupancy normally not exceeding a term of 99 years to a person within the territorial jurisdiction of the Governor of the State vide section 8 and 9 of the Land Use Act, 1978. In some cases the grant may be less than 99 years vide the case of Ilona v. Idakwo (2003) 11 NWLR (pt.830) 53 or (2003) 5 SCNJ 330 where the life of the statutory right of occupancy was limited to 40 years.
The order of the court below that the respondent is entitled to a statutory right of occupancy does not make the respondent the owner of the land. It makes the respondent entitled to possession and/or occupation of the parcel of land for use for the period of 50 years limited to the balance of the years unexhausted by the timeline of the lease.
The effect of the grant of the statutory right of occupancy would not jeopardise the residual interest of the owners of the piece of land which will be re-activated and automatically revert to the original owners of the land after the duration or demise of the lease. The declaration granted by the court below that the respondent is entitled to a statutory right of occupancy was, accordingly, validly made by the court below vide Chiroma v. Suwa (supra), Kukoyi v. Aina (supra), Kachalla v. Banki (supra), Abioye v. Yakubu (supra) at page 251, Ogualaji v. A.-G., Rivers State and Anor. (1997) 6 NWLR (pt.508) 209 at 223 where the Supreme Court followed the cases of Abioye v. Yakubu (1991) 5 NWLR (pt.190) 130 at 223 and Makanjuola v. Balogun (1989) 3 NWLR (pt.108) 192 to hold inter alia that absolute ownership of land is now vested in the Governor of each State as trustees under the Land Use Act. Thus, an individual can only acquire possessory title or right of occupancy, statutory or customary, over a piece of land. See also Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1 NWLR (pt.97) 305 at 328.
The appellants contention that the affidavit evidence in support of the motion on notice filed by the respondent to call the Surveyor-General to come and give evidence in the case admitted that the land in dispute had not been identified with certainty overlooks the fact that the court below did not make use of the affidavit evidence aright, in my opinion, as the conditions for the use of evidence in another matter were not met in the case vide Ayinde v. Salawu (1989) 3 NWLR (pt.109) 297 at 315 thus
At all material time to this case, the deponent in Exh. A, 2nd defendant was not dead, nor could not be found, nor incapable of giving evidence, nor kept out of the way by adverse party. Nor could it be said that his presence could not be obtained without an amount of delay or expense which was unreasonable. In short the conditions for the admissibility of Exh. A as truth of the facts it states, under section 34(1) of the Evidence Act, in a later stage of the same judicial proceedings are absent here. So I agree with counsel for the defendants that Exh. A is not proof of what it says.
So much on the said affidavit evidence.
In addition, the correspondence, Exhibits B and C, respectively, between the respondent in page 64 of the record and the appellants in page 65 thereof with respect to the dispute referred to the same piece of land. The respondents letter, Exhibit B, to that effect reads
Land At 10 Olayemi Street Lagos
I act for Mr. S. O. Kuti who is the registered, leasehold owner of the above piece or parcel of land at Olayomi Street Amuwo Lagos under and by virtue of a Deed of Lease dated the 27th day of May 1975 and registered as No. 10 at Page 10 in Volume 1577 of the Register of Deeds kept at the lands Registry Office Lagos and approved Plan No. DCB/273/58/OJ of 22nd May 1981 and I am instructed to demand from you the sum of N750,000.00 (seven hundred and fifty thousand naira) being special and general damages suffered by him as a result of your wrongful act when or on about the month of May 1985 you wrongfully broke and entered upon the said land in possession of my client which was already partly developed by him and started to continue building operations on the said land without the consent of my client or any other lawful justification.
Take Notice that unless you take immediate steps to stop any wrongful act on the said land steps would be taken to institute legal proceedings against you for the enforcement of my clients strict legal rights and that without any further notice from this office.
I hope that you will realize that as my client is the person entitled to the Statutory Right of Occupancy by virtue of the Land Use of Act 1978 you will comply forthwith with these ***** avoid the unpleasant consequences of litigation.
While the 1st appellants reply letter, Exhibit C, in page 65 of the record reads
Land at 10 Olayemi Street, Kuje, Amuwo
I write as solicitors to Mr. A. C. Okoye for 10 Olayemi Street, Amuwo, who has passed ****** dated 22nd November, 1985 in connect on with the above *******.
My client required the land sometime in 1973 from the landowners the Kuje-Amuwo Family and has been in lawful and undisputed possession since that year. On receipt of your letter my client has also made enquiries from the land-owing family and it would appear the interest of your client in unknown to them particularly in relation to the piece or parcel of land described in your letter.
I am further instructed to state that my client has completed the construction of a bungalow on the land without let or hindrance from anyone and in particular your client. It is further advisable that you warn your client to desist from any acts of trespass on the land in question or threats to my client in respect of this matter.
The respondent reiterated under cross-examination in page 117 of the record that
The land I bought in 1974 is the same land which is at No.10, Olayemi Street, at the back of it we have Amosu Street.
Then in page 119 of the record the respondents surveyor stated in examination-in-chief and under cross-examination that the area verged red in the plan, Exhibit G, is the respondents piece of land, which is the same area verged red in Exhibit A, the appellants plan, showing the identity of the disputed piece of land was not in doubt. The size of the land was also given by the witness as 446.265 square metres.
The identity and dimension of the disputed piece of land were accordingly not in controversy. The parties knew the piece of land they were fighting for vide Atolagbe v. Shorun (1985) 1 NWLR (pt.2) 360, Dosunmu Joto (1987) 4 NWLR (pt.65) 297 at 308.
The respondent had shown in his unchallenged evidence that after acquisition of the disputed piece of land by a lease, he took possession of the land and erected a structure up to lintel level thereon before the dispute arose showing the identity of the piece of land is not in dispute, and also that the respondent was in effective possession of the piece of land before the said dispute arose.
I am therefore of the modest opinion that the court below was right by holding in page 245 of the record based in part on the evidence-in-chief of PW2 in pages 118119 of the record and his explanation in cross-examination in pages 119 121 thereof that the identity of the land was established.
The writ and the amended statement of claim in pages 2 and 15 16 of the record bears it out in paragraph 8 of the amended statement of claim in particular that
The plaintiff avers that the Defendant wrongfully broke and entered upon the said land in possession of the plaintiff during the month of May, 1985 without the consent of the plaintiff or any other lawful justification.
The cause of action therefore accrued in May 1985; while the suit was filed on 01-04-97 vide page 1 of the record which is less than the 12 years stipulated by the limitation period for the filing of land suits. The court below was thus right to hold that
1st of April 1997 is almost 40 days to the 12th anniversary of 11th of May 1985 when the claimant alleged that the defendant trespassed on his land.
See the cases of Elabanjo v. Dawodu (2006) 15 NWLR (pt.1001) 76, Adekoya v. Federal Housing Authority (2008) 11 NWLR (pt.1099) 539 at 557, Woherem v. Emereuwa (2004) 13 NWLR (pt.890) 398, Ajayi v. Adebiyi (2012) 11 NWLR (pt.1310) 137, Kolawole v. A.-G., Federation (2012) 14 NWLR (pt.1320) 221 to the effect that in ascertaining whether an action is statute barred the date the cause of action arose as stated in the writ and/or statement of claim and the date the action was filed are normally computed for the purpose of determining whether the action is statute barred.
The appellants advocated that the proper defendant was not brought in at the time the suit was filed; that an amendment was granted to bring in the proper defendant; and that reckoning from the time the amendment was made to the time the cause of action arose was outside the limitation period. Likewise the joinder of the 2nd appellant. The point here is that a new cause of action was not brought into the case by the amendment. It was the same cause of action that accrued in May, 1985, that was in existence and maintained on the cause list. It would have been another matter if a new cause of action was brought by an amendment after the expiration of the limitation period.
The filing of the action within time made time not to run against the action and the amendment made did not alter or bring into the case a new or fresh cause of action, so the computation of the period of limitation could not have started at the time the amendment was made. In my modest view, time does not also run against a pending action vide Okechukwu v. Anigbogu (1974) U.I.L.R. (pt.11) 262, Sifax Nigeria Ltd. and Ors. v. Migfo Nigeria Limited and Anor. (2015) 4 C.A.R. page 1 per the lead judgment of Oseji, J.C.A.
The respondent challenged the 1st appellant over the encroachment in his piece of land in May 1985 in a letter dated 25-11-85, Exhibit B, to which the 1st appellant replied in Exhibit C on 09-12-85. With the encroachment unabated, the respondent reported the matter to the Lands Division of the Governors office for intervention showing the respondent did not fold his hands over the dispute. These steps (supra) taken by the respondent showed he did not sleep over has rights. Rather the 1st appellant who was put on notice that the piece of land does not belong to him continued development in the piece of land.
It should also be noted that the respondent had the statutory period of 12 years by the Limitation Law of Lagos State within which to file the suit, which he had filed within the statutory limitation period. There was thus no delay on the part of the respondent in asserting his rights over the disputed piece of land when he discovered the encroachment of the 1st appellant on it. The defence of laches would not operate where the statutory limitation period was complied with by the claimant as in the present case. Accordingly, the plea of laches and acquiescence was not established against the respondent.
The court below made findings of the fact in page 244 of the record supported by the evidence in the record that the respondent established ownership of the disputed piece of land by registered Deed of Lease, Exhibit A, dated 1974; and also that the common root of title relied upon by the parties indicated the respondent was earlier in time than the appellants in obtaining possessory rights over the disputed piece of land.
The specific finding that the parties had common source of title to the disputed piece of land was not appealed against and remains standing or extant, in my modest view. In law where the equities are equal the first in time prevails, so the respondent, according to the unchallenged findings of the court below in pages 245 246 of the record, which is supported by the evidence in the record proved a better title to the disputed piece of land and his possessory title had priority over the appellants title which had come later in time vide Ugbo v. Aburime (1994) 8 NWLR (pt.360) 1, Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (pt.979) 382.
The unquestionable evaluation of the evidence by the court below which had the singular advantage of hearing and seeing the witnesses first-hand having been supported by the evidence in the record, the decision reached thereat cannot be said to be perverse. I am reluctant to disturb the said finding of facts which I hereby affirm vide Ebba v. Ogodo (1984) 1 SCNLR 372, Ogbechie v. Onochie (1998) 1 NWLR (pt.470) 370, Imah v. Okogbe (1993) 9 NWLR (pt.316) 159, Anaeze v. Anyaso (1993) 5 NWLR (pt.291) page 1, Bamigboye v. University of Ilorin (1999) 12 NWLR (pt.622) 290, Achilihu v. Anyatonwu (2013) 12 NWLR (pt.1368) 256 at 285 286.
After the court below found as a fact that the respondent had a better title to the disputed piece of land, it held in its judgment in page 246 of the record that
I hereby set aside the certificate of occupancy of the 2nd Defendant as he did not come to give evidence to how he got the land.
I endorse the holding (supra) made by the court below. For it was held by the Apex Court in the fairly recent case of Atanda v. Iliasu (2013) 6 NWLR 529 at 559 per the lead judgment of Ogunbiyi J.S.C., inter alia that
The learned appellants counsel further dwelt at great extent and relied on exhibits D and C being the certificate of occupancy and the survey plan in favour of the appellant respectively.
Before the said documents could achieve the purpose desired by the appellant, their legality must exceed the presumptive principle laid down that there was not in existence a holder of a better title. In other words, by mere being in possession of a certificate of occupancy is not ipso facto a conclusive evidence of title or ownership.
See the case of Chinye A.M. Ezeanah v. Alhaji Mahmoud I. Attah (2004) 2 SCNJ 200, (2004) 7 NWLR (pt.873) 468 at 501, paras A-C wherein this court at page 204 held and said:
A certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person had better title to the land before the issuance of the certificate of occupancy then the court can revoke it.
In conclusion, I find no merit in the appeal and hereby dismiss it and affirm the judgment of the court below (Oluwayemi, J.) which had declared the respondent entitled to statutory right of occupancy in respect of the piece of land in dispute and, which had, also, adjudged the appellants as trespassers in the disputed piece of land upon whom an injunction or restraint was placed from committing further acts of trespass in the said piece of land. The appellants shall pay N50,000.00 costs to the respondent.
UZO .I. NDUKWE-ANYANWU: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Shagbaor Ikyegh, JCA
The Respondent as plaintiff had proved his case as being entitled to the land in dispute. The Respondent initiated his action within time, not to be caught by the limitation period. He also successfully identified categorically the land in dispute.
I am satisfied with the reasoning and final conclusions contained in the lead judgment.
I abide by all the consequential orders contained therein. I also dismiss this appeal and affirm the judgment of the lower court.
SAMUEL CHUKWUDUMEBI OSEJI: I have read in its draft form, the judgment of my learned brother J.S IKYEGH JCA in this appeal.
I agree entirely with his reasoning and conclusion that this appeal lacks merit and ought to be dismissed.
I also will, and hereby dismiss the appeal and abide by the consequential orders made in the lead judgment including the order as to costs.
Mr. A. Olowoyeye (with Miss Y. Olowoyeye) for the Appellants.
Mr. G. Osho for the Respondent.