Emy J. Bila Auta V. Chief Willy Ibe (2003) LLJR-SC

Emy J. Bila Auta V. Chief Willy Ibe (2003)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is an appeal against the decision of the Court of Appeal Jos Division, by the plaintiff who won her case in the High Court of Taraba State holden at Jalingo, Adamu Aliyu CJ; wherein the plaintiff in her amended statement of claim claimed against the defendant as per paragraph 15 thereof as follows:-

“Whereof, the plaintiff claims the following reliefs:-

(a) An order of declaration that the plaintiff is the owner in possession of the piece or parcel of land lying and situate at plot No. 1(B) Road, Misc JP3 layout, Jalingo.

(b) An order of perpetual injunction restraining the defendant his agents, servants, privies, assigns or functionaries from further acts of trespass on the plaintiff’s land.

(c) An order of demolition of the purported illegal structures raised on the plaintiff’s plot.

(d) An order of N50,000.00 as general and aggravated damages for unlawful trespass and erection of illegal structure on the plaintiff’s land.”

After the closing of pleadings including amendment, the trial commenced in which both parties led evidence and tendered documentary evidence, the court also visited the disputed land. In its judgment delivered on the 29/11/1994, the learned Chief Judge found for the plaintiff thus:-

“On the whole I am satisfied that the plaintiff has title to the plot situate at No. 1B Road JP 3, Jalingo and proceed to enter judgment for her in terms of her claims and hereby make the following orders:-

1. The plaintiff is declared as the rightful owner of Plot 1B Road JP 3 Sintoli Ward, Jalingo.
2. The defendant should demolish all structures erected by him on the said plot, and leave the plot vacant for plaintiff’s full possession.
3. The defendant should pay the sum of N20,000.00 to the plaintiff as damages.”

The defendant felt aggrieved with the decision and appealed to the Court of Appeal Jos Division. At the end of the hearing of the appeal, Edozie, J.C.A (as he then was), in his judgment with which Oguntade and Opene, JJCA concurred, observed:-

“It is also well settled that a party seeking a declaration of right of occupancy over a piece or parcel of land must be able to identify that piece or parcel of land failing which his case will be dismissed. This is the view taken by the Supreme Court in the case of Epi v. Aigbedion (1972) 10 SC 53 at 53 …

In the case in hand, the respondent being the plaintiff in the court below has the burden of proving her entitlement to the right of occupancy of the land in dispute. Her first hurdle is to identify the land which she claimed was allocated to her. It is common ground on both sides that the radical title of the land is vested in the Jalingo Local Government. The respondent tendered in court as exhibit A, a Certificate of Occupancy No. 2224 from Jalingo Local Government by which she was granted right of occupancy over the land in dispute. It is dated 5th January, 1983. Apart from stating the size of the land to be 100′ x 50′ and that it is located in Santoli Ward Jalingo, there is no survey plan of the land nor a description of its boundaries. So too, is exhibit B which is a renewal of exhibit A and C which is an application to the Ministry of Land and Survey, Taraba State for the conversion of exhibits A and B to statutory right of occupancy. There is also exhibit D, a letter dated 22/6/92 whereby the respondent reported the appellant to the General Manager Urban Planning Jalingo, I am aware that there is a site plan attached to that letter and a plot in the plan verged red. Apart from the fact that there is no explanatory note to show that the area verged red is the land in dispute, there is nothing to show that it is related to exhibit A, Band C. PW3, Musa Munkaila is an official from the Ministry of Lands and Survey. Part of the evidence on page 14 lines 10 to 17 reads as follows:-

‘The plaintiff was granted an approval for a Certificate of Occupancy on 2/6/92. There is nothing to show that the land has been clearly mapped out. Normally after grant the applicant is to apply for a survey to be undertaken by the Ministry. In this case the plot has not been demarcated with beacon by our Ministry’.”

Under cross-examination, the witness on page 14 lines 31 to 35 said:

“From TPA – TPB – 47.98 metres. From TPB – TPC 43.00 metres. From TPC – TPD 29.00 metres” .

There is no exhibit bearing the symbols referred to above. Even if one were to assume that they refer to pillar beacons which were shown to the court when it visited the locus in quo, the possibility that those pillar beacons had been tampered with cannot be ruled out. That this is not just a mere speculation is borne out from the evidence of the appellant when on page 21 lines 22 to 25 of the record he said:

‘When the plot was given to me by the Local Government there were four beacons but at last the plaintiff removed the four beacons by herself that was in 1992′.

In the absence of a Certificate of Occupancy with a proper description of the land granted to the respondent or a survey plan of the land, the Certificate of Occupancy is valueless. The complaint that the land allegedly granted to the respondent is unascertainable is well founded. I am with respect, unable to agree with the learned Chief Judge that the respondent had proved her case to entitle her to judgment.”

The defendant’s appeal was accordingly allowed and the plaintiff’s case was ordered to be dismissed. Now, the plaintiff has appealed to this court. Three grounds of appeal accompanied the notice of appeal. Two issues for determination have been identified, formulated and submitted to this court for the determination of the appeal. The issues read as follows:-

“1. Whether the appellant clearly ascertained or identified the land being claimed by her.

2. Whether the lower court was right when it speculated on the credibility of witnesses at the court of trial where testimonies have not been shown to be perverse.”

Before the examination of the issues raised for the determination of the appeal, it shall be necessary at this stage to state the background facts of the dispute between the parties.

The case of the appellant as the plaintiff is that in 1983 the Jalingo Local Government granted a piece of land to her under a Certificate of Occupancy No. 2224 of 5/1/1983.

That is exhibit A in the proceedings. The Certificate of occupancy was renewed on the 20/2/1985 and was given a new number R2/R/9 that is exhibit B. In 1990 the plaintiff applied for the conversion of the right of occupancy to a statutory one and approval was given. Exhibit C, the application to convert the customary right of occupancy to the Ministry of Lands and Survey was accompanied by a site plan. The plaintiff alleged that in 1992 the defendant trespassed and encroached on part of the land where he started to build. Through exhibit D, a letter of complaint to the General Manager Urban Planning Authority who unsuccessfully prosecuted the defendant in the Magistrates’ Court for the trespass and the illegal structure. It was when the defendant refused to stop the building, that the plaintiff took this action.

The defendant on the other hand claimed that he was granted a piece of land by the Jalingo Local Government vide a Certificate of Occupancy No. 1095 dated 31/10/1981, exhibit F in these proceedings. The plot was situated at No. 40 Sports Council Road, Santoli Ward Jalingo. The defendant claimed that with the consent of the planning authority, he fenced the entire land and erected a residential building therein in 1984.

At the hearing of the appeal, in this court the plaintiff herein referred to as the appellant was absent and unrepresented, this court deemed her appeal as having been argued. The learned counsel for the respondent adopted the arguments canvassed in the brief. I shall now deal with the issues as argued in the appellant’s brief.

Issue No.1

This is concerned with the question whether the court below was right or wrong in holding that the appellant did not prove the identity of the land she is claiming declaration of title to. It is firstly submitted that the appellant, through her pleading and evidence established the identity of the land she is seeking declaration of title for. It is argued that of the five ways of proving title to land, the appellant proved her title by documentary evidence and also by act of ownership vide Idundun v. Okumagba (1976) 9 – 10 SC 227 at 246; Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252. The learned counsel argued that the appellant by tendering her Certificate of Occupancy over title to the land, she had done all what was necessary for her to be entitled to a declaration of title to land.

On the issue of act of ownership the appellant testified further that she erected “a four bedroom flat” on the land.

It is again submitted that the appellant pleaded and led evidence that she is statutory owner of the land in dispute lying and situate at plot No. Road Misc JP 3 Layout near the Ministry of Education. It is argued that the appellant needed not even prove the allegation because the respondent evasively traversed the said averment in his pleadings. See Lewis & Peat N.I.R v. Akhimien (1976) 7 SC 157; Odiba v. Muemue (1999) 10 NWLR (Pt. 622) 174; Wallersteiner v. Moir (1974) 1 WLR 991.

It is again submitted that the appellant had by tendering exhibits A, B, C and D, clearly established the identity of the land especially in exhibit D which contained survey plan of the land. The learned counsel referred to Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544; Elias v. Omo-Bare (1982) 5 SC 25; Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Adepoju v. Oke (1999) 3 NWLR (Pt. 594) 154. Further to the above PW3 testifies that the respondent “has encroached into plaintiff’s plot from TPB – TPC that means the whole of 38 metres on which the defendant’s building is situated lying within plaintiff’s plot”. Thus evidence of PW3 was not challenged and accordingly the trial court was right to rely upon it and to come to the conclusion that the appellant had proved the identity of the land vide Maberi v. Alade (1987) 2 NWLR (Pt. 55) 101; Ezeokeke v. Uga (1962) 2 SC NLR 199; (1962) 1 All NLR 482.

It is finally submitted that the Court of Appeal was in error when it held that the appellant failed to identify the land she was seeking declaration of title to, by tendering exhibit D and by the evidence of PW3, the identity of the land was proved. It is argued that the Court of Appeal was wrong to have ignored these pieces of evidence.

It is submitted on the other hand by the respondent’s counsel, that the Court of Appeal acted correctly when it held that the land claimed by the appellant was unascertainable because the Certificates of Occupancy particularly exhibits A, B and C did not contain any description of the land granted to the appellant. It is further submitted that evidence led by the appellant was completely at variance with the appellant’s pleadings. It is argued further that the plan contained in exhibit D does not show any connection with exhibit A, Band C. It is further submitted that PW3 Musa Munkaila an official from the Ministry of Lands and Survey testified “that there is nothing to show that the land has been clearly mapped out” and that the plot had not been demarcated with beacons. Accordingly the land which the appellant was claiming is not properly identified. See Epi v. Aigbedion (1992) 10 SC 53; Etim v. Oyo (1978) 6 – 7 SC 91.

It is further argued that PW3 contradicted himself when in one breath he said the land was not demarcated with beacons and claims to give the measurements of beacons which were not tendered in any document. It is submitted that in the absence of the proof of the identity of the land, the trial court ought to have dismissed the appellant’s claims vide Nwobodo Ezendu and Others v. Isaac Obiagwu (1986) 2 NWLR (Pt. 21) 208; (1986) 3 SC 1.

It is also argued that the trial Judge was in error to have found for the appellant since having found that the competing titles of the parties having originated from a common grantor, the Jalingo Local Government, the first grant in time takes priority. See Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511. The evidence clearly showed that the respondent was on the land earlier than the appellant. The respondent indeed has erected his building and his plot between 1981 to 1984. His Certificate of Occupancy No. 1095 was issued on the 31/10/1981 as evidenced by exhibit F. The plot is situate at No. 40 Sports Council Road, Jalingo. It is also submitted that the appellant’s exhibits A and B were the same customary right of occupancy with different numbers issued by the same Jalingo Local Government at later times and referred to the appellant’s plot as situate at No. 1 Road JP 3 Layout Sintali Ward Jalingo. It is also submitted that the appellant’s title exhibits A and B did not have street name nor plot numbers. Wherefore it is further argued that the learned trial Judge was in error to rely on the Emir’s seal to hold that the appellant’s certificate was more ‘authentic’. It is again argued that the evidence led by the appellant contained material contradiction and her case ought to have been dismissed vide Ogunbiyi v. Ogundipe (1992) NWLR (Pt. 263) 24. It is further submitted that the mere tendering of a survey plan which was vague and did not contain any explanations was not enough to prove the identity of the land the appellant was seeking declaration of title for. There was no connection between the plan with either exhibit A or B and as such could not confer title. See Osawe v. Osawe (1991) 5 NWLR (Pt. 194) 710; Arabe v. Asanlu (1980) 5 -7 SC 78.

Now, in action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which a declaration can be attached, see Odesanya v. Ewedemi (1962) 2 SCNLR 23; (1962) 1 All NLR 320. The first duty of a plaintiff who comes to court to claim a declaration of title is to establish to the court clearly the area of land to which his claim relates. It is also trite that before a decree of declaration of title to land can be made, the land to which it is related must be identified with certainty. If the land cannot be properly ascertained, the plaintiff’s claim must fail. See Baruwa v. Ogunsola (1938) 4 WACA 159; Kwadzo v. Adjei (1944) 10 WACA 274; Oluwi v. Eniola (1967) NMLR 339. In the case of Iordye v. Ihyambe (2000) 15 NWLR (Pt. 692) 675. Wali, JSC said:

“The Court of Appeal was in my view right when it stated that –

‘The onus is on a plaintiff seeking for a decree of declaration of title to show clearly the area to which his claim relates … the plaintiff can do this by such oral description of the land that any surveyor acting on such description can produce a plan of the land he claims.’

The only evidence given as regards the boundary of the land in dispute is the mention of the locust bean tree. It is vague and incomprehensible. In an action which seeks the determination of boundaries between the parties to the dispute it is for the plaintiff to identify and prove the existing boundaries and where none is identified and proved, the court has no power to demarcate one. See Amata v. Modekwe (1954) 14 WACA 580; Akubueze v. Nwakuche (1959) SCNLR 66.”

In the instant case, the appellant in proof of the identity of the land has tendered exhibits A and B both Certificate of Occupancy issued by the Jalingo Local Government. In both of them there is no description of the land granted, no plot number is mentioned. Exhibit A merely stated it granted unnumbered plot in the “Jalingo Settlement Area” and exhibit also mentioned unnumbered plot “in the area known as Sintali.”

In exhibit C, the letter of grant of the statutory right of Occupancy, the land granted is plot No.1 (B) Road in Misc 7 P3 Layout Jalingo, the plan attached to exhibit does not also help as there is nothing on the plan connecting it with exhibits A, B, or C. It is trite that the mere production of a Certificate of Occupancy by a party in a suit does not by itself entitle the party to a declaration of title to land.

Further to the above, the evidence adduced by the appellant and her two witnesses especially PW3 is not only at variance with her pleadings but also contradictory in material particular and magnitude, which in my view must raise substantial doubt in the mind of the trial court as to the authenticity or veracity of the case of the plaintiff. See Oyeyiola v. Adeoti (1973) 1 NMLR 103. In the instant case, the appellant had woefully failed to prove her entitlement to a decree of declaration since the land she was claiming was not identified or proved. The learned trial Judge merely gave her title because of the existence of the Emir’s stamp on exhibit B. I agree with the submission of the learned counsel for the respondent that under the Land Use Act, 1978, the allocation of customary right of occupancy is the exclusive preserve of a Local Government and it does not call for any Emir’s stamp or seal or approval. See section 41 thereof.

Before I part with this issue, I think it is also important to bear in mind that even if the appellant had properly established the area she was claiming, her claims ought to fail, because it was common ground both the appellant and the respondent alleged grant were made by a common grantor, the Jalingo Local Government. It is not disputed that the appellant was granted the land much later in time than the respondent.

Accordingly when the respondent was granted his plot on the 3/11/1981 by the Jalingo Local Government, the Jalingo Local Government had divested itself of its interest in the land for it to grant the same land in 1983 to the appellant. See Atanda v. Ajayi (supra). A Certificate of Occupancy is normally the evidence of exclusive possession and the rights provided for in favour of the person in possession of such certificate. The right of occupancy granted to the appellant was granted to her when the respondent was lawfully enjoying an earlier grant to him of the same land. See Joshua Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745. At the time the appellant was granted exhibits A, B, or when exhibit C was issued by the Jalingo Local Government and by Taraba State Ministry of Lands and Survey, the grantor had no longer the competence to grant the same land to anybody, the right earlier created in favour of respondent not revoked.

In any event, the appellant had failed to ascertain the boundaries. The law is well settled by a long line of authorities that the onus of proof of the identity of the land mass lies on the plaintiff who seeks a decree of declaration of title to the land. Where a plaintiff fails to prove the identity of the land in dispute his claim will be dismissed. See for example Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192; Nigeria Engineering Works Ltd. v. Denap Ltd. (2001) 18 NWLR (Pt. 746) 726. I am in complete agreement with the decision of the court below on this matter and I accordingly resolve this issue against the appellant.

Issue No.2

The complaint here is concerned with whether the court below was right when it speculated on the credibility of witnesses at the court of trial where testimonies have not been shown to be perverse. It is submitted that an appeal court should not ordinarily disturb the findings of facts of the trial court, unless it is shown that the finding is perverse or cannot be supported having regard to the evidence adduced. Learned counsel referred to a number of cases on this point. It is submitted that the learned Justices of the court below were in error to have embarked in the assessment of the credibility and the demeanour of the witnesses of the appellants and thereby making far-reaching decisions on the facts which occasioned miscarriage of justice. The finding of the learned justices of the court below which is frowned at was concerned with the observation that the “pillar beacons which were shown to the court when it visited the locus in quo the possibility that these pillar beacons had been tampered with cannot be ruled out”. It is further argued that the issue of the tampering of the beacons was not the case of the respondent and the issue did arise for the determination of the appeal.

The learned counsel for the respondent argued that the Court of Appeal was justified in making the observation because firstly the appellant never pleaded the beacons referred to by the PW3 in his evidence. Secondly none of the exhibits A, B or C referred to any beacons and thirdly, PW3 contradicted himself in one breath he said the land in dispute has not been “mapped out” and “in this case the plot has not been demarcated with beacons by the Ministry,” and in another breath he mentioned the existence of the beacons. In any event, the existence of the beacons was never pleaded.

I have carefully considered the argument of the counsel on this issue. In my view the learned counsel for the appellant is raising a storm in a tea cup. The justices of the court below reached their decision because the appellant had failed to identify the land in dispute. It was clearly manifest that, in any event, even if the appellant had established the identity of the land she was claiming, the respondent was earlier granted the same land by the Jalingo Local Government. As mentioned above, when the local government purported to grant the land to the appellant, it had no longer any interest in the land it granted to the appellant. The findings of the learned trial Judge are clearly perverse and could not be supported having regard to the evidence accepted by him. He had found that the respondent was granted the land in 1981 and the same land was granted to the appellant a few years later and there was no evidence or suggestion that the respondent’s title has been revoked. The only reason the learned trial Judge declared the land to the appellant was because the certificate exhibit B carried the Emir’s stamp and he erroneously held that it was more “authentic”. It is trite law that in an action for a decree of declaration of title to land, a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s. In any event the observation that the ‘pillar beacons” might have been tampered with was not the reason why the court below reached its decision. The decision was based on the correct view that:-

“In the absence of a Certificate of Occupancy with a proper description of the land granted to the respondent (appellant herein) or a survey plan of the land, the Certificate of Occupancy is valueless. The complaint that the land allegedly granted to the respondent (appellant herein) is unascertainable is well founded. I am unable, with respect, to agree the learned Chief Judge that the respondent (appellant herein) had proved her case to entitle her to judgment.”

Further to above, the observation on the tampering with the beacons was not speculative as asserted by the appellant, it is manifest that the respondent testified that the appellant has tampered with his beacons in 1992 and the trial Judge completely ignored this evidence. The Court of Appeal was right to refer to it.

I accordingly also resolve the second issue against the appellant. In the result this appeal fails and is dismissed by me. I affirm the decision of the court below. The respondent is entitled to costs against the appellant which I assess at N10,000.00.

SC.148/1999