March 3, 2024

Jenrade V. Sani: On Whether Two Rights of Occupancy can Subsist in Respect of Same Land

An insight into the decision of the Court of Appeal therein.

Citation: (2021) 13 NWLR PT. 1792 AT 111.


Courtesy: Moruff O. Balogun, Esq.

Summary of facts:
Sometime in 1993, the appellant acquired a plot of land situate at Zaria Road, Mile 7 Jos in Bassa Local Government Area of Plateau State through a sale agreement between the appellant and one Mr. Yohanna Ayuba, who sold the land to the appellant as customary owner. The appellant obtained requisite documents and a change of ownership from the Bassa Local Government. He also applied for a statutory right of occupancy from the 2nd and 3rd respondents.

However, in November 2010, he received a letter from the 1st respondent’s solicitors alleging that he trespassed into the land. He instructed his counsel to reply the letter and to conduct a search on the title granted to one D.L. Akanji & Co. vide certificate of occupancy No. PL1559. The search revealed that the certificate of occupancy was granted in 1989, over part of the property measuring 0.34 acres.

Consequently, he instituted an action against the respondents at the High Court of Plateau State, Jos claiming a declaration that he is the beneficial owner and entitled to a grant of right of occupancy over all the property constituting of an area of 6,318.29 square metres part of which was purportedly granted to the 1st respondent or whosoever by the 2nd and 3rd respondents; a declaration that the purported grant of right of occupancy No. PL1559 over an area of 0.34 acres, part of the larger plot, was illegal, null and void and of no effect whatsoever; an order setting aside the purported grant of right of occupancy to the 1st respondent or whosoever by the 2nd and 3rd respondents, an order of perpetual injunction.

The 1st respondent filed a statement of defence and counter-claim seeking an order restraining the appellant, his agents, heirs, servants or any other person claiming through him from laying claim to the land. The 2nd and 3rd respondents did not appear or file any statement of defence.

At the trial, the appellant under cross-examination admitted that the certificate of occupancy issued to him by Bassa Local Government was revoked because it was issued in error in place of certificate of occupancy No. PLISS9. The letter of revocation from the local government addressed to the appellant and copied to the 1st respondent was admitted as exhibit E”.

The 1st respondent testified as to how he acquired the land in dispute through purchase from one David Lade Akanji, who was the original allotee of the land. The certificate of occupancy issued to David Lade Akanji was admitted as exhibit C”. The assignment of the right of occupancy to the 1st respondent was admitted as exhibit “D”.

However, the exhibits were photocopies. Counsel to the parties adopted their written addresses on 15th May 2017 and judgment of the trial court was delivered on 18th
September 2017.

At the conclusion of trial, the trial court in its judgment dismissed the appellant’s claim.
Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.

Held: (Unanimously dismissing the appeal):

The following issues were raised and determined by the Court of Appeal:

On whether two rights of occupancy can subsist in respect of same land-
Where there is a subsisting right of occupancy, it is good against any other right. Therefore, the grant of another right of occupancy over the same piece of land will be merely illusory and invalid.

As long as the previous or earlier title or right of occupancy over piece of land subsists, no other rival or competing title of right of occupancy can simultaneously exist over the same piece of land. Two rights of occupancy cannot subsist in respect of the same property or else there will be anarchy.

In the instant case, the sale agreement executed in 1993 between the appellant and Yohanna Ayuba did not confer legal title on the appellant compared to the statutory right of occupancy granted to the appellant’s predecessor-in-title. At the time of the issuance of exhibit “C” to David Lade Akanji, the legal interest over the property was in the Plateau State Government and not the appellant who was never granted a statutory right of occupancy over the property. Therefore, upon the grant of statutory right of occupancy to the appellant’s predecessor-in-title, whatever interest the appellant had in the property was automatically extinguished. At the time the customary right of occupancy was granted to the appellant in 1995, the 1st respondent’s right of occupancy issued in 1988 to the original allotee was subsisting in the land since it had not been revoked. Hence the revocation of the appellant’s customary right of occupancy which was issued in error.

On onus on party seeking declaration of title to land to establish identity of land –
The issue of identity of the land in an action for declaration of title to land is very fundamental. The onus is on the plaintiff seeking for the declaration to establish the precise identity of the land he is seeking the declaration. But where the area of land in dispute is well-known to the parties, the question of proof of the identity of the land does not arise.

In such a situation, it cannot be contended that the area claimed of the land in dispute is uncertain. In an action where the plaintiff claims a declaration of title to land but fails to give the exact extent and identity of the land he is claiming, his action should be dismissed.

On who will succeed where adversaries rely on common root of title –
Where two contesting parties trace their title in respect of the same piece of land, the latter in time of the two parties cannot maintain an action against the party who first obtained grant of the land.

On right of action to seek compensation for compulsory acquisition of land by government-
By virtue of section 44(1) of the 1999 Constitution (as amended), no moveable property or any interest in immovable property shall be taken possession of compulsorily and no right of occupancy interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by a law that, among other things: requires the prompt payment of compensation thereof; gives, to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.

Section 44(1)(b) provides for a party to seek redress in the court of law for the payment of compensation from the Government. In the instant case, there was no evidence that the customary owner was not paid compensation apart from the appellant’s assertion. Even if that was the case, the customary owner from whom the appellant derived his title had the right to resort to court for the payment of his compensation from the Government. There was no evidence before the court that he demanded for the payment but was not paid.

On Locus standi to institute action for ownership of land acquired by government for public purpose-
No one has the competence or locus standi in a claim of ownership over land which has been acquired by the government for public purposes.

Once the disputed land is acquired by the Federal Government, all existing rights are extinguished. Consequently, a claimant has no locus standi to institute a case. In the instant case, the appellant lacked the locus standi to institute the action.

On type of secondary evidence of public document admissible –
A copy of a public document must be certified before it can be tendered and accepted by the court. In the absence of the original document, only a properly certified copy is admissible as secondary evidence but no other kind of secondary evidence will be admitted.

In the instant case, exhibits “C” and “D”, the Certificate of Occupancy and the right of occupancy tendered by 1st respondent, were photocopies and were secondary evidence.
They were not certified and therefore were not properly admitted as required by section 102 of the Evidence Act, 2011.

Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
09121207712 [WhatsApp]

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