THOUGH A CERTIFICATE OF OCCUPANCY RAISES A REBUTTABLE PRESUMPTION IN FAVOUR OF ITS HOLDER, THE COURT MAY SET IT ASIDE

CASE TITLE: ORBIAM & ORS V. ADAMA & ORS (2018) LPELR-45886(CA)

PRACTICE AREA: LAND LAW

LEAD JUDGMENT BY: JOSEPH EYO EKANEM, J.C.A.

FACTS OF THE CASE

This appeal is against the judgment of the High Court of Justice, Benue State, holden at Makurdi, delivered by KaKa’aan, J.

The 1st respondent, a retired Air Vice-Marshal of the Nigerian Air Force, was granted the right of occupancy over the land in dispute on 1/9/1986 by the 3rd respondent (Governor of Benue State). He had been paying ground rent on the land. In August, 2008, on a visit to the land, he noticed the presence of the 2nd – 5th appellants and another person on the land. Efforts to eject them from the land failed. He therefore took out a writ of summons against them endorsed with a statement of claim, seeking the following reliefs:

“a. Declaration that the plaintiff is the rightful holder of Right of Occupancy to plot NO. BN 2997, bounded by beacon numbers MK4243, MK4240, MK4241 and MK4242 covering a total area of 3036 Sq. mtrs on the TPS 018, to the exclusion of all other persons including the defendants herein.

b. Declaration that the entry and occupation of the 1st to 5th defendants thereon, without the permission of the plaintiff are acts of trespass.

c. Declaration that the beacons on the said plot of land had been removed by the 1st to the 5th defendants and they are liable to pay for the beacons they removed to be re-established the removed beacons.

d. Order the Court directing the 5th to the 8th respondent to withdraw and cancel any title over the said piece of land granted to any other person including the 1st to 5th defendants, if any.

e. Order of the Court direction 6th – 8th defendants to re-establish the four beacons demarcating the plaintiffs plot of land which have been found removed the same having been paid for by the plaintiffs.

f. Order of the Court directing the defendants jointly and severally to pay the plaintiff, general damages of N5,000,000.00 for acts of trespass and other problems and other consequences which the acts of trespass and refusal to re-establish the removed beacons has caused the plaintiff.

g. .Order of perpetual injunction restraining the defendant by themselves, agents, privies, servants, through and by whomsoever, acting for and on behalf of the defendants.

h. Cost of this litigation.

In response, the 1st – 5th appellants filed a further amended joint statement of defence and counter-claim, denying 1st respondent’s claim. The 2nd and 3rd respondents filed a joint statement of defence.

After taking addresses, the trial Court granted the claim of the 1st respondent and dismissed the counter-claim of the appellants and 1st defendant. 

Aggrieved by the decision, appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION 

The issues for determination as distilled by the appellants are:

“a) Whether or not the claim of the 1st respondent is caught by the Benue State Limitation Law (1988) as amended and therefore statute-barred.

b) Whether or not the 1st respondent established his claim on the balance of probability to be entitled to the judgment of the lower Court.

c) Whether or not Exhibits N and P operate as estoppel, the land having been litigated upon to estop the 1st respondent from laying claim to it.

DECISION/HELD
In conclusion, the appeal was dismissed.

RATIO DECIDENDI

• LIMITATION LAW – LIMITATION PERIOD – Limitation period for bringing an action for recovery of land
• EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF – Whether a plaintiff can rely on the weakness in the case of the defendant to prove his own case in an action for declaration of title
• LAND LAW – CERTIFICATE OF OCCUPANCY – Whether the court can set aside the grant of a certificate of occupancy for another person who has a better right to the grant.