Order of Priority Where Competing Interests in Land Emanate from Same Grantor

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 13th day of June, 2025

Before Their Lordships

Muhammed Lawal Garba

Adamu Jauro

Jummai Hannatu Sankey

Moore Aseimo Abraham Adumein

Obande Festus Ogbuinya

Justices, Supreme Court

SC.733/2017

Between

ADETOUN ALAWIYE                                                          APPELLANT                                   And

1. HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY 

2. THE FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENTS

3. SAMPSON ADEBISI FASEMRE 

(Lead Judgement delivered by Honourable Moore Aseimo Abraham Adumein, JSC)

Facts

The Appellant instituted the action at the High Court of the Federal Capital Territory (FCT), seeking amongst other reliefs, a declaration that she is entitled to the statutory right of occupancy over a plot of land measuring 2,100.01 square metres at Plot 856, Cadastral Zone A04, Asokoro, Abuja; a declaration that any purported notice of reinstatement of right of occupancy to the 3rd Respondent dated 10th December, 2009 by the FCT Administration is illegal, null and void.  She also sought orders of perpetual injunction restraining the Respondents from disturbing her interest, rights and quiet possession on the plot, and from committing further acts of trespass on the land. The 1st and 2nd Respondent filed a joint statement of defence, in opposition to the Appellant’s claims. The 3rd Respondent did not file any process.

The case of the Appellant was that she was validly allocated the said Plot 856 by the 1st Respondent by a Right of Occupancy dated 13/1/2006 and she paid all requisite fees in respect of the allocation and subsequently, obtained building plan approval over the land on 19th April, 2007, and had since been in lawful possession of the land consistently paying ground rent on the same until 2009. She claimed that although a Right of Occupancy over the same land was formerly granted to the 3rd Respondent, however, it was validly revoked by the 1st and 2nd Respondent before the land was allocated to her.

In their defence, the 1st and 2nd Respondent claimed that the allocation of the said Plot 856 to the Appellant by the 1st Respondent was done in error, as the same land had previously been allocated to the 3rd Respondent pursuant to a Statutory Right of Occupancy dated 30th December, 2002, which was never revoked, and the 3rd Respondent’s title to the land was still subsisting at the time the land was erroneously allocated to the Appellant. The 1st and 2nd Respondent’s witness testified that when the dispute arose, the 1st and 2nd Respondent attempted to settle the matter amicably between the Appellant and the 3rd Respondent by offering the Appellant an alternative plot of land and payment of N15,000,000.00 as compensation, however, she rebuffed the offer. 

At the conclusion of trial, the trial court delivered its judgement dismissing the Appellant’s claims. Dissatisfied, the Appellant appealed to the Court of Appeal, which unanimously dismissed the appeal. Thereafter, the Appellant filed a further appeal at the Supreme Court. 

Issues for Determination

The Supreme Court adopted the issues distilled by the 1st, 2nd and 3rd Respondents, with some modifications as follows:

i) Whether or not the Court of Appeal was right in affirming the decision of the trial court, notwithstanding that the 3rd Respondent did not participate in the trial court.

ii) Whether or not the Court of Appeal was right in holding that the judgement was in favour of the 1st and 2nd Respondent, and that it was beneficial to the 3rd Respondent.

iii) Whether or not the Court of Appeal was right when it found that both the newspaper publication and the Notice of Reinstatement of the land dispute (exhibit G) in favour of the 3rd Respondent were speculative, and did not prove the Appellant’s title.

iv) Whether or not the alleged failure of the Court of Appeal to consider the Appellant’s reply brief, occasioned any miscarriage of justice.

Arguments

Arguing issues 1 and 2 together, Counsel for the Appellant contended that since the 3rd Respondent was duly served with the processes at the trial court but elected not to enter a defence, then the trial court should have deemed the evidence tendered by the Appellant as admitted by the 3rd Respondent, and rely on the unchallenged evidence in resolving the claim in favour of the Appellant. Counsel argued that the failure of the 3rd Respondent to participate in the proceedings, amounted to an admission of the Appellant’s claims. Counsel for the Appellant also argued that the 1st and 2nd Respondent have no interest in the disputed land and therefore, cannot make a case for the 3rd Respondent.

On issue 3, Counsel for the Appellant argued that the Court of Appeal erred in affirming the trial court’s finding that the Notice of Revocation issued by the 1st and 2nd Respondents to the 3rd Respondent was speculative and that the trial court was right not to have relied on same. Counsel argued that there was sufficient evidence before the court to establish that whatever title the 3rd respondent claimed over the land had been revoked. 

On issue 4, Counsel for the Appellant argued that the lower court failed to address the issue of breach of title over the disputed land and neglected its duty by not pronouncing on two of the issues submitted for determination, thereby occasioning a miscarriage of justice. 

In response to the Appellant’s arguments on issues 1 and 2, Counsel for the 1st and 2nd Respondent argued that since the Appellant’s claim before the trial court was essentially for a declaration of title to land, the Appellant was required to succeed on the strength of her own case, irrespective of the absence of the 3rd Respondent

Responding on issue 3, Counsel for the 1st and 2nd Respondent argued that the Appellant failed to specifically prove that there was indeed, a revocation of the title of the 3rd Respondent over the disputed property, as Exhibit F (newspaper publication) tendered by the Appellant does not constitute a valid notice of revocation.

Counsel for the 1st and 2nd Respondent submitted that the land was validly allocated to the 3rd Respondent, and that the allocation remains subsisting, as it has not been revoked in accordance with Section 28 of the Land Use Act.

Counsel for the 3rd Respondent argued similarly there was no evidence of a valid revocation of the 3rd Respondent’s title to the land, hence his title remains subsisting and the Court of Appeal rightly affirmed the decision of the trial court.

Court’s Judgement and Rationale

Resolving the 1st, 2nd and 3rd issues together, the Supreme Court reiterated the settled position of the law that in an action for declaration of title to land, a claimant must succeed on the strength of his or her own case, and not on the weakness of the defence. 

The Supreme Court held that to resolve an issue on dispute to land where the grant of title to the land relates to the same parcel of land, then the first in time prevails or takes priority. The Court referred to the principle of law expressed in the Latin maxim “prior tempore potior jure” meaning “First in time, stronger in right” or “First in time, preferred in law”, and held that to resolve an issue on dispute to land where competing interests over the same parcel of land emanate from the same source, the earlier grant takes priority. The Apex Court relied on to H. N. O. AWOYEGBE & ANOR. v CHIEF J. E. OGBEIDE (1988) 1 NSCC 491 in which it also held that the reason is because a grantor having successfully divested himself of his title in respect of the disputed piece of land, would have nothing left to convey to a subsequent purchaser under the elementary principle of nemo dat quod non habet, as no one may convey what no longer belongs to him. 

The Supreme Court held that from the facts of the case, it was undisputed that both the Appellant and the 3rd Respondent derived their title to the subject land from the same grantor – the 1st and 2nd Respondent. The Apex Court held that however, the 1st and 2nd Respondent, through whom the Appellant was resting her title to the land in dispute, were clear and equivocal in their claim which they provided oral and documentary proof of, that they had validly granted title of the land to the 3rd Respondent since 2002, but erroneously and inadvertently allocated the same land to the Appellant in 2006 during the subsistence of the 3rd Respondent’s title thereon which was never revoked. The Court held that the Appellant on her part did not adduce any evidence to counter the 1st and 2nd Respondent’s claim, that the 3rd Respondent’s title to the land has not been revoked. 

The Supreme Court held further that by the provisions of Section 28 of the Land Use Act, for any revocation of title to land granted by the appropriate authority to be valid, it must be issued under the hand of a public officer duly authorised by the Governor, and the title holder must be served with the notice of intention of revocation or the certificate issued to him. The Apex Court found that in this case, there is no iota of evidence that any such notice was ever issued to the 3rd Respondent.

The Supreme Court also held that where a certificate of occupancy has been validly issued to a person by the appropriate authority, there is a presumption that the holder of the certificate is the owner of the land in exclusive possession thereof, and the presumption can only be rebutted if it is proved by the evidence that another person had a better title to the disputed land prior to the issuance of the certificate of occupancy.  The Court referred to GRACE MADU v DR BETRAM MADU (2008) 6 NWLR (PT. 1083) 296 at 319-320. 

The Apex Court held that in this case, the Appellant did not lead any evidence showing that the Certificate of Occupancy issued to the 3rd respondent by the 1st and 2nd Respondents was null and void or that it had been properly revoked. The Court also held that Exhibit F and G relied on by the Appellant – a newspaper publication and a Notice of Reinstatement do not constitute valid evidence of a valid revocation and the lower court was right to describe both pieces of evidence as speculative, therefore, since the 3rd Respondent’s title to the land was not revoked, he remains the rightful owner of the land. 

On the second issue, the Supreme Court held that from their pleadings, the 1st and 2nd Respondents were consistent and equivocal that the land in dispute belongs to the 3rd Respondent thereby establishing the 3rd Respondent’s title to the land. The Court found that therefore the judgement of the trial court is in the unfettered favour of the 1st and 2nd Respondents jointly, and also the 3rd Respondent, whose title to the land is dispute is rooted through them. Accordingly, the Apex Court resolved all the live issues against the Appellant, and in favour of the Respondents.

Appeal Dismissed.

Representation

Chief Kanu G. Agabi, SAN, Uchenna Njoku, SAN and others for the Appellant.

Idris Abubakar, SAN and others for the 1st and 2nd Respondent.

Dr Lilian Ojimma and others for the 3rd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)