Mr. Audu Otukpo V. Apa John & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal Holden at Kaduna in appeal no. CA/K/110/1991 delivered on the 14th day of December, 1999 in which the court dismissed the appeal of the appellant and affirmed the decision of the Kaduna State High Court of Justice, Holden at Kaduna in suit no.KDK/KAD/335/1994 delivered on the 20th day of January, 1997 in favour of the respondent who were the plaintiffs in the action.

The action involves a piece of land measuring about 7 x 50 feet which adjoins plot no. A2, Ungwai Television, Kaduna.

The respondents took out a writ of summons against the appellant claiming a declaration that the small piece of land, supra belongs to them, sixty thousand naira (N60,000.00) damages for trespass and injunction.

Appellant counter-claimed for title and an order nullifying and invalidating the certificate of occupancy no. KDH/A/007143, two hundred thousand naira (N200,000.00) damages for trespass and an injunction. The trial court granted the reliefs of the respondents and dismissed the counter-claim.

It is the case of the respondents that their late father, John Agbalikwunu purchased the disputed land from one Mallam Ali and got into possession of same; that after the construction of the dual carriage way from Kaduna town to command secondary school junction, their father wanted to start development of the land only to be confronted by one Audu zakwai who laid claim to the portion now in dispute meaning 50 x 7 feet resulting in a peaceful settlement by which John Agbarikwunu, respondents’ father paid the sum of one thousand (N1,000.00) to the said Audu Zakwai for the disputed piece or portion of the land in full settlement for which Audu Zakwai issued a receipt which was tendered in the proceedings and marked Exhibit 1. After the death of John Agbalikwunu, the appellant, sometime in 1994 laid claim to the piece of land which resulted in the instant suit. Exhibit 2 is the certificate of occupancy obtained by the respondents in respect of the land in dispute, which appellant sought to set aside.

On the other hand, the case of the appellant is that in 1974 he purchased a piece of land at Ungwar Television Kaduna from one Gimba James and built a mud house thereon in which he kept his senior wife while he lived at Kaduri prison Staff Quarters with his second wife; that he completed a second house on the land in 1978; that during the construction of the express way in 1917 part of the land was affected as the first building was demolished, leaving a small piece which appellant used for farming; that the said small piece is the subject of the dispute between the parties.

The issues for determination as identified in the appellant brief filed on 7th November, 2005 by E. O. Aneme, Esq. are as follows.-

“1. Whether the appellant did not prove fraud in the procurement of the certificate of occupancy No.KDH/A007143 i.e. “Exhibit 2″ by the late John Agbalikwunu.

2. Whether from the totality of evidence before the trial court, the respondents proved their claim and the appellant did not prove his counterclaim and the judgment on perverse to warrant the interference of the Court of Appeal.”

The above issues were adopted by learned counsel for the respondents in the respondents brief deemed filed on 24th September, 2008. From the two issues reproduced supra, it is very clear that the appeal is on the facts of the case, not law.

In arguing Issue 1, learned counsel for the appellant submitted that appellant proved the allegation of fraud in the procurement of the certificate of occupancy in question, Exhibit 2, referring to the evidence of appellant at page 58 line 379 where appellant is reported to have said “They must have stolen my plot” and that the same was corroborated by the evidence a at pages 622 and DW5 at 69 and 70 lines 652 – 660; that the above evidence was not challenged.

On the sub-issue of pleading of particulars of fraud as provided under Order 24 Rule 6( i ) of the Kaduna State High Court (Civil procedure) Rules 1987, learned counsel submitted that the particulars need not be itemized; that it is sufficient if sufficient particulars are found in the relevant pleadings showing fraud, for which he referred to paragraphs 18, 20, 33 and 34 of the Statement of defence and urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the respondents submitted that fraud was raised by appellant as an issue to defeat the declaration of title claimed by the respondents and being a criminal allegation, it has to be proved beyond reasonable doubt relying on Section 138(1) of the Evidence Act; Ndoma-Egba vs ACB PLC (2005) ALL FWLR (Pt.283) 152 at 171; Ogbole vs Lawani 2000) FWLR (Pt.187) 844 at 859 etc; that appellant failed to discharge the burden placed on him by law; that appellant has not demonstrated that the finings of the lower courts on the matter are perverse.

It is the further submission of learned counsel for respondent that even though fraud was pleaded, no particulars thereof were supplied by appellant contrary to the provisions of Order 24 Rule 6 of the Kaduna State High Court (Civil Procedure) rules, the case of Adimora vs Ajufor (1988) 3 NWLR (pt.8) 1 at 13; West African Breweries Ltds vs Savannah Ventures Ltd (2002) FWLR (pt. 112) 53 at 74; Okonkwo vs Cooperative and Commerce Bank (Nig) Plc & Ors (2003) FWLR (Pt.154) 457 at 518, and urged the court to resolve the issue against appellant.