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.
- 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.
Before proceeding to decide whether appellant met the standard of proof required in a criminal allegation whether in a criminal matter or civil proceedings – it is necessary to determine whether the issue of fraud was pleaded by appellant as required by the relevant Rules of court. In the respondent’s brief of argument there is no doubt that respondents agree that fraud was duly pleaded by appellant as it was submitted on their behalf in paragraph 5.01 last sentence at page 4 of the brief as follows :-
“We submit therefore, that fraud was therefore not merely raised but raised as an issue to defeat the declaration of title claimed by the respondents”.
However the dispute between the parties in relation to the issue under consideration has to do with the issue as to whether appellant provided particulars of the alleged fraud and whether he proved the allegation beyond reasonable doubt.
Order 24 Rule 6(1) of the Kaduna State High Court (civil procedure) Rules provides that fraud must be specifically pleaded so as not to take the opposite party by surprise.
It is however the case of the appellant that sufficient particulars of the fraud alleged can be inferred from paragraphs 18, 20, 33 and 34 of the Statement of Claim. The question is what is the reaction of the lower court to the issue under consideration At page 186 of the record, the court had this to say inter alia:
“I have carefully considered the averment in paragraph 18, 20, 30 and 39 of the Statement of Defence/Counterclaim where the allegation of fraud was made. The issue of fraud is directly in issue, however the particulars of fraud has not been specified as required by Order 24 Rule 6(1) of the Kaduna State High Court (Civil Procedure) Rules. I also find that the appellant has not proved the allegation of fraud beyond reasonable doubt… The appellant did not prove fraud in the procurement of the certificate of occupancy no.KDH/A/0077143.
What did the trial collect say in relation to the matter At pages 99 – 100, the trial judge found as follows:-
“I was urged to infer particulars of fraud from the counter claim/statement of defence.
By paragraphs 18, 20, 34 and 39 of the statement of defence/counterclaim, fraud has been made an issue. The defendant did not give particulars of fraud. Under Order 24 Rule 6 (1) of the High Court (civil procedure) Rules 1987 fraud has to be specifically pleaded”.
The findings of facts in relation to the issue under consideration by the lower courts are concurrent and are borne out of the evidence on record. Learned counsel for appellant had also not demonstrated that the said findings are perverse as required by law.
In my judgment, the fact that appellant has urged the court to infer from the paragraphs of the statement of defence/counter claim particulars of fraud is a clear admission that the said particulars had not been specifically pleaded otherwise there could be no need to inter them.
Secondly, it is trite law that in any proceeding, whether criminal or civil where allegation of the commission of a crime is an issue the allegation must be proved beyond reasonable doubt see Section 138(1) the Evidence Act. In the instant case the criminal allegation relate to the commission of the crime of fraud by the respondents in relation to the procurement of the certificate of occupancy in question which appellant failed to prove.On Issue 2, learned counsel for appellant submitted that the respondents failed to prove their case on the balance of probabilities as required by Section 137 (1) of the Evidence Act; that it was rather the appellant who proved his counterclaim and ought to have been given judgment; that respondent failed to prove their root of title either by evidence of traditional history or documentary evidence; that the alleged sale of the property to the father of the respondents was not proved; that the sum of N1,000.00 allegedly paid for the land in Exhibit 1, was “kola” and not a consideration for the land as a result of which counsel submitted that there was no valid contract of sale of the said land; that the used of Exhibit 2, the certificate of occupancy, to prove title is erroneous as the same was obtained by fraud; that appellant has an equitable interest in the land haven built and farmed thereon after entering into an agreement with the original owner; that there is no evidence of possession to entitle the respondents to judgment.
On the other hand, learned counsel for the respondents submitted that the lower courts were right in holding that the respondents proved their case by evidence and therefore entitled to judgment; that the onus is on the respondents to prove their title which they discharged; that the case of the respondents is based on sale of land as means of acquiring title thereto; that Exhibit 1 is evidence of the sale, which confirmed payment for the transaction; that evidence of root title had been concurrently found by the lower courts and have not been shown to be perverse. He therefore urged the court not to disturb the said findings; that there is evidence of acts of ownership by the father of the respondents and the respondents including farming thereon; that appellant only started laying claims to the land four years after the death of the father of the respondents; that appellant failed to establish his counter-claim and as such his claim was rightly dismissed.
It is settled law that title to land can be proved in any of the following ways:-
(a) by traditional evidence which is usually based on history of the people;
(b) by documents of title such as conveyance, etc;
(c) acts of possession spanning over a period of years;
(d) by acts of ownership exercised over the land over a period of time; and,
(e) proof of possession of adjacent or connected land under Section 46 of the Evidence Act, Cap. 112 Laws of the Federation, 1990.
The above principles have been stated by this court in a number of cases including Idudun vs Okumagba (1976) NMLR 200 at 210 – 211; Fasoro vs Beyioku (1988) 2 NWLR (Pt.76) 261 at 271; Ezeoke vs Nwaebo (1988) 1 NWLR (Pt.72) 616 at 628.
The five ways of proving title to land in an action for declaration of title are tied to the root of title of the claimant/plaintiff in the sense that it is the way the plaintiff/claimant proves or establishes his root of title. In short, the root of title of a plaintiff may be traceable to/or through the traditional/historical evidence of the people/land in question, or through the documents conferring title on the plaintiff or through acts of ownership exercised by the plaintiff and/or his predecessor(s) in title, or by acts of long possession and undisturbed possession or by proving that the plaintiff/claimant is in possession of adjacent or connected land such as to raise a strong possibility that the land in dispute must of necessity belong to the plaintiff/claimant.In the instant case, both parties are agreed that the claim of the parties particularly the respondents who were the plaintiffs at the trial court is based on sale of the portion of land in dispute. Exhibit I was tendered and admitted as evidence of the payment of N1,000.00 for the particular partition of the land concerned. The argument by learned counsel for appellant that the said Exhibit 1 is a “kola agreement” is not supported by evidence accepted and acted upon by the lower courts.
It is settled law that a plaintiff in an action for declaration of title to land must succeed on the strength of his case and not on the weakness of the defence though where the case of the defence supports that of the plaintiff, the plaintiff can take advantage of same in establishing his claim – see Woluchem vs Gudi (1981) 5 SC 291; Mogaji vs Cadbury Nig. Ltd (1985) 2 NWLR (Pt.7) 393.The respondents tendered Exhibit 2, a certificate of occupancy in respect of the land in dispute, which appellant contends that it was obtained by fraud but has to prove same as held in issue no. I supra. However, a certificate of occupancy, as has been held by this court in a number of cases, is a prima facie evidence of title or possession which is., however not a conclusive proof of title to the land it relates – See Registered Trustees Mission vs. Mrs. E. I. Oloweni (1990) 6 NWLR (Pt.158) 514.The question is what is the evidence on record in proof of the case of the parties and what is the reaction of the lower court thereto
The case of the respondents is that their father bought the land from from on Audu Zakwai and later obtained a certificate of occupancy in relation thereto; that they had been on possession of the land until 1994 when their peaceable possession was disturbed by the appellant. The trial judge accepted the evidence adduced and stated, inter alia, at page 100 of the record as follows:-
“The PW1 traced the root of title of late John Agbalikwunu to a sale agreement between him and one Malam Ali. She also gave evidence as to acts of ownership. She has been corroborated by PW2. The PW2 and PW3 also gave credible evidence as to the making of Exhibit 1. The PW5 only testified as to the fact that she grew up and saw her late father (John Agbalikwunu) on the land. The PW4 tendered the certificate of occupancy Exhibit 2.”
The trial court concluded its findings at page 102 as follows:-
“The plaintiffs and their witness have led credible evidence of title. It is my view that the plaintiffs have proved their case by way of evidence of credible witnesses”.
After comparing the case of the plaintiffs with that of the defendant, the trial judge rejected the case of the defendant/counter claimant in the following words:
“It is my finding of fact that the defendant (DW1) was confused or was not sure of the date he bought the piece of land from Gimba James. Initially he said 1970, then he said 1974 then he said he cannot remember the date. The case has to be adjourned. On the adjourned date, he said it was 21st September, 1974.
The alleged sale agreement was rejected in evidence. The DW2 wanted to salvage the situation. He said that he wrote the sale agreement for parties. That it was on 21st February, 1974 that the agreement was written. He gave his age as 30 years on the day of his testimony. That means he was 9 years old when he wrote the agreement for the parties. He does not appear to me to be a witness of truth. The DW3 only testified on the efforts to resolve disputes of the parties. He know nothing about the root of title. The DW4 on the other hand believed that the defendant owns the land. Her believe (sic) was based on what the defendant told her o her trip to Zarri. Another ground was that the defendant granted her permission to erect a temporary security guard’s room and also to dump the scrap of a vehicle. I have earlier said that those pieces of evidence are to be expunged.”
It is settled law that it is the duty of the trial judge to evaluate the evidence placed before him and to ascribe probative value thereto. It is also settled law that an appellate court can only intervene where the trial judge fails to evaluate the evidence properly.In the instant case, the lower court after considering the evaluation of evidence and findings of the trial court supra, case to the following conclusion; at page 190 of the record:
“The findings of the trial judge, in my opinion is apt, it is supported by the totality of the evidence adduced. It is not perverse. There is no reason whatsoever to tamper with his findings. From the evidence adduced by both parties, it is clear that the respondents have a better title and are entitled to judgment. see Aromire v. Awoyemi (1972) 1 ALL NLR 101…”
The above constitute concurrent findings of facts by the lower courts. Where there is no clear evidence of error in law or fact which may lead to or occasion a miscarriage of justice, this court will not interfere with the concurrent findings of facts. For this court to so interfere, it must be satisfied by the appellants that there exists substantial error apparent on the face of the record of proceedings showing that the said findings are perverse, which has not been satisfactorily demonstrated in this case – see Ibodo vs Enarofia (1980) 5 – 7 SC 42: Ogundiyan vs State (1991) 4 SC 160.It is my judgment that the above findings of the lower courts are adequately supported by evidence on record and as such I see no reason why the findings should be disturbed by this court.
In conclusion I find no merit whatsoever in the appeal which is consequently dismissed by me.
The judgment of the lower court in appeal no. CA/K/110/97 delivered on 14th December, 1999 is hereby affirmed by me with N50,000.00 costs in favour of the respondents.