Home » Nigerian Cases » Court of Appeal » Abubakar U. Birma & Ors V. Ahmed Damcida & Anor (2016) LLJR-CA

Abubakar U. Birma & Ors V. Ahmed Damcida & Anor (2016) LLJR-CA

Abubakar U. Birma & Ors V. Ahmed Damcida & Anor (2016)

LawGlobal-Hub Lead Judgment Report

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

This appeal is against the judgment of the High Court of Kano State in Suit No K/961/2003 delivered by Honorable Justice Wada A. Omar Rano on the 1st of February, 2010. The action in the lower Court was commenced by late Alhaji Ibrahim Damcida against the Appellants, who are the administrators of the Estate of late Alhaji Umar Sanda Birma. The claims of late Alhaji Ibrahim Damcida, as plaintiff, against the Appellants, as defendants, were for:

i. A declaration that the plaintiff is the lawful owner of the said two premises known as No. 13E, Bello Road, Kano covered by Certificate of Statutory Right of Occupancy No. COM/RC/82/380 and premises known as No 148, Hotoro GRA, Kano covered by Certificate of Statutory Right of Occupancy No. KN/4999.
ii. A declaration that the said two properties were entrusted by the plaintiff to the deceased, late Alhaji Unamru Sanda Birma, to manage and control and the authority did not vest the title to the two properties unto the deceased.
?iii. A declaration that the authority given to the said deceased in his capacity as the custodian of the

said properties is not enough to confer such right on the defendants to apply for letters of administration over the said two properties.
iv. A declaration that the defendants have no right whatsoever to take over or control the said two properties without the prior consent of the plaintiff.
v. A declaration that the Letters of Administration dated the 27th of May, 2003 which was subsequently amended by inserting the name of the fourth defendant without a valid order of Court makes the entire Letters of Administration ineffective and null and void.
vi. An order directing the defendants to render full account of all transactions in respect of the said two properties since they assumed their positions as administrators and administratrix of the said two properties.
vii. In the alternative, an order striking out the names of the two properties from the list of properties to be administered by the defendants as contained in the Letters of Administration issued by the Probate Registrar, Kano High Court dated 27th of May, 2003.
viii. An order directing the defendants not to do anything regarding or pertaining to the said two properties until

the final determination of this matter.
ix. An order of injunction restraining the defendants, their agents, associates in whatever designation called from taking any step or further steps in whatsoever manner in respect of the said two properties known as No. 13E, Bello Road, Kano covered by Certificate of Statutory Right of Occupancy No. COM/RC/52/380 and property known as No 148, Hotoro GRA, Kano covered by Certificate of Statutory Right of Occupancy No. KN/4999, pending the determination of this suit.
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The Appellants counterclaimed and their claims were for:
i. A declaration that the property known and called No. 13E, Bello Road, Kano covered by Certificate of Statutory Right of Occupancy No. COM/RC /82/380 belonged to Alhaji Umaru Sandra Birma (deceased) and formed part of the Estate of the deceased.
ii. A declaration that the property known as No 148, Hotoro GRA, Kano and covered by Certificate of Statutory Right of Occupancy No. KN/4999 belonged to Alhaji Umaru Sandra Birma (deceased) and formed part of his Estate.
iii. An order of perpetual injunction restraining the plaintiff, his heirs, assigns or representatives from interfering or

intermeddling with two properties.
iv. An order compelling the plaintiff to render comprehensive accounts of the sale of Global Ventures Limited.
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The case of late Alhaji Ibrahim Damcida on the pleadings was that the late father of the Appellants, Alhaji Umaru Sanda Birma, was his friend dating back 1951 and he was a benefactor of the late father of the Appellants and that in 1970, he advised the late father of the Appellants to incorporate the company called Birma General Supplies Ltd (hereinafter called the company) which commenced the business of selling cement, iron rods and furniture and goods were supplied to the company for sale based on the personal guarantee he gave to the suppliers and the company was initially managed by one Alhaji Usman Garba and later by the late father of the Appellants. It was his case that he was the sole financier of the business of the company through loans he raised from his bankers and he used his personal connections to ensure that the company enjoyed good patronage from companies such as Leventis Nigeria Ltd and other major trading companies. It was his case that sometime in 1974, he, in the presence of Alhaji Usman

Garba, requested the late father of the Appellants to go, in the company of one Alhaji Mohammed Baffa, to inspect the property at No 13e, Bello Road, Kano and that the late father of the Appellants did as requested and reported to him that the property was being offered for sale by ‘I?. Kahale and Company Ltd for N40,000.00. It was his case that he directed that the property be purchased for him from funds that the late father of the Appellants held in trust for him in an account UBA and that a bank certified cheque was raised by UBA and collected by Alhaji Usman Garba who paid same to the vendor of the property and collected the statutory certificate of occupancy No 3825 which was handed to the late father of the Appellants.
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It was the case of late Alhaji Ibrahim Damcida that he worked in the Federal Civil Service at this time and held the position of Permanent Secretary in the Ministries of Commerce and Industries, Finance, Trade and Defence at different times and that though the account at UBA was in the name of the late father of the Appellants, the funds therein were made up of the several amounts of money he sent to the late father of the

Appellants at different times for warehousing, to the knowledge of Alhaji Usman Garba. It was his case that after the purchase of the properly, he instructed that the main business of the company be moved into the property as its head office and that the stores and the warehouse in the property should be let out and the rents therefrom should be held in trust for him by the late father of the Appellants and that the relationship between him and the late father of the Appellants was based on trust, and was not documented, and that he did not ask for the title documents of the property from the late father of the Appellants until sometime in 2002. It was his case that at a point in time the late father of the Appellants verbally requested permission from him to use the property as collateral to raise a loan from UBA and he granted the request and that the late father of the Appellants used the opportunity to convert the property and made the records of the property at the Ministry of Land and Physical Planning appear as if the property was directly granted to him, the late father of the Appellants, by Government, and he proceeded to state the steps the late

father of the Appellants took to do so.
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It was the case of late Alhaji Ibrahim Damcida on the pleadings that sometime in 1990, the business of the company became stagnant and it was agreed that the property be let out and the property, with his approval, was leased to Chartered Bank and the late father of the Appellants remitted to him the sum of N500,000.00 per annum as the rents paid by the Bank and that when the lease to the Bank was renewed for a further period of eight years from the 1st of October 2002 and the late father of the Appellants again remitted to him the sum of N4,468,750.00 representing five years rent, less withholding tax, paid by the Bank. It was his case that in fact the company had cause to pay rents in the sum of N120,000.00 to him for the use of the property for the year 1985 /86 and that at several meetings of the Board of the company, and attended by Alhaji Usman Garba, where the issue of the ownership of the property was discussed, the late father of the Appellants never claimed to be the owner of the property and he was always acknowledged as the owner of the property and rents were duly paid to him. It was his case that at a

point in time, the late father of the Appellants, at his request, caused to be prepared a deed of assignment of the property in favour of Damson Properties Ltd, a company in which he held the controlling shares, and that after the execution of the deed, the late father of the Appellants collected it for purposes of stamping and registration, but which was never done until the demise of the late father of the Appellants and the deed was retrieved from office of the company thereafter in the presence of one Mr. Solomon Otuonye and Baba Birma.

It was the case of late Alhaji Ibrahim Damcida on the pleadings that the said Mr. Solomon Otuonye was the personal assistant and confidant of the late father of the Appellants and that he later discovered that the late father of the Appellants, without his approval, used the property as collateral to borrow the sum of N10 Million from Chartered Bank on the 16th of December 1999 and that the loan was amortized by the use of the three years rents outstanding from the Bank on the eight year lease of the property made in its favour. It was his case that there was another company called Global Ventures Ltd (hereinafter

called the other company) in which the late father of the Appellants, himself and some expatriates had interest and at one of the meetings of this other company, it was decided that the business of the other company be extended to Kano and, for this, it was decided that a permanent place for building of staff quarters be acquired and developed. It was his case that he, as Chairman of the other company, directed the late father of the Appellants to look for a vacant piece of land and that in furtherance of the directive, the late father of the Appellants in late 1980/early 1981 negotiated for the purchase of the plot of land known as Plot 148 in Hotoro, Kano and covered by a certificate of occupancy No KN4999 from one Alhaji Mansur Mahmoud Yola for the sum of N20,000.00 and which sum he paid and the original certificate of occupancy of the land was handed to him by the late father of the Appellants and that he thereafter advanced various sums of money to the late father of the Appellants for the development of three sets of bungalows with boys’ quarters on the land. It was his case that after the purchase of the land, no step was taken by either himself or

Global Ventures Ltd to recertify the old certificate of occupancy No KN4999 or register a deed of assignment to cover the transaction and that the land still bore the name of Alhaji Mansur Mahmoud on the index card in the Ministry of Land and Physical Planning and that at no time did the late father of the Appellants contest or challenge his ownership of this property.

In response, the Appellants, in their pleadings, denied the entire case of late Alhaji Ibrahim Damcida and it was their case that their late father was a man of considerable means and was a former Deputy Governor of Borno State in 1983 and held Federal Government appointments and was a successful businessman and majority shareholder and director in many companies, including blue chip companies and he owned several landed properties in Biu, Maiduguri, Kaduna and Kano and that he was turbaned as the Birma of Biu in 1995. They conceded that the late Alhaji Ibrahim Damcida was a close associate of their late father, but catalogued certain alleged ills that late Alhaji Ibrahim Damcida carried out after the death of their late father and it was their case that their late father was the sole

financier of the company, Birma General Supply Ltd, and that he sourced the patronage enjoyed by the company through his personal efforts and that the late Alhaji Ibrahim Damcida neither provided the funds nor was he aware of the circumstances and arrangement under which their late father purchased the property at No 13e, Bello Road, Kano and he was not a party to the negotiation and did not make any contribution to the purchase of the property.

It was the case of the Appellants that late Alhaji Ibrahim Damcida never gave any funds to their late father to keep in trust for him and that Alhaji Usman Garba was only an employee in the company and he left the employment of the company in bitter circumstances and that their late father did not require the assistance of anyone to purchase the property and the property belonged to him and he did not require the permission of anyone to deal with the property as he pleased. It was their case that a formal deed of assignment evidencing the purchase of the property was prepared, executed and registered by their late father well before 1978 and that while it was indeed possible that their late father sent monies to

the late Alhaji Ibrahim Damcida, it was for foreign exchange which the late Alhaji Ibrahim Damcida assisted their late father to source for his frequent foreign business travels and that at no time did the company pay rents to late Alhaji Ibrahim Damcida for the property nor was the issue of payment of rents for the property ever discussed at the Board Meeting of the company.
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It was the case of the Appellants that at no time was a deed of assignment or any other document prepared by the their late father in favour of a company called Damson Properties Ltd over the property and that no such document was in the possession of their late father and that Mr. Solomon Otuonye referred to by late Alhaji Ibrahim Damcida was not a confidant or personal assistant to their late father, but an unscrupulous and treacherous individual who would do anything for money and they proceeded to state the alleged treacherous acts of the said Mr. Solomon Otunonye. It was their case that though their late father was a major shareholder in the company called Global Ventures Ltd, it was not agreed at anytime that their late father would transfer his property at Hotoro to this

company and that their late father met, negotiated and paid for the purchase of the Hotoro property from Alhaji Mansur Mahmoud Yola personally and that neither Global Ventures Ltd nor late Alhaji Ibrahim Damcida provided or gave any funds to their late father for either the purchase or the development of the Hotoro property. It was their case that at no time did their late father forward or give the certificate of occupancy of the Hotoro property to the late Alhaji Ibrahim Damcida and that their late father was the owner of the two properties on Bello Street, Kano and Hotoro, Kano and they formed part of his Estate and have since been distributed in accordance with Islamic Law.
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The matter proceeded to trial and in the course of which the late Alhaji Ibrahim Damcida called seven witnesses and tendered several exhibits in proof of his case and the Appellants called five witnesses and similarly tendered several exhibits in proof of their case. The records of appeal show that the late Alhaji Ibrahim Damcida withdrew his claim for ownership of the property known as No 148, Hotoro GRA, Kano covered by Certificate of Statutory Right of Occupancy No KN4999 in the

course of trial. At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court entered judgment in favour of late Alhaji Ibrahim Damcida and granted all his claims in respect of the property known as No 13E, Bello Road, Kano covered by Certificate of Statutory Right of Occupancy No COM/RC/82/380, and it struck out the claims in respect of the property known as No 148, Hotoro GRA, Kano covered by Certificate of Statutory Right of Occupancy No. KN4999. The lower Court dismissed the counterclaim of the Appellants.
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The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 3rd of February, 2010 and containing five grounds of appeal against it. The late Alhaji Ibrahim Damcida passed away in the course of this appeal and he was substituted with the Respondents. Also in the course of the appeal, the Appellants were granted leave by this Court to lead further evidence by tendering the certified true copy of the deed of assignment dated the 20th of January,1974 executed between T. Kahale and Company Ltd and their late father in respect of the

property known as No 13E, Bello Road, Kano covered by Certificate of Statutory Right of Occupancy No. COM/RC/82/380 and the document was admitted into evidence by the Court. In arguing the case of the Appellants in the appeal, their Counsel filed a further amended brief of arguments dated the 27th of April, 2015 on the 29th of April, 2015. Counsel to the Respondents responded by a brief of arguments dated the 18th of May, 2015 and filed on the 21st of May, 2015. Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions in the appeal.

Counsel to the Appellants formulated two issues for determination in this appeal and these were:
i. Whether from the evidence before the trial Court the Respondents successfully discharged the burden of proof required for establishing title to property as laid down by the Supreme Court in the case of Idundun Vs Okumagba, and affirmed in several other decisions.
ii. Whether the trial Court was right in dismissing the counterclaim of the Appellants in its entirety when the Respondent offered no defence to part of the counterclaim.
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In

arguing the first issue for determination, Counsel to Appellants stated that from the nature of the claims before the lower Court and the tenor of the testimony of late Alhaji Ibrahim Damcida as the seventh plaintiff witness, the cause of action in the matter was title to the properties at No 13e, Bello Road, Kano and No 148, Hotoro Quarters Kano. Counsel reiterated the established legal principle that title to property can be proved in any of the five ways as laid down in the case of Idundun Vs Okumagba (1976) 9-10 SC 227 and he stated the five ways and that the Respondents led no evidence to establish any of the five ways in asserting their claims to the said properties. Counsel x-rayed the testimony of the third plaintiff witness in the lower Court, one Kabiru Mansur Yakasai, the Chief Lands Officer in the Kano Ministry of Lands and Physical Planning and stated that the core of the testimony of the witness was that from the records available in the Ministry, the owner of the property at No 13e, Bello Street, Kano was the late father of the Appellants and that the name of Alhaji Ibrahim Damcida was not anywhere in the records on the property, and that the

documents tendered by the witness catalogued the several acts of ownership, including mortgage transaction, carried out by the late father of the Appellants with regards to the property over a sufficient period of time to warrant the inference of ownership.

Counsel stated that in entering judgment in favour of the Respondents, the lower Court, relying on two exhibits, Exhibits 6 and 9, and the testimonies of the fifth to the seventh plaintiff witnesses, found that the Respondents proved title to the property at No 13e, Bello Street, Kano by the third mode of proving title to land, i.e. by acts of selling, leasing, renting out all or part of the property. Counsel stated that the third mode of proving title to property has an important proviso to it and it is that ownership is established not by isolated acts, but by acts extending over a sufficient length of time and numerous and positive enough as to warrant the inference that the person is the true owner and he referred to the cases of Idundun Vs Okumagba supra, Nwabuoku Vs Onwordi (2006) All FWLR (Pt. 331) 1236 and Madu Vs Madu (2008) All FWLR (Pt. 414) 1604. Counsel thereafter traversed through the

contents of Exhibits 6 and 9 and the testimonies of the fifth, sixth and seventh plaintiff witnesses and stated that they did not show acts which extended over a sufficient length of time and were be numerous and positive enough as to warrant the inference that the Respondents were the true owners of the property and that what they showed at best were one or two isolated acts and that these cannot be the basis for drawing inference of ownership and he referred to the cases of Achiakpa Vs Nduka (2001) FWLR (Pt. 71) 1805 and Kalu Vs Onwuegbu (2008) All FWLR (Pt. 435) 1713.

Counsel stated that the testimony of the fifth plaintiff witness on the purchase of the property was at variance with the case of the Respondents on the pleadings and that there were material contradictions in the between the evidence of fifth and seventh plaintiff witnesses on the date of purchase of the property which they said was in 1974 and the contents of Exhibits 15 and 16 which showed that the late father of the Appellants purchased the property in 1973, but that the lower Court ignored the documents. Counsel stated that the evidence of the sixth plaintiff witness could not have

been of any value to the case of the Respondents because he was not there in 1974 when the Respondents said that the property was purchased, and he only joined the services of Birma General Supplies Ltd in 1985, and that the bulk of his evidence fortified the case of the Appellants that their late father owned the property. Counsel stated that there was no credible evidence on record to sustain the claim of the Respondents for ownership of the property and that the lower Court was thus in error when it granted the claims of the Respondents as regards the property at No 13e, Bello Street, Kano. Counsel urged this Court to resolve this issue for determination in favour of the Appellants.

On the second issue for determination, Counsel reproduced the claims of the Appellants on the counterclaim and he traversed through the contents of the exhibits tendered by the Appellants in proof of their case, particularly Exhibits 15,16 and 17, as well as the deed of assignment admitted as further evidence by this Court and stated that they showed clearly that the property at No 13e, Bello Street, Kano was purchased by the late father of the Appellants from the owners of

the property. Counsel stated that the deed of assignment was dated the 20th of January,1974 and was registered at the Lands Registry on the 31st of January, 1974 and that the document, being over twenty years old at the date it was admitted into evidence, enjoyed the presumption of genuineness provided for in Section 155 of the Evidence Act and must be accorded the highest of probative value and that when coupled with the contents of the file of the property in the Land Registry, and which was tendered as Exhibit 2, it shows beyond doubt that the property belonged to the late father of the Appellants. Counsel stated that the Appellants satisfied the second and third modes of proving ownership of property as laid down in the case of Idundun Vs Okumagba supra.

With respect to the property known as No 148, Hotoro GRA, Kano covered by Certificate of Statutory Right of Occupancy No KN/4999, Counsel stated that the lower Court struck out the claims of the Respondents as they related to the property because they abandoned their claims to the property in the course of trial and that the lower Court overlooked the fact that the Appellants counterclaimed for the

ownership of the properly and that the parties had joined issues in respect of the ownership of the property. Counsel stated that a counterclaim is a separate action and that the five defence witnesses testified on the ownership of the property by the late father of the Appellants and that thus, once the Respondents abandoned their claim of ownership to the property, the lower Court ought to have enter judgment in their favour in respect of the property and should not have dismissed the counterclaim. Counsel urged this Court to also resolve this issue for determination in favour of the Appellants.

Counsel concluded his arguments by urging this Court to find merit in the appeal and to allow same and to consequent thereon set aside the judgment of the lower Court and dismiss the claims of the Respondents and enter judgment for the Appellants on the counterclaim.
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On his part, Counsel to the Respondents distilled three issues for determination in this appeal and these were:
i. Whether from the pleadings filed in this matter and evidence led before the trial Judge by the parties it is correct to say that title to the property situate at No 13e, Bello

Road Kano and covered by Statutory Right of Occupancy No COM/RC /82/380 has been established as belonging to the Respondents.
ii. Whether the learned Trial Judge was wrong in reaching a conclusion that the counterclaim of the Appellants had no merit.
iii. Whether based on the evidence before the trial Court it is correct to say that the trial Judge was right to set aside the issuance of the Statutory Right of Occupancy No COM/RC/82/380 to the late father of the Appellants.

In arguing the first issue for determination, Counsel stated that the position of law canvassed by the Appellants, both before the lower Court and in this appeal, and which was anchored on the decision of the Supreme Court in the case of ldundun Vs Okumagba supra was not applicable to the case as the facts upon which that case was decided were not the same as or present in the facts of this case. Counsel stated that the case of Idundun Vs Okumagba supra dealt with a situation where a party predicated his case of ownership of land on evidence traditional history which dealt with facts of historical origin of the land and of its founding rather than with the issue of

acquisition of title to a piece of land and that there is a distinction between the several ways in which title in land can be acquired and the ways in which such acquisition can be proved and that the case of ldundun Vs Okumagba dealt with matters of evidence rather than with question of substantive law of acquisition of title and he referred to the case of Adisa Vs Oyinwola (2000) 6 SCNJ 290.

Counsel stated that in the instant case, the lower Court arrived at its decision that the Respondents established on the balance of probabilities that they acquired title to the property in dispute on the basis of the testimonies of the fifth, sixth and seventh plaintiff witnesses and the evidence of the second plaintiff witness as illustrated in Exhibits 2, 4 and 4A. Counsel stated that the parties joined issues on how the late father of the Respondents acquired title to the said property and that the Respondents led evidence through the fifth plaintiff witness on the point and he thereafter traversed though the testimony of the witness, including his oral evidence of the discussions held at the Board Meetings of Birma General Supply Ltd and stated that such oral

evidence was in order in the circumstances as there was evidence that the minutes of the meetings were with the Appellants and that the Appellants were served with a notice to produce same and he referred to the case of UBA Vs Yawe (2000) 8 NWLR (Pt. 670) 739. Counsel stated that Exhibits 5, 6,7 and 8 were tendered through this witness and that the testimony of the witness established that the consideration for the property was paid by the late father of the Respondents through the late father of the Appellants and that it also confirms that Birma General Supply Ltd was a tenant in the property and it paid rents to the late father of the Respondents and that these unchallenged evidence of the fifth plaintiff witness established the facts of the acquisition of the property in dispute by the late father of the Respondents and that this Court should so hold and find that the case of Idundun Vs Okumagba was inapplicable.
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Counsel stated that the evidence of the fifth plaintiff witness was corroborated by the testimony of the sixth plaintiff witness and he also traversed through the evidence rendered by the witness at the trial and said that it was obvious that

the evidence unequivocally corroborated that of the fifth plaintiff witness on the acquisition of the property by the late father of the Respondents. Counsel stated that the late father of the Respondents was the seventh plaintiff witness and that the witness gave evidence of his acquisition of the property in dispute and be again traversed through the evidence and noted the fact that the witness tendered Exhibits 9 and 11 and stated that Exhibit 9 confirmed the payment of rents by Birma General Supply Ltd to the late father of the Respondent and that this document was a clear acknowledgement of the ownership of the property by the late father of the Respondents and was sufficient, alone, to satisfy the onus of proof on the Respondents in the lower Court. Counsel stated that the evidence of all these witnesses and of the exhibits were very well and rightly considered by the lower Court before it came to the conclusion that the Respondents established their case of title to the property in dispute.
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Counsel stated that the lower Court was on firm ground when it rejected the testimonies of the first, second, third and fifth defence witnesses on the

ground that none of them witnessed the transaction of the purchase of the property in dispute because the witnesses were minors at the time and that moreover their testimonies that their late father purchased the property from the vendor was punctured by the testimony of the second plaintiff witness who stated that there was no evidence of assignment of the property from the vendor to the late father of the Appellants in the property register. Counsel stated that from the evidence on the record there was a fundamental discrepancy regarding the evidence of the ownership of the property in dispute by the late father of the Appellants and that the lower Court was perfectly in order when it preferred the evidence of the Respondents over that of the Appellants and he urged this Court to uphold the findings of the lower Court and to resolve this issue for determination in favour of the Respondents.

On the second issue for determination, Counsel stated that the Respondents filed a defence to counterclaim wherein they contested the claims of the Appellants and that a counterclaim was for all purposes a separate and independent action and a counterclaimant would

succeed only on the strength of his case by adducing cogent and credible evidence in support thereof and he referred to the case of Ogbonna Vs AG. Imo State (1992) 1 NWLR (Pt. 220) 647. Counsel stated that after a review of the evidence and the findings made by the lower Court that the Respondents made out a better case that the Appellants on the ownership of the property at no 13e, Bello Road, Kano, the counterclaim of the Appellants for declaration of ownership to that property must necessarily fail and he referred to the case Ogbonna Vs AG. Imo State supra.
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With regards to the property at 148, Hotoro Quarters, Kano, Counsel referred to the evidence of late Alhaji Ibrahim Damcida as seventh plaintiff witness and stated that the Respondents abandoned their claim for the property on the ground that the proper person to sue for the declaration of ownership of the property was Global Ventures Ltd and which company was still an existing entity and that they intend to file an appropriate action in that direction. Counsel stated that Global Ventures Ltd was not joined in the matter as a party and that the lower Court was thus handicapped in exercising

jurisdiction of over the counterclaim of the Appellants for a declaration of ownership of the property as proper parties were not before the Court and he referred to the case of Madukolu Vs Nkemdilim (1962) 2 All NLR (Pt. 2) 582. Counsel stated that the lower Court was thus correct when it dismissed the counterclaim of the Appellants in its entirety and he urged this Court to resolve the second issue for determination in favour of the Respondents.

On the third issue for determination, Counsel stated that lot of emphasis was placed by the Appellants on the certificate of occupancy obtained by their late father in his name over the property at No 13e, Bello Street, Kano and which was tendered as Exhibit 17 and that it was the law that the mere possession of a certificate of occupancy over a property was not by itself sufficient to establish title to the said property and that it must be established by essential and cogent evidence that the title was acquired through due process recognized by law. Counsel stated that the sum total of the evidence of the defence witnesses called by the Respondents was that their late father purchased the property and that

they found the title document while taking an inventory of the documents in his filing cabinet after his death, but that contrary to the assertion of purchase of the property, their late father stated in his application for the certificate of occupancy, as contained in Exhibit 2, the property file, that he obtained the property by direct grant from Government. Counsel stated that when the evidence of the defence witnesses is put side by side with the case made out by the Respondents in their exhibits and testimonies of their witnesses, the only conclusion derivable was that the late father of the Appellants neither purchased the property nor did he obtain a direct grant from the Government and that the Appellants thus failed to show how their late father validly acquired the title covered by the certificate of occupancy and that the lower Court thus correct when it set aside the certificate of occupancy and he referred to the case of Eso Vs Adeyemi (1994) 4 NWLR (Pt. 340) 558.

Counsel stated that the deed of assignment admitted as further evidence by this Court did not add value to the case of the Appellants because in the pleadings that formed the basis of

the trial, the Respondents averred and adduced evidence at trial to prove that the relationship between their late father and the late father of the Appellants was based on trust and that the late father of the Appellants was in custody of the title documents of the property in dispute and he never showed or indicated at any time that the property in dispute belonged to anybody apart from their late father. Counsel stated that that the above position was proved by the document admitted as Exhibit 11 and that the admission of a document as further evidence on appeal did not mean that the appeal must succeed on that basis and the admitted evidence must be considered in the light of the other evidence already on record and he referred to the case of Obasi Vs Onwuka (1987) 3 NWLR (Pt. 61) 364. Counsel stated that the issue before the lower Court was whether the late father of the Appellant purchased the property in dispute with his own funds and that the presumption that enured in favour of the deed of assignment, admitted as further evidence, under Section 155 of the Evidence Act was as to the genuineness of the signature, attestation and execution of the document

and not as to the correctness of its contents and he referred to the case of Osawe Vs Osawe (1991) 5 NWLR (Pt. 194) 710. Counsel urged this Court to resolve this issue in favour of the Respondent.

Counsel concluded his arguments by urging this Court to dismiss the appeal and to affirm the judgment of the lower Court.

Reading through the records of appeal, the judgment of the lower Court and the arguments contained in the briefs of arguments of the parties, it is the view of this Court that there are two issues for determination in this appeal. These are:
i. Whether from the pleadings and the evidence led by the parties, the lower Court was correct when it found that the Respondents led cogent and credible evidence to prove that their late father, rather than the late father of the Appellant was the owner of the property at No 13e, Bello Road, Kano.
ii. Whether from the pleadings and the evidence led by the parties, the lower Court was correct when it dismissed the counterclaim of the Appellants in its entirety.
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This appeal will be resolved on these two issues for determination and the two issues for determination shall be considered

seriatim.

Issue One
The complaints of the Appellants on the first issue for determination in this appeal and the response of the Respondents thereto invite this Court to examine the evaluation of the evidence of the parties carried out by the lower Court on the question of the ownership of the property at No 13e, Bello Road, Kano. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (Pt. 1256) 574, Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt. 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt. 1266) 1.
It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of

evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo Vs Nigerian Army (2004) 2 NWLR (Pt. 857) 249, Oyekola Vs Ajibade (2004) 17 NWLR (Pt. 902) 356, Imoh Vs Onanuga (2013) 15 NWLR (Pt. 1376) 139 and Al-Mustapha Vs State (2013) 17 NWLR (Pt. 1383) 350.

In resolving the issue of who between the late father of the Respondent, Alhaji Ibrahim Damcida, the erstwhile plaintiff, and the late father of the Appellants, Alhaji Umaru Sanda Birma, was the owner of the property at No 13e, Bello Street, Kano, the lower Court stated in the judgment thus:
‘… the question is, who between the late Alh. Umaru Sanda Birma and the plaintiff purchased the property in dispute?… the plaintiff relied on Exhibits 6,9 and 11. Exhibit 9 shows that the plaintiff is the landlord of Number 13, Bello Road, Kano to whom Birma General Supplies Limited paid rent. Exhibit 9 was dated 18/04/88? It should be

realized that late Alh Umaru Sanda Birma was the managing Director of Birma General Supplies Ltd, while PW5 was director of the said company. In the absence of any evidence to the contrary, Exhibit 9 must be accorded the full weight it deserves. Exhibit b, a document signed by late Alh. Umaru Sanda Birma as Managing Director of Birma General Supplies Limited, shows that the development of the company?s Head Office was under construction and progress thereon would be reported to members as soon as agreement had been reached with the landlord. Even though the landlord?s name was not mentioned, but taking into consideration the evidence of PW5, PW6 and PW7 as well as Exhibit 9, the said landlord was no other person than the plaintiff. PW5 said the issue of paying rent to the plaintiff had been discussed in several Board Meetings of Birma General Supplies Limited and also stated that the deceased did confess to him that the property in dispute belongs to the plaintiff. PW6 testified that Birma general Supplies Limited paid rent to the plaintiff and the relationship between the two was that of landlord and tenant. The plaintiff, as PW7, testified that

Birma General Supplies Limited was paying him rent in respect of the disputed property.
Exhibit 11 is consistent with the testimonies of the plaintiff and PW6. PW6 got to know of the property in dispute when the 2nd stage of the lease of the property to Chartered Bank for renewal of the lease Agreement. According to PW6, when Chartered Bank paid the rent it was paid to the plaintiff by Alh. Umaru Sanda Birma. The plaintiff stated it was with his consent that the property in dispute was let to Chartered Bank, and Exhibit 11 was sent to him by late Alh. Umaru Sanda Birma who paid him the rent paid by Chartered Bank. PW6 also saw the Deed of Assignment executed by both plaintiff and late Alh U S Birma in favour of Damson Properties Limited, the family company of the plaintiff.
In the circumstances of this case, it can safely be deduced that it was the plaintiff who did purchase the property in dispute, particularly taking into consideration Exhibits 6,9, 11 as well as the testimonies of PW5, PW6 and PW7. As the defendants failed to produce the Deed of Assignment pleaded and relied on by them through which late Alh. Umaru Sansa Birma was alleged to have

acquired title to the property in dispute, the allegation that it was the deceased that purchased the said property has not been proved. In the absence of the said Deed of Assignment the certificate of occupancy (Exhibit 17) obtained by the deceased has got no leg to stand on legally. Notwithstanding , the weakness of the defendants? case, the plaintiff has to succeed on the strength of his case in a case of this nature which deals with declaration of title to land. This is the trite law in Nigeria. The question is, has the plaintiff succeeded in proving his case to entitle him to the reliefs sought by him? To answer this question, it is pertinent to refer to the legal position of proving title to land as enumerated in several decisions of the Supreme Court?. That it is the law that title to land can be proved in five ways, that is;
1. By traditional evidence;
2. By production of documents of title which are duly authenticated;
3. By selling leasing, renting out all or part of the land or farming on it or a portion of it;
4. By acts of possession and enjoyment of the land, and<br< p=””

</br<

5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
Each of the five ways will suffice. By Exhibits 6 and 9 as well as the testimonies of PW5, PW6 and PW7, it was established that the plaintiff rented the property in dispute to Birma General Supplies Limited, the company of which late Umaru Sanda Birma was the Managing Director and PW5 was a director. It was also shown that the disputed property was leased to Chartered Bank with the consent of the plaintiff who was paid the rent by the Bank through late Alh. Umaru Sanda Birma. In my opinion, the plaintiff has successfully proved the 3rd way of proving title to land?.? (see pages 535 to 538 of the Records)

Evaluation of evidence adduced before the Court is the exclusive preserve of the trial Court and where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding

of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Ajibulu Vs Ajayi (2014) 2 NWLR (Pt. 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt. 1392) 564.

A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu Vs Idu (2006) 12 NWLR (Pt. 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt. 1270) 217. It is obvious from the above reproduced excerpts of judgment that the lower Court did carry out some evaluation of the evidence led by the parties. The question is whether the Appellants have

shown that the conclusion reached by the lower Court from the exercise is perverse?

Now, it is elementary that the starting point for determining the correctness of the judgment of a lower Court in an action commenced by pleadings is the pleadings of the parties. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt. 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt. 1403) 377 at 418 A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 765 at 188 A- B, Anyafulu Vs Meka

(2014) 7 NWLR (Pt. 1406) 396 at 424G. This principle was firmly restated by the Court of Appeal in Awuse Vs Odili (2005) 16 NWLR (Pt. 952) at page 504 E-F when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the Court will be called to adjudicate between them”.

Reading through the pleadings of the parties before the lower Court in this matter, the contest on the ownership of the property situate at No 13e, Bello Street, Kano was predicated on a very narrow issue. It was not in contest between the parties that the vendor of the property was a company called T. Kahale and Company Ltd. It was not in dispute that it was the late father of the Appellants, Alhaji Umaru Sanda Birma, that inspected the property and paid the sum of N40,000.00 for the purchase of the property to the vendors through a certified bank cheque issued through an account held in his personal name with UBA in Kano. It was not in dispute that the documents of

title of the property, the deed of assignment executed on the purchase of the property, and admitted as further evidence by this Court, and the certificate of occupancy issued by the Kano State Government in respect of the property were in the personal name of the late father of the Appellants. It was on these bases that the Appellants claimed ownership of the property. The case of the late father of the Respondents was that he was the person who was offered the property by the vendors and that the late father of the Appellants did all he did, i.e. the inspection of the property, the negotiation and payment, on his behalf and on his instructions and directions and that the money paid for the property was from funds being held in trust for him by the late father of the Appellants and that though the documents of title were in the name of the late father of the Appellants, the property was being held by the late father of the Appellants as his trustee. This was, in essence, the dispute before the lower Court on the ownership of the property. It had nothing to do with the five ways of proving title to land as copiously argued by Counsel to the Appellants and as

surmised by the lower Court in the judgment.

From the pleadings, the late father of the Respondents predicated his ownership of the property on the concept of trust. Trust simpliciter is the right enforceable solely in equity to the beneficial enjoyment of a property to which another person holds the legal title. The specie of trust relied on by the late father of the Respondents was implied trust, also called resulting trust, and this a trust that arises by implication of law, or by the operation and construction of equity and which is established and consonant to the presumed intention of the parties as gathered from the nature of the transaction. When property has been acquired in such circumstances that the holder of legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.
?It is the trust that occurs where a person makes, or causes to be made, a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding that property should have the beneficial interest therein, unless the inference is rebutted or the beneficial interest is otherwise

effectively disposed off. An example of such a situation is where a purchased property is conveyed in the name of someone other than the purchaser or where a person applies for a leasehold of a right of occupancy in the name of another person. In other words, where one person provides the purchase money for land and another obtains a conveyance of that land in his name, a resulting trust arises by operation of law in favour of the person who provided the purchase money. Such a trust is referred to as “resulting? because the beneficial interest in the property comes back or results to the person who provided the purchase price for the properly or to his estate – Madu Vs Madu (2002) 13 NWLR (Pt. 784) 231, Ezeanah Vs Atta (2004) 7 NWLR (Pt. 873) 468, Idirisu Vs Obafemi (2004) 11 NWLR (Pt. 884) 396, Ughutevbe Vs Shonowo (2004) 16 NWLR (Pt. 899) 300, Anuruba Vs Ebenator Community Bank Ltd (2005) 10 NWLR (Pt. 933) 321, Ibekwe vs Nwosu (2011) 9 NWLR (Pt. 1251) 1.
This concept was explained by the Supreme Court in the case of Adekeye Vs Akin- Olugbade (1987) 3 NWLR (Pt. 60) 214 at 227 where Oputa, JSC stated thus:
?A trust can be expressed or implied.

When a trust is created intentionally by the act of the settler it is called an express trust. But where the legal title to property is in one person and the equitable right to the beneficial enjoyment of the same property is in another, a Court of equity will from those circumstances infer an implied trust. Also, a person incapable of being an express trustee may well be a trustee of an implied, resulting or constructive trust. An implied trust is thus a trust founded upon the unexpressed but presumed intention of the settler. One common example of implied trust is where on a purchase. The consensus of legal and judicial opinion is that the trust of a legal estate whether taken in the name of the purchasers whether in one name or several, whether jointly or successive, results to the man who advances the purchase money.?
Where the concept of resulting trust arises in relation to land, the claimant of the piece of land must prove by hard and concrete evidence that he actually owned and/or was entitled to the land but voluntarily opted that the title deed or deed of assignment be made in favour of another – Ezeanah Vs Atta supra. The question before

the lower Court was whether the late father of the Respondents led hard and concrete evidence to sustain his claim of ownership of the property? The lower Court found on the strength of the testimonies of the fifth, sixth and seventh plaintiff witnesses coupled with the contents of Exhibits 5, 9 and 11, that the late father of the Respondents discharged the onus of proof on him and that when compared to the evidence led by the Appellants, the case of the Respondents preponderated. The task before this Court is whether these findings were correct in the face of the pleadings and the evidence led by the parties?

On the purchase of the property, the case of the late father of the Respondents on the pleadings was that sometime in 1974, he, in the presence of Alhaji Usman Garba, informed the late father of the Appellants that the owners of the property at No 13e, Bello Road, Kano had offered it to him and he instructed the late father of the Appellants to go, in the company of one Alhaji Mohammed Baffa, to inspect the property and that the late father of the Appellants did as requested and recommended the property for purchase and he thereafter negotiated with

the vendors to purchase the property for N40,000.00. It was his case that he travelled to London and invited the late father of the Appellants to meet him in London where discussions were held between them as to payment of the purchase price from the loan he raised ftom his Bankers and that while in London the late father of the Appellants contacted his, late father of the Appellants’, Bank Manager at UBA and a bank certified cheque was raised by UBA and collected by Alhaji Usman Garba who paid same to the vendor of the property and collected the statutory certificate of occupancy No 3825 which was handed to the late father of the Appellants. It was his case that though the account at UBA was in the name of the late father of the Appellants, the funds therein were monies being held by the late father of the Appellants in trust for him.

In his testimony as the seventh plaintiff witness, the late father of the Respondents testified that the property at No 13e, Bello Road was offered to him by the vendor in his office in Lagos and that he negotiated the purchase of the property to N40,000.00 and that he thereafter directed the late father of the Appellants

to go and inspect the property in the company of one Alhaji Mohammed Bappa working with the Estate Department of the Nigerian Customs and Alhaji Mohammed Bappa reported back to him that the property was worth more than twice the N40,000.00. He gave evidence that he thereafter called the vendors and told them that he was going to purchase the property and that he needed two weeks to negotiate for a loan from his bankers, Barclays Bank at Marina in Lagos, and that when the loan was granted he called the late father of the Appellants to inform the vendors that he was ready to pay for the property. He stated that the late father of the Appellants sent one Alhaji Usman Garba, the fifth plaintiff witness, to him in Lagos by an early morning British Airways flight and that Alhaji Usman Garba met him in his house and he gave Alhaji Garba the purchase sum of N40,000.00 which he packed in his new brief case to take to the late father of the Appellants to pay for the property. He testified that he fell ill soon thereafter and was referred to a clinic in London and that the late father of the Appellants went with him to London and that while there, Alhaji Usman Garba

telephoned the late father of the Appellants to demand the payment for the property and the late father of the Appellants directed Alhaji Usman Garuba to go to the Manager of UBA where the late father of the Appellants had an account to collect a certified cheque for N40,000.00 to pay to the vendors and that Alhaji Usman Garba did so and paid the cheque to the vendors.

It is very clear that the evidence of the late father of the Respondents on the negotiation and the source of the funds used to pay for the property was at variance with his case on the pleadings; while the case on the pleadings was that he invited the late father of the Appellants to London to discuss how the purchase price was going to be paid from the loan he obtained from his Bankers and that the money was paid from funds held in trust for him in an account in the late father’s name in UBA, he testified that he sent the purchase price in cash to the late father of the Appellants to make the payment from the loan he obtained from his bankers through Alhaji Usman Garba before they both travelled to London and he said nothing about funds being kept in trust for him in any account. The

said Alhaji Usman Garba testified as the fifth plaintiff witness and he said nothing about going to Lagos to collect the sum of N40,000.00 for the purchase of the property from the late father of the Respondents and all he said was that the late father of the Respondents usually sent him with some money to pay into the account of the late father of the Appellants and that he cannot remember the number of times he was sent with money. Thus, there were also internal differences in the evidence of the fifth and seventh plaintiff witnesses on the funding of the purchase of the property by the late father of the Respondents.

Additionally, the case of the late father of the Respondents was that he purchased the property through the late father of the Appellants, but neither on the pleadings nor in his testimony or the testimonies of his witnesses did he state any reason why he did so; he never stated why he did not purchase the property directly from the vendors in his own name and chose instead to go through the circuitous route of purchasing the property through and in the name of the late father of the Appellants. It is not in tune with normal human nature

and behavior for a person of full age, full mental capacity and necessary means to purchase a property in the name of someone else, and not intending it to be a gift to that person, without a reason. Also, not one single document relating to either the negotiation or purchase of the property was produced by the late father of the Respondents; not even a correspondence between him and the vendors on the purchase.
?
In contrast, the case of the Appellants on the purchase of the property was that the late Alhaji Ibrahim Damcida neither provided the funds nor was he aware of the circumstances and arrangement under which their late father purchased the property at No 13e, Bello Road, Kano and he was not a party to the negotiation and did not make any contribution to the purchase of the property. It was their case that late Alhaji Ibrahim Damcida never gave any funds to their late father to keep in trust for him and that Alhaji Usman Garba was only an employee in the company and he left the employment of the company in bitter circumstances and that their late father did not require the assistance of anyone to purchase the property and that the property belonged

to him and that a formal deed of assignment evidencing the purchase of the property was prepared, executed and registered by their late father well before 1978.

The five defence witnesses testified in proof of these averments and they tendered the correspondences exchanged between their late father and the vendor of the property dated 11th of September 1973 and 28th of February, 1974 showing that the offer of sale of the property was made to their late father and that the negotiations and agreement on the purchase price of N40,000.00 took place between their father and the vendors directly in September 1973, and that the property was purchased by their late father in September 1973, and not in 1974; the letters were Exhibits 15 and 16. They also tendered the certificate of occupancy obtained by their late father to evidence his ownership of the property as Exhibit 17 and the duly registered deed of assignment dated the 20th of January, 1974 and executed between their late father and the vendor evidencing the sale of the property to their late father as further evidence in this Court. In none of these documents was any mention or reference made to the late

father of the Respondents and all these documents were in possession of the late father of the Appellants, nothing was in possession of the late father of the Respondents.

When all these documents are coupled with the admitted facts on the pleadings that the funds for the payment of the purchase price came from the monies in the account of the late father of the Appellants, they far outweigh the case of the Respondents. It is a firmly established principle of evaluation of evidence that once documentary evidence supports oral evidence, such oral evidence becomes more credible and more reliable and this is premised on the fact and the law that documentary evidence serves as a hanger from which to assess oral testimony – Ukeje Vs Ukeje (2014) 11 NWLR (Pt. 1418) 384, Gbileve Vs Addingi (2014) 16 NWLR (Pt. 1433) 394.

The lower Court placed a lot of emphasis on the testimony of the fifth plaintiff witness that the company, Birma General Supply Ltd, occupied the property at No 13e, Bello Road, Kano as a tenant of the late father of the Respondents and that the issue of payment of rents was discussed at several Board Meetings of the company and that rent was

paid to the late father of the Respondents yearly with the initial sum being N6,000.00 per year and that the rents were paid by crediting the account of the late father of the Appellants until 1980 when the late father of the Respondents requested that payment be made to him directly and a cheque of N120,000.00 was raised in favour of the late father of the Respondents. It was in furtherance of this evidence that the lower Court place full probative value on the documents tendered as Exhibits 5 and 9.
?
However, reading through the case of the late father of the Respondents on the pleadings, it was never his case before the lower Court that he let the property to Birma General Supply Limited and that he was paid rents yearly by the company either directly or otherwise. His case on the pleadings was that he was the sole financier of the business of the company through loans he raised from his bankers and that he used his personal connections to ensure that the company enjoyed good patronage from companies such as Leventis Nigeria Ltd and other major trading companies and that when the property was purchased in 1974, he instructed that the main business of

the company be moved into the property. It is correct that the late father of the Respondents pleaded that at a point in time the company paid rents to him and that the sum of N120,000.00 was paid to him by a cheque as rent for 1985/86 and that the issue of the payment of rents was discussed at several Board Meetings of the company.

The minutes of the said several Board Meetings were not tendered in evidence. It was only the ipse dixit of the fifth plaintiff witness as to what was allegedly discussed at Board Meetings of the company held in the early to mid 1980s, twenty years ago, as at the date of his testimony, that was presented. The late father of the Respondents sought to make out a case for the non-presentation of the minutes of the meeting of the Board, but the fifth plaintiff witness who stated that he was a director of the company and that he attended all the said Board Meetings offered no explanation for the whereabouts of his own copies of the minutes of the meetings. Also, it was only the letter forwarding the alleged cheque for N120,000.00 as rents for 1985/86 that was tendered as Exhibit 9; a copy of the cheque itself and/or of the

statement of account of the late father of the Respondents wherein the cheque was deposited were not produced and no explanation was given for their non-tendering.

The lower Court also placed emphasis on the evidence of the Pw6 and Pw7 on the letting of the property to Chartered Bank Limited and the payment of five years rent by the Bank to the late father of the Appellants and which rent the two witnesses said was paid over by the late father of the Appellants to the late father of the Respondents, in acknowledgment of the ownership of the property by the late father of the Respondents. It was in this wise that the lower Court accorded probative value to the contents of Exhibit 11, copy of a letter copied to the late father of the Appellants confirming payment of five years rents by the Bank and copy of a bank draft for the rents made out in the name of the late father of the Appellants.
?
The case of the late father of the Respondents on this payment of rents on the pleadings was that at a point in time he granted permission to the late father of the Appellants to let the property to Chartered Bank for a term of eight years and that the Bank paid

five years rent totaling the sum of N4,468,750.00 less withholding tax by a bank draft made out in the name of the late father of the Appellants and that the late father of the Appellants paid the bank draft into a UBA Account and sent him a copy of the covering letter and the bank draft and subsequently issued a personal cheque on UBA account for the said amount in his favour and which he paid into his account. In his oral evidence as the seventh prosecution witness, the late father of the Respondents gave two contradictory pieces of evidence and both of which deviated from his case on the pleadings. In one breadth he stated that the late father of the Appellants paid the money to him in cash and not by a personal UBA cheque, and in another breadth he said that Chartered Bank paid the late father of the Appellants by crediting an account in Chartered Bank and that the late father of the Appellants paid him with bank draft of Chartered Bank which he paid into his account. It was the copy of the letter and of the bank draft made out by the Bank in the name of the late father of the Appellants that was tendered as Exhibit 11. The copy of the personal UBA cheque

or of Chartered Bank draft for the amount that the late father of the Appellants was alleged to have issued in favour of the late father of the Respondents was not tendered and neither was the statement of the account of the late father of the Respondents where the cheque or draft was paid into tendered and no explanation was offered for the failure to do so.

Meanwhile, on the other side of the scale, it was not in contest that subsequent to the purchase of the property, the late father of the Appellants went into possession of the same and there was clear evidence before the lower Court that he exercised positive acts of dominion and ownership over the property. The late father of the Respondents admitted under cross examination as the seventh plaintiff witness that the late father of the Appellants carried out extensive developments on the property at enormous costs and which he had no knowledge of. There was evidence in the property file tendered by the third plaintiff witness as Exhibit 2 that the late father of the Appellants mortgaged the property to the United Bank of Africa to raise a loan of N550,000.00 in his personal name in 1986 and for which

the approval of the Governor of Kano State was sought and obtained. There was evidence that in September 1990, the late father of the Appellants sublet a portion of the property to Chartered Bank Limited for. a term of fifteen years at an annual rent of N120,000.00 and for which the approval of the Governor of Kano State was sought and obtained. There was also evidence that in 1999, the late father of the Appellants mortgaged the property to Chartered Bank Limited to raise a loan of N10 Million on behalf of another of his company, Santana Furniture Factory Limited, and for which, again, the approval of the Governor of Kano State was sought and obtained. Further, there was evidence that in 2002, the late father of the Appellants granted a sublease of a portion of the property to Chartered Bank Limited again for a term of eight years at a going rent of N893,750.00 per annum and the approval of the Governor of Kano State was sought and obtained.
?
All these transactions were documented and in none of the documents constituting the transactions or leading up to them did the name of the late father of the Respondents feature either by way of ordinary mention or

otherwise. Exhibit 2 showed that all demand notices for ground rents payable on the property were sent in the personal name of the late father of the Appellants and they were settled by him. The late father of the Respondents did not contest all these facts and his lame response was that the late father of the Appellants sought for and obtained his permission before doing all the acts, but he neither tendered any document by which such permission was sought or granted.

Now, credible evidence means evidence worthy of belief and for evidence to be worthy of belief and credit, it must proceed from credible sense and be credible in the entire circumstances. It should be natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe – Agbi Vs Ogbeh (2006) 11 NWLR (Pt. 990) 65, Ogboru Vs lbori (2006) 17 NWLR (Pt. 1009) 542, Dim Vs Enemuo (2009) 10 NWLR (Pt. 1149) 353. It must also be in accordance with the pleadings of the party leading the evidence and this is because evidence which is at variance with case of a party on the pleadings is not deserving of any credit from a trial Court – Aminu Vs

Hassan (2014) 5 NWLR (Pt. 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt. 1403) 377. It is apparent from the pleadings and from the evidence led by the parties that the late father of the Respondents did not lead hard, credible and cogent evidence that preponderated over the case of the Appellants to sustain the claim of ownership of the property in dispute.

It is settled in our land tenure law that ownership of property is a complete and total right over a property. The owner of the property is not subject to the right of another person, as long as he has the full and final right to put the property or make use of it anyway, including planning of the land, if the need arises. The owner of a property can use it for any purpose; material or immaterial, substantial, non-substantial, valuable, invaluable, beneficial or even for a purpose detrimental to his personal or proprietary interest. In so far as the property inheres in him nobody can say anything. The property begins with him and ends with him – Nasir Vs Abubakar (1997) 4 NWLR (Pt. 497) 32, Attorney General of Lagos State Vs Attorney General of the Federation (2004) 12 NWLR (Pt. 833) 1.

It is clear

from the evidence placed before the lower Court that it was the father of the Appellants that exercised a complete and total right over the property in dispute and that the Appellants were the persons entitled to be declared owners of the property. The lower Court deliberately or inadvertently ignored and overlooked crucial and necessary glaring pieces of evidence on record and it rather focused on shaky, sparse and contradictory pieces of evidence in coming to its decision. The decision was perverse and the lower Court was thus on very slippery ground when it affirmed the claims of the late father of the Respondents to the ownership of the property at No 13e, Bello Street Kano and dismissed the counterclaim of the Appellants for the ownership of the property. The first issue for determination is resolved in favour of the Appellants.

Issue Two
This takes us to the second issue for determination – whether, from the pleadings and the evidence led by the parties, the lower Court was correct when it dismissed the counterclaim of the Appellants in its entirety.
?
The necessary effect of the resolution of the first issue for determination is that

Appellants are entitled to a declaration that the property known and called No. 13E, Bello Road, Kano covered by Certificate of Statutory Right of Occupancy No. COM/RC/82/380 belonged to Alhaji Umaru Sandra Birma (deceased) and formed part of the Estate of the deceased. This is their first claim on the counterclaim.
?
The second claim of the Appellants on the counterclaim was for another declaration that the property known as No 148, Hotoro GRA, Kano and covered by Certificate of Statutory Right of Occupancy No. KN/4999 belonged to Alhaji Umaru Sandra Birma (deceased) and formed part of his Estate. A claim for ownership of this property was also part of the claims of the late father of the Respondents before the lower Court, but he abandoned the claim in the course of his evidence as the seventh plaintiff witness when he testified that it was only Global Ventures Limited that could file an action to retrieve the property from the Appellants and he would file another case to retrieve the property. Reading through the judgment the lower Court stated that it would not evaluate the evidence led by the witnesses, even of the Appellants, on the ownership of this

property because the late father of the Respondents withdrew his claim of ownership of the properly and it did not consider the counterclaim of the Appellants for ownership of this property before dismissing the counterclaim in its entirety.

The lower Court obviously overlooked the fact that a counterclaim is a separate and distinct cause of action and has all the tapestry of an action. It is a weapon of offence which enables a defendant to enforce a claim against a plaintiff as effectively as in an independent action and a separate decision is given in respect of a counterclaim – Moabison Inter-Link Associated Ltd Vs UTC Nigeria Ltd (2013) 9 NWLR (Pt. 1359) 197, Nsefik Vs Muna (2014) 2 NWLR (Pt. 1390) 151. Thus, the abandonment by a plaintiff of his main claim does not, and cannot amount without more to the abandonment of the counterclaim by a defendant. A counterclaim must be accorded the same attention as the main claim in an action and where a trial Court fails to consider a counterclaim a miscarriage of justice is occasioned and such a judgment is liable to be set aside – Olowolaramo Vs Udechukwu (2003) 2 NWLR (Pt. 805) 537, Isyaku Vs Master (2003) 5

NWLR (Pt. 814) 443, Oduakpu Community Bank Nig Ltd Vs Ibeto & Co Ltd (2007) All FWLR (Pt. 350) 1409.
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Counsel to the Respondents sought to justify the treatment meted by the lower Court to the Appellant’s claim of ownership of this property by saying that since the late father of the Respondents abandoned his claim for the property on the ground that the proper person to sue for the declaration of ownership of the property was Global Ventures Ltd and which company was still an existing entity, this meant that the lower Court was handicapped in exercising jurisdiction of over the counterclaim of the Appellants for a declaration of ownership of the property as proper parties were not before the Court. But reading through the judgment nowhere therein did the lower Court make a determination that it was refusing the counterclaim of the Appellants for the ownership of this property on the ground that proper parties to the claim were not before the Court. The lower Court simply refused to consider the claim because the late father of the Respondents abandoned his claim to the property and Counsel to the Respondents did not file a notice of intention to affirm

the judgment on other grounds apart from those contained in the judgment.

Going further, it is elementary that it is the case of the parties on the pleadings that determines the jurisdiction of a Court to adjudicate and also determines who should be the proper parties in a matter. The case of the late father of the Respondents on the pleadings was that the late father of the Appellants, himself and some expatriates had interest in a company called Global Ventures Ltd and that at one of the meetings it was decided that the company extend its business to Kano and, for this, it was decided that a permanent place for building of staff quarters be acquired and developed. It was his case that he, as Chairman of the company, directed the late father of the Appellants to look for a vacant piece of land and that the late father of the Appellants in late 1980/early 1981 negotiated for the purchase of the plot of land known as Plot 148 in Hotoro, Kano and covered by a certificate of occupancy No KN4999 from one Alhaji Mansur Mahmoud Yola for the sum of N20,000.00. It was his case that he paid sum and the original certificate of occupancy of the land was handed to

him by the late father of the Appellants and that he thereafter advanced various sums of money to the late father of the Appellants for the development of three sets of bungalows with boys’ quarters on the land and that after the purchase of the land, no step was taken by either himself or Global Ventures Ltd to recertify the old certificate of occupancy No KN4999 or register a deed of assignment to cover the transaction.

The case of the Appellants in response was that though their late father was a major shareholder in the company called Global Ventures Ltd, it was not agreed at anytime that their late father would transfer his property at Hotoro to the company and that their late father met, negotiated and paid for the purchase of the Hotoro property from Alhaji Mansur Mahmoud Yola personally and that neither Global Ventures Ltd nor late Alhaji Ibrahim Damcida provided or gave any funds to their late father for either purchase or the development of the Hotoro property. It was their case that at no time did their late father forward or give the certificate of occupancy of the Hotoro property to the late Alhaji Ibrahim Damcida and that their late father

was the owner of the property at Hotoro, Kano and that it formed part of his Estate.

It is clear from the pleadings that the issue of ownership of the property at Hotoro was a straight fight between the late father of the Respondents and the later father of the Appellants. Though the purchase and development of the property, according to the case of the late father of the Appellants was to have been for the use of Global Ventures Limited, this did not make the company a necessary party to the dispute over the ownership of the property. The late father of the Appellants having chosen to abandon his claim for the ownership of the property, the lower Court ought to have struck out the claim, along with the evidence led in support of it and the pleadings thereon and should have thereafter considered the case of the Appellants for ownership of the property. The records show that the late father of the Respondents filed a defence to the counterclaim but nowhere therein did he contest the case of the Appellants on the ownership of the property.
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It must be stated that the net effect of the failure of the late father of the Respondents to contest the claim of

the Appellants for the ownership of the property in question in his defence to counterclaim is that the assertions of the Appellants in their pleadings on the counterclaim stood unchallenged and are deemed admitted and established – Okoebor Vs Police Council (2003) 12 NWLR (Pt. 834) 444 and Consolidated Resources Ltd Vs Abofar Ventures (Nig) Ltd (2007) 6 NWLR (Pt. 1030) 221. Also, the effect of the abandonment of his evidence and pleadings on the ownership of the property by the late father of the Respondents is that he is presumed to have admitted the case made out by the Appellants on the claim – Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt. 983) 585 and Okolie Vs Marinho (2006) 15 NWLR (Pt. 1002) 316. This, however, does not translate to automatic victory for the Appellants on the claim, but it means that the onus on them will be discharged on minimal evidence as there is no evidence to put on the other side of the imaginary scale – Adewuyi Vs Odukwe (2005) 14 NWLR (Pt. 945) 473 and Consolidated Resources Ltd Vs Abofar Ventures (Nig) Ltd supra. The question is whether the Appellants made out a case of ownership of the

property in issue?

It is settled law that a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Lawal Vs Akande (2009) 2 NWLR (Pt. 1126) 425, Chukwu Vs Amadi (2009) 3 NWLR (Pt. 1127) 56, Usung Vs Nyong (2010) 2 NWLR (Pt. 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt. 1206) 559.

It is also settled law is that to succeed in a claim of ownership of land, the Court must be satisfied as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed -Obawole Vs Coker (1994) 5 NWLR (Pt. 345) 416, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt. 672) 370 at 382, Edohoeket Vs Inyang (2010) 7 NWLR (Pt. 1192) 25.

The Appellants relied on purchase of the land of the property by their late father from one Alhaji Mansur Mahmoud Yola. The law recognizes that there are

two clear and distinct ways in which land can be properly and rightly sold, validy acquired and legally transferred in Nigeria and these are either under Customary Law or under the received English law – Folarin Vs Durojaiye (1988) 1 NWLR (Pt. 70) 351, Iragunima Vs Uchendu (1996) 2 NWLR (Pt. 428) 30, Ezeagu Vs Onwuchekwa (1997) 4 NWLR (Pt 502) 689, Buraimoh Vs Karimu (1999) 9 NWLR (Pt. 618) 310. What determines under which system of law the sale has been conducted depends on the nature of the transaction and the procedure followed in making it – Commissioner for Lands & Housing Kwara State Vs Atanda (2007) 2 NWLR (Pt. 1018) 360. It is clear from the facts of this case that the Appellants relied on purchase under the received English Law.

It is a well settled principle that the payment of purchase price coupled with being in possession thereof in a sale of land under English law confers an equitable title upon a purchaser which title is capable of defeating subsequent purchasers – Yaro Vs Arewa Construction Ltd (2007) 17 NWLR (Pt. 1063) 333, Ezenwa Vs Oko (2008) 3 NWLR (Pt. 1075) 610, West African Cotton Ltd Vs Yankara (2008) 4 NWLR (Pt. 1077) 323. It was not

in contest between the parties that the land at No 148, Hotoro Quarters, Kano originally belonged to Alhaji Mansur Mahmoud Yola and the certificate of occupancy of the property was tendered as Exhibit 10. The said Alhaji Mansur Mahmoud Yola testified as the fourth defence witness and he confirmed that Exhibit 10 was his certificate of occupancy and he stated categorically that the person to whom he sold the land was the late father of the Appellants and that he did not know the late father of the Respondents or the company called Global Ventures Ltd.

The second, third and fifth defence witnesses affirmed that their late father was the owner of the property and the first defence witness stated that his father was in continuous possession of the property in his lifetime and that her brothers resided in the property in the lifetime of their late father and she tendered correspondences exchanged between her late father and the architect that constructed the bungalow buildings on the property. The correspondences were dated 17th of April, 1984 and 15th of May, 1984 and admitted as Exhibit 18; they confirmed the assertion of possession of the property by the

late father of the Appellants. The Appellants thus led adequate evidence of payment of purchase and possession of the property by their late father to invest him with an equitable title over the land in dispute. The Courts have held that such a title is sufficient to sustain a claim of ownership of land – Iragunima Vs Rivers State Housing and Property Development Authority (2003) 12 NWLR (Pt. 834) 427, Ashiru Vs Otukoya (2006) 11 NWLR (Pt. 990) 1, Etajata Vs Ologbo (2007) 16 NWLR (Pt. 1061) 554. The Appellants thus led credible evidence to sustain their claim of ownership of the property and the claim would be granted.

The Appellants also claimed on their counterclaim for an order of perpetual injunction restraining the late father of the Respondents, his heirs, assigns or representatives from interfering or inter-meddling with the two properties situate at No. 13E, Bello Road, Kano and No 148, Hotoro GRA, Kano. Injunction is an equitable relief issued or granted by a Court at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his

servants and agents to do some act, which he is threatening or attempting to commit or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the claimant and not such as can be adequately redressed by an action in law. It is a judicial process operating in personam, and requiring the person to whom it is directed to do or refrain from doing a particular thing – Nigeria Telecommunications Ltd Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt. 1167) 356.
It is an ancillary relief in the sense that it complements a cause of action and it is granted to enforce a right which the Court granting the injunction has first decreed or recognized in its judgment it is to ensure that such a right is not violated. It is a consequential relief used only as an accompaniment to a pre-ascertained principal relief – Olagbegi Vs Ogunoye II (1996) 5 NWLR (Pt. 448) 332, Daewoo (Nig) Ltd Vs Hazcon (Nig) Ltd (1998) 7 NWLR (Pt. 558) 438, Kadiya Vs Kadiya (2001) 14 NWLR (Pt. 734) 578. An injunction will be granted to protect the proved right of a party – Thompson Vs Arowolo (2003) 7 NWLR (Pt. 818) 163, Amori Vs lyanda (2008) 3 NWLR (Pt.

1074) 250.

The law is that where a party claims a relief of perpetual injunction, it is sufficient if the evidence led shows a right or interest the Court could protect by that order and an actual, threatened or likely infringement or violation of that right or interest by the other party – Biyo Vs Aku (1996) 1 NWLR (Pt. 422) 1, Rector, Kwara Polytechnic Vs Adefila (2007) 15 NWLR (Pt. 1056) 42. The Court can, and should grant the order of injunction as a consequential relief to protect the right of the party adjudged to be in possession, even where it is not claimed by the claimant – Obayagbona Vs Obazee (1972) 5 SC 247, Oluwole Vs Abubakare (2004) 10 NWLR (Pt. 882) 549, Briggs Vs The Chief Lands Officer of Rivers State of Nigeria (2005) 12 NWLR (Pt. 938) 59, Chukwuma Vs Ifeloye (2008) 18 NWLR (Pt. 1118) 204. This Court having found that the Appellants are the owners of the two properties in dispute in this matter, they are entitled to the order of perpetual injunction sought on the counterclaim.
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The fourth claim of the Appellants on the counterclaim was for an order compelling the plaintiff to render comprehensive accounts of the sale of Global Ventures

Limited. Reading through the case of the Appellants on the pleadings and the testimonies of their witnesses, they neither averred facts nor led evidence in proof of this claim. The lower Court was thus correct when it dismissed this claim of the Appellants.

All in all, the second issue for determination in this appeal is also resolved in favour of the Appellants.

In conclusion, this Court finds merit in this appeal and it is allowed. The judgment of the High Court of Kano State in Suit No K/961/2003 delivered by Honorable Justice Wada A. Omar Rano on the 1st of February, 2010 is set aside. The claims of the Respondents before the lower Court are hereby dismissed in their entirety while the first second and third prayers of the Appellants on the counterclaim are granted. For avoidance of doubt it is hereby ordered as follows:
i. The claims of the Respondents before the lower Court fail in their entirety and are hereby dismissed.
ii. It is hereby declared that the property known and called No. 13E, Bello Road, Kano covered by Certificate of Statutory Right of Occupancy No. COM/RC /82/380 belonged to Alhaji Umaru Sandra Birma (deceased) and

formed part of the Estate of the deceased.
iii. It is hereby declared that the property known as No 148, Hotoro GRA, Kano and covered by certificate of Statutory Right of occupancy No. KN/4999 belonged to Alhaji Umaru Sandra Birma (deceased) and formed part of his Estate.
iv. An order of perpetual injunction is hereby made restraining the Respondents, their heirs, assigns or representatives from interfering or inter-meddling with the said two properties.
v. The claim for an order compelling the plaintiff to render comprehensive accounts of the sale of Global Ventures Limited fails and it is hereby dismissed.

The Appellants are entitled to the cost of this action assessed at N50,000.00. These shall be the orders of this Court.

Other Citations: (2016)LCN/8621(CA)

Abubakar U. Birma & Ors V. Ahmed Damcida & Anor (2016) LLJR-CA

Abubakar U. Birma & Ors V. Ahmed Damcida & Anor (2016)

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