Alhaji Isiyaku Yakubu V Alhaji Usman Jauroyel & Ors (2014)
LAWGLOBAL HUB Lead Judgment Report
JOHN AFOLABI FABIYI, J.S.C.
This is an appeal against the majority decision of the Court of Appeal, Jos Division (the court below) delivered on 27th day of January, 2005. Therein, the judgment of Gwam, J. of Adamawa State High Court, Yola delivered on 13th day of June, 1995 in which the appellant’s claim was dismissed in its entirety, was affirmed by the court below.
It is apt to state the facts leading to this appeal briefly. The appellant as plaintiff at the trial court, maintained that he was granted a piece of land measuring 6,149 square metres by the defunct Gongola State Government (now Adamawa State) at Mubi GRA covered by Certificate of Occupancy No. GS/5705, marked by concrete beacons Nos. D1470, D1476, D1475 and D1470A. He maintained that when he went to the land in a bid to fence it, he discovered that some of the beacons were missing. He wrote to the Ministry of Land and Survey but got no response. He subsequently visited the land again and found the 1st defendant/respondent’s workers on a portion of the land working. He told them to stop working. The 1st defendant/respondent refused and claimed that he had a right to the parcel of land.
The plaintiff filed his suit originally against the 1st defendant. In his statement of claim, he sought for an order of injunction to restrain the 1st defendant from continuing to perpetuate his acts of trespass and claimed N40,000.00 as damages.
The 1st defendant denied most of the crucial allegations of the plaintiff. He maintained that he applied for land in 1982 and was allocated the plot of land in dispute by the Ministry of Lands and Survey, Yola. He asserted that the Certificate of Occupancy held by the plaintiff was fraudulently obtained.
Before the trial court, the appellant testified and called P.W.2, an official of the Ministry of Lands and Survey. He then applied to join the 2nd and 3rd defendants. As well, he also filed an application to amend his statement of claim. Therein, he claimed declaration that he is the titular owner of the piece of land covered by Certificate of Occupancy GS/5705 at Mamiso Road, Mubi, perpetual injunction to restrain the defendants and N40,000 against the 1st defendant for trespass. His applications were granted. The stated new parties filed their joint statement of defence and the trial continued. The defendants called two witnesses including the 1st defendant in person.
At the conclusion of the trial, the trial judge delivered his judgment in which he dismissed the claims of the plaintiff in its entirety, basically on the grounds that the evidence of the plaintiff and his witness was conflicting and that the Certificate of Occupancy issued to him ‘was false, fake and counterfeit’. The plaintiff felt unhappy with the stance of the trial court and appealed to the court below which heard the appeal and dismissed it. By a majority decision, the judgment of the trial court was upheld. The appellant has decided to further appeal to this court with the leave granted him on 17th May, 2006.
On 3rd February, 2014 when the appeal was heard, N. A. Ibrahim, learned counsel who appeared for the appellant adopted the brief of argument filed on 21st March, 2007 as well as the Reply brief to the 1st respondent’s brief filed on 24th April, 2013. He urged that the appeal be allowed.
R. C. Emem, learned counsel for the 1st respondent adopted the brief filed on 29th June, 2009 but deemed filed on 18th February,2013. He urged the court to dismiss the appeal. In the same vein, U. V. Obi, learned counsel for the 2nd and 3rd respondents adopted the brief filed on 28th January, 2014 but deemed regularly filed on 3rd February, 2014. After withdrawing arguments in paragraph 4.32 at pages 14-15 of the stated brief, he urged the court to dismiss the appeal.
On page 2 of the appellant’s brief of argument, three issues were formulated for determination; as follows:-
“ISSUE NO. 1
Could it truly be said that there were material conflicts in the evidence adduced by the appellant and his witness to have made the Court of Appeal affirm the decision of the trial court
ISSUE NO. 2
Was the Court of Appeal right to have endorsed the finding of the trial court that the Certificate of Occupancy was fake, false and fraudulent when the respondents admitted having issued the Certificate to the appellant
ISSUE NO.3
Was the appellant entitled to the land measuring 6,149 square metres And if not, was the Court of Appeal not wrong to have denied appellant the smaller portion of land to which the 2nd respondent admitted as having been allotted to the appellant
On pages 3-4 of the 1st respondent’s brief of argument, three issues were also decoded for determination. They read as follows:-
“(1) Whether the Court of Appeal was right in upholding the findings of the learned trial judge that there were material conflicts in the evidence of P.W.1, plaintiff/appellant and P.W11
(2) Whether the Court of Appeal was right in upholding the findings of the learned trial judge that the certificate of occupancy-exhibit 1 was fake, false and fraudulent in view of the evidence before the court.
(3) Whether the Court of Appeal was justified in affirming the judgment of the trial court that dismissed the claim of the plaintiff/appellant in its entirety and without granting him title in respect of a smaller piece of land.”
On page 5 of the 2nd and 3rd respondents’ joint brief of argument, four issues were distilled for determination of the appeal. They read as follows:-
“(1) Whether the court below was not right to have affirmed the decision of the Hon. Trial Judge that the evidence of the appellant’s witnesses are not only conflicting but are diametrically opposed to each other.
(2) Whether going by the evidence adduced before the trial court the court below was not right to have affirmed the decision of the trial court which held that the Certificate of Occupancy tendered by the appellant was fake, false and fraudulent.
(3) Whether the court below was not right to have affirmed the decision of the trial court that the appellant WAS NOT entitled to a parcel of land measuring 6,149 square metres situate at Mamiso Road.
(4) Whether the court below was not right in refraining from making a declaration of title in favour of the appellant for the portion of land, though smaller than what the appellant had claimed, but which appeared to have been established.”
The issues formulated on behalf of the parties are similar in their essence and purport. I shall employ the issues formulated on behalf of the appellant in the determination of the appeal.
Appellant’s issue No. 1 is whether it could be said that there were material conflicts in the evidence adduced by the appellant and his witness to have made the court below affirm the decision of the trial court.
Learned counsel to the appellant set out relevant portions of the evidence adduced by the appellant as P.W. 1 as well as that of his witness – P.W. 2. He submitted that the evidence of P.W. 2 was essentially explanatory rather than contradictory. He submitted that where explanations have been given to an alleged conflict or discrepancy, there cannot be said to be any material contradictions. He cited the case of Ohiwerei v. Okoson (2003) 11 NWLR (Pt. 832) 463 at 491 wherein it is lucidly stated that ‘contradictions must amount to a substantial disparagement of the witnesses’. He asserted that there are no material conflicts in the evidence of the appellant and his witness – P.W.2.
At this point, it is of moment to reproduce the evidence upon which the above submissions were based, relied upon by the court below to affirm the trial court’s decision. The appellant, as P.W.1, adduced evidence and said, inter alia –
“I applied for land in 1982. The land was granted to me. The land is situated in GRA Mubi, Mamiso Road. I was given a Certificate in 1988, a Certificate of Occupancy (statutory No.GS /5705—-After I was granted the Certificate of Occupancy, I wanted to fence the land but I discovered that some of the beacons were missing. I then wrote to the Ministry of Lands and Survey, Yola. I did not get a reply from the Ministry of Lands Yola. To my dismay I found the defendant and other persons working on the land. I asked them to stop working on my land but the defendant refused saying that it was the Ministry of Lands that gave him the land.”
The evidence of the plaintiff’s witness to wit – P.W. 2 goes as follows , inter alia –
“I know the plaintiff and the defendant. The plaintiff is one of our numerous tenants. He came to apply for a piece of land sometime in 1983 and was duly allocated one at GRA Mubi and the documents were processed and sent to Yola for processing. A form was prepared from Mubi, that a plot measuring 73 metres x 40 metres giving a total of 2,920 square metres plot No. 7 Mamiso Road was duly processed at the Headquarters. After processing, a Certificate of Occupancy in our Zonal Office Mubi for their record it was then discovered that the title Deeds recited in the Certificate of Occupancy was reading a different thing from 2,920 square metres to 6,149 square metres.”
He further said as follows:-
“I see Exhibit 1 (Certificate of Occupancy) it does not represent the parcel of land granted to the plaintiff.
There is another document prepared in 1983 which is current and genuine. The Survey plan used by the plaintiff was prepared in 1978. It has been superceded. The 1983 title Deed divided the land into two, one was given to the plaintiff and the other to the defendant. The plots demarcated in 1978 was (sic) too large. The politicians demanded Lands in GRA. After the grant of 1978 were made. It was a policy decision to accommodate the Mubi people and the land was re-allocated.”
Learned counsel to the 1st respondent, on his part, seriously contended that the evidence of the plaintiff/appellant and his witness – P.W. 2 seriously contradict each other. He maintained that while appellant claimed title to 6,149 square metres as in Exhibit 1, P.W. 2 said he was entitled to 2,920 square metres and that no Certificate was made out to him. He cited Shaba Audu v. Jubril Guta (2004) WLA (Pt. 864) 463 at 481; Okochi v. Animkwoi (2003) 2 SCNJ 260 at 270; Odofin v. Oni (2001) 1 SCNJ 130 at 144.
Learned counsel for the 2nd and 3rd respondents made similar submissions as canvassed on behalf of the 1st respondent.
The point should be made here that the evidence adduced by P.W.2 was essentially explanatory rather than contradictory. If the evidence is properly appraised as it ought to be, it is clear that P.W. 2 gave evidence that the land allocated to the plaintiff was re-allocated for policy reason. He maintained that the 1983 survey map supreceded that of 1978 upon which plaintiff’s title was issued. The latter survey map divided the land into two, one was given to the plaintiff and the other to the 1st defendant/respondent. From the explanations given to the alleged conflict, contradictions do not persist as they tend to disappear into oblivion. It is basic that contradictions must amount to substantial disparagement of the witnesses.
See: Ohiwerei v. Okoson (supra) at page 491 cited by learned counsel to the appellant. I cannot surmise any real contradiction which amount to a substantial disparagement of the appellant and his witness – P.W.2. The re-allocation made for policy reasons changed the equation; so to say. The respondents who harped on the sizes of plots can hardly be heard to complain as the appellant was not to blame. It is the 2nd and 3rd respondents who should clear the position of things as created by them. I resolve this issue in favour of the appellant.
Issue No. 2 is whether the court below was right when it endorsed the finding of the trial court that the Certificate of Occupancy was fake, false and fraudulent when the respondents admitted having issued the Certificate to the appellant.
Learned counsel for the appellant submitted that the court below was wrong when it endorsed the finding of the trial court that the Certificate of Occupancy was fake, false and fraudulent. He further maintained that the evidence of P.W.2, D.W.2 and official communication contained in Exhibit 7 do not support the assertion that Exhibit 1 is fake, defective or not genuine. He felt that the authenticity of Exhibit 1 was clearly established by the appellant. He submitted further that P.W.2 and D.W.2 gave cogent evidence that the said Certificate of Occupancy was duly issued to the appellant by their office. He observed that D.W.2, apart from his testimony, produced and tendered Exhibits 5 and 7 both of which carried identical information with Exhibit 1.
Learned counsel further reiterated that the evidence of both P.W.2 and D.W.2 leaves no doubt whatsoever that Exhibit 1 is authentic as their evidence have been corroborated and supported by the record.
Learned counsel for the appellant further submitted that the 1st defendant/respondent who pleaded fraud in paragraph 10 of his statement of defence failed to furnish particulars contrary to the rules of pleadings and did not adduce evidence to buttress same. He observed that pleadings do not amount to evidence. He submitted that since no evidence was led by the 1st defendant in support of paragraph 10 of his statement of defence the averment should be regarded as abandoned. He cited the case of Adekunle v. Rockview Hotel Ltd. (2004) FWLR 1037 at 1051. He equally opined that the 2nd and 3rd respondents did not plead fraud and as such, they cannot lead evidence on same. He cited the case of Oyebisi Afolabi Usenfowokan v. Salami (1969) NMLR 77 in support.
Learned counsel for the 1st respondent maintained that the evidence that support the assertion of fraud emanated from P.W.2 who said the land allocated to the appellant was 2,920 square metres and not 6,149 square metres. He cited the case of Jack v. White (2001) 3 SCNJ 55 at 68.
Learned counsel for the 2nd and 3rd respondents maintained that from the evidence adduced before the trial court, the court below was right to have affirmed the decision of the trial court that the Certificate of Occupancy tendered as Exhibit 1 by the appellant was fake, false and fraudulent. He observed that P.W.2 said Exhibit 1 does not represent the parcel of land granted to the plaintiff/appellant as the land allocated to him is 2,290 square metres and not 6,149 square metres claimed by him in Exhibit 1. He urged that the decision of the court below should be affirmed on this point.
In respect of this crucial issue, it is apt to state it right away that the 2nd and 3rd defendants/respondents did not deny making Exhibit 1. The witnesses merely allude to mistake or inadvertence on their part. A Certificate of Occupancy issued as a result of mistake or inadvertence on the part of the official concerned cannot, with adequate reasoning, be said to be fake, false and fraudulent. This is more so as no fraudulent intent has been traceable to the door-step of the appellant. The court below, on this point, found as follows:-
“I believe these confusion arose from the action or inaction of the 2nd and 3rd respondents, for as can be read from the reproduced portion of P.W.2’s evidence supra the respondents discovered their mistake after Certificate of Occupancy (presumably Exhibit 1) was issued to the appellant, and they had sent a copy of it to their zonal office in Mubi. It was at that stage that they realized the mistake in the title deeds. According to this witness the latest title deed was the one of 1983, not 1978. But then, Exhibit 1 bears 23rd of November, 1988, about five years after the review, then who is to suffer for this inadvertence or oversight It seems it is the appellant who knew nothing about what was going on in the land offices.”
With due diffidence, I should say it again that a Certificate of Occupancy issued as a result of mistake or inadvertence on the part of official concerned cannot and should not be said to be fake, false and fraudulent.
Let me further say it that the official records of the 2nd and 3rd respondents as contained on pages 145 and 148-149 of the record of appeal point to the direction that Exhibit 1 was issued to the appellant in the normal way of doing same. The said page 145 reads as follows:-
“Ref. No……………
Ministry of Lands and Survey
Zonal Office,
Mubi.
24th October, 1989
The Director-General
Ministry of Lands and Survey,
PMB 2119,
Yola.
(ATTENTION-CHIEF LANDS OFFICER)
RE-STATUTORY RIGHT OF OCCUPANCY IN RESPECT OF ALH ISHAYAKU A. YAKUBU – GS/5705
We refer to your letter No. GS/MLS/LAN/830/1/23 of 18th September, 1989 and I wish to inform you that the Certificate of Occupancy No. GS/5705 issued to one Alhaji Ishayaku A. Yakubu on the 25th day of November, 1989 overlaps property No. GS/7261 and property No. GS/7208, belonging to one Sali Alh. Yunusa and Alh. Usman Jauroyel respectively.
- You may wish to withdraw the Certificate of Occupancy No. GS/5705 issued to avoid any conflict in the area.
(MICAH SAMBO)
For: ZONAL OFFICER
MUBI.”
The relevant portions of the reply to the above letter at pages 148-149 of the record of appeal read as follows:-
“Ref. No……………
Ministry of Land and Survey,
PMB 2119,
YOLA.
12TH January, 1990
The Zonal Officer,
Ministry of land and Survey,
Zonal Officer,
Mubi.
FOR THE ATTENTION OF LAND OFFICER
RE-STATUTORY RIGHT OF OCCUPANCY IN
RESPECT OF ALH. ISHAYAKU A. YAKUBU GS/5705
With reference to your letter No. CER/9/2026/Vol. 1/17 of 24th October, 1989.
- From available records this items GS/5705/Lan. 8307 is not in conflict with any mentioned items i.e. GS/7261/Lan/10207 or GS/2708/Lan/10171.
……
- It should be noted that GS/5707/Lan. 8307 is described as Plot No.7 Mamiso Road NEP.87 and so demarcated by beacons No.D14761, D1475, D1470A and D1470.
- From all available records these three plots are different as per site plan or any description contained in all the relevant files.
- Only GS/5705/Lan.8307 which has collected Certificate the rest are yet to settle their bill.
- The Area officer should be advised to go through the records of allocation properly and to allocated (sic) an alternative plot to GS/7208/Lan.10171 where he is convinced that plot No.5 Mamiso Road does not exist please.
- Attached all relevant files for your inspection please.
(DIO DENNIS)
For: DIRECTOR-GENERAL”
From the tones of the above correspondence between officials of the 2nd and 3rd respondents touching on Exhibit 1, can it be said that it was not issued to the appellant or that there is anything fraudulent about its issuance I think not. All that I am trying to say is that Exhibit 1 has not been proved to be fake, false or fraudulent by the 2nd and 3rd respondents. They have not said so. It does not lie in their mouths to say so from their conduct and records – which depict in clear terms the contrary position. See: Olujinle v. Adeagbo (1985) 2 NWLR (Pt. 75) 238.
I should still note it, however, that the 1st respondent pleaded in paragraph 10 of his statement of defence that Exhibit 1 was fraudulently obtained. Apart from the fact that he did not furnish the particulars of the alleged fraud, he did not proffer any evidence in respect of same. It is the law that the averment should be regarded as abandoned. See: Adekunle v. Rockview Hotel Ltd. (supra) at 1051.
Let me develop this point further. Allegation of fraud must be proved beyond reasonable doubt. Such must not leave room for speculation. It is proof in the realm of probability and not fantastic possibility that is required. See: Nwobodo v. Onoh (1984) 1 SCNLR 1 at 27-28; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Section 138 of Evidence Act, Cap 112 LFN, 1990.
Standard of proof for commission of crime in civil cases as alleged herein is the same as in criminal cases. See: Famuroti v. Agbeka (1991) 5 NWLR (Pt. 189) 1 at 13 where this court held that where the plaintiff alleged that the thumb impression on Exhibit A, the basis of the case was forged, same must be proved beyond reasonable doubt. See also Jules v. Ajani (1980) 5-7 SC 96 at 116.
I have said it before but I wish to further reiterate it that fraud requires a higher degree of probability in its proof. It must be pleaded with particulars adequately supplied. See: George v. Dominion Flour Mills Ltd. (1963) All NLR 70 at 77; Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 106. A party alleging fraud must discharge the onus of proof to the satisfaction of the court. See: Omoregie v. Aiwerioghene (1994) 1 NWLR (Pt. 321) 488 at 499.
The 1st respondent who alleged fraud herein flew it in the air. Same was not attended by particulars. There was no shred of evidence adduced in support of same. As the allegation of fraud made by the 1st respondent failed to take off, it did not hit the target.
I resolve this issue in favour of the appellant and against the respondents.
The 3rd and last issue of the appellant, to my mind, is whether the appellant was entitled to the smaller portion of land to which the 2nd respondent admitted as having been allotted to him.
The plot of land is No. 7 Mamiso Road, Mubi as stated in the letter of 12th January, 1990; part of which is reproduced above. According to D.W.2, it is a piece of land measuring about 2,920 square metres in Mubi GRA. It is an identifiable and certain piece of land. P.W.2, D.W.1 and D.W.2, all agreed on the identity of the land in dispute. In the case of Ajide Araba v. Ogunbiyi Asanlu (1980) 5-7 SC 78 at 85, this court per Idigbe, JSC stated it pungently that it is settled that where there is no difficulty in identifying the land in dispute a declaration of title may be made without it being based on a plan. See: also Odofin v. Oni (2001) 1 SCNJ 130 at 144.
It is settled law that in a claim for declaration of title to land as herein, the court may grant declaration over a smaller area than that claimed if the evidence before the court justifies it. See: Sogunle & Ors. v. Akerele & Ors (1967) NMLR 68; Ajide Araba v. Ogunbiyi Asanlu (supra) also reported as (1980) 5-7 SCNJ 78 at 85, Ezeaka Bekwe v. Emenike (1998) 9 SCNJ 58 at 73; all cited by appellant’s counsel and to the point.
In sum, I also resolve this issue in favour of the appellant as well.
There is no doubt about it that the appellant, as a victim of circumstance dictated by the alleged, ‘policy decision’, is now confined to No. 7 Mamiso Road, Mubi. Under the doctrine of ‘Ubi jus ibi Remedium’, (where there is a proven right, there is a remedy) he cannot be allowed to go away empty handed. He should be issued with the said Certificate of Occupancy the P.W.2 stated they were about to issue to him in respect of No. 7 Mamiso Road, Mubi before the court action commenced.
This appeal is hereby allowed in part. The order of dismissal of the appellant’s claim in its entirety by the trial court as affirmed by the court below is hereby set aside. Same is substituted with an order limiting the declaration and injunction sought by the appellant to the piece of land known and called No. 7 Mamiso Road, Mubi.
Each party should bear his/its own costs in the prevailing circumstance.
SC.154/2005
