Hajiya Maimuna Garba & Ors. V. Alhaji Baba Pate Zaria (2005)
LawGlobal-Hub Lead Judgment Report
KEKERE-EKUN, J.C.A.
The appellants herein who were plaintiffs in suit No. KDH/KAD/254/93 before the Kaduna State High Court sued the respondent, who was the defendant/counter-claimant seeking the following reliefs as contained in paragraph 12 of their amended statement of claim dated 25th March, 1997, at page 47 of the printed record:
(a) “A declaration that they have and are entitled to the right of occupancy in and over the piece of land and property known as No. V. 10 Ahmadu Bello Way, Kaduna.
(b) A declaration that the purported purchase of the 3 (three) rooms in the said property No. V. 10 Ahmadu Bello Way, Kaduna, is illegal, null and void and contrary to the principles of both Islamic Law and Land Tenure Law/Act.
(c) Perpetual injunction against the defendant by himself, his agents or privies from trespassing or further trespassing into the said plot No. V. 10 Ahmadu Bello Way, Kaduna.
(d) The sum of N100,000.00 (One hundred thousand naira) only as damages.”
The respondent also took out a writ of summons against the appellants in suit No. KDH/KAD/406/93 before the same court, claiming inter alia, title to a portion of the property known as No. V 10 Ahmadu Bello Way, Kaduna. The two suits were eventually consolidated. The appellants whose claim was earlier in time became the plaintiffs in the consolidated suit while the respondent became the defendant/counter-claimant. In paragraph 33 of the respondent’s further amended statement of defence/counter-claim dated 8th December, 1999, at pages 64-65 of the record the respondent sought the following reliefs against the appellants:
(a) “A declaration that the sale of the portion of the property No. V. 10 Ahmadu Bello Way, Kaduna, as shown in the sketch plan and coloured pink is lawful, legal, valid and of full effect.
(b) A declaration that the defendant/counter-claimant is the lawful and rightful owner/holder of the said portion of the property having validly bought same from one Alhaji Awwal, who bought from Alhaji Sani, who inherited it from Madam Ladi Bawa, who in turn bought from late Alhaji M. Musa Hadejia, who inherited the said portion of the property V. 10 Ahmadu Bello Way, Kaduna, from his late father, Alhaji M. Garba Hadejia under Islamic Law of Inheritance.
(c) An order demarcating the said property V. 10 Ahmadu Bello Way, Kaduna, along the northern boundary of the portion coloured pink i.e. along the broken red lines in the sketch plan.
(d) An order nullifying and invalidating the certificate of occupancy No. 011365 dated 19/1/79, same having been obtained by the 2nd plaintiff, Suleiman Garba by fraud and consequent order of injunction restraining the said 2nd plaintiff from parading himself as the rightful or lawful owner or holder of the certificate of occupancy over the whole property known and called V. 10 Ahmadu Bello Way, Kaduna, or in any way using the said certificate of occupancy to the detriment of the defendant.
(e) An order of perpetual injunction restraining the plaintiffs, their agents, servants, privies, assigns or any other persons claiming or acting through or on behalf of the plaintiffs from continuing any acts of trespass, or waste, or further acts of trespass and waste on the said property coloured pink in the sketch plan or in any other way or manner from interfering without infringing on the defendant’s title, right, privileges and interest appurtenant to the said portion of the property coloured pink in the sketch plan.
(f) General damages for trespass against the plaintiffs in the sum of N100,000.00 (One hundred thousand naira) jointly and severally.”
After numerous adjournment at the instance of the appellants, their case before the trial court was struck out for want of diligent prosecution and the trial proceeded on the respondent’s counterclaim. The respondent testified as the only witness. He was not cross-examined on his evidence. After the final address by the learned Counsel to the respondent but before judgment, the appellants applied to have their claim re-listed. The suit was accordingly relisted. The appellant again defaulted in prosecuting their claim Their case was closed and the matter adjourned for judgment. Judgment was delivered on 7th July, 2000, by M.T.M. Aliyu, J. wherein all the respondent’s reliefs in the counter-claim were granted. The appellants being dissatisfied with the judgment have appealed to this court by their notice of appeal dated 18/6/2002 containing two grounds of appeal.
The parties to this appeal duly filed and exchanged their respective briefs of argument. In the appellant’s brief dated 7/2/03 and filed on 10/3/03, two issues were formulated for determination as follows:
- Whether the lower court was right in ordering for the demarcation of the property.
- Whether the lower court was right in setting aside the certificate of occupancy in the absence of any evidence of fraud established by evidence, taking into consideration the time/date of the new certificate and the purported subsequent sale to the defendant/respondent.
In the respondent’s brief dated 27/3/03 and filed on 28/3/03, only one issue was formulated for determination:
“Whether the learned trial Judge was not entitled to accept the unchallenged and uncontradicted evidence of the respondent as true in proof of his counter-claim.”
The two grounds of appeal as contained in notice of appeal at pages 123-124 of the printed record without their particulars are reproduced hereunder:
Ground 1:
The court erred in law, when it held that house No. V. 10 Ahmadu Bello Way, Kaduna, be demarcated along a sketch plan (exhibit 1) and this error occasioned a miscarriage of justice.”
Ground 2:
”The court erred in law, when it set aside the certificate of occupancy issued to the 2nd plaintiff.”
Having regard to the grounds of appeal filed, I am of the view that the issues formulated by the appellants will adequately dispose of the appeal. The appeal shall therefore be determined on the issues formulated by the appellants.
In support of the first issue for determination, it was contended on behalf of the appellants in paragraph 4.1 of their brief that the certificate of occupancy is over the land and structures on the land; that it is wrong to sell rooms in a property covered by a single certificate of occupancy; that under Islamic Law the rooms ought to have been offered to other heirs before being offered for sale to outsiders and that there was no convincing and corroborating evidence to support the demarcation relief. No arguments were offered in support of these contentions and no authorities were cited in respect thereof.
It was argued in paragraphs 4.03-4.07 of the respondent’s brief that the respondent testified at the trial as to the need for the demarcation of the property having proved the sale of a portion thereof to him. It was further argued that the respondent’s evidence was unchallenged and that the court was therefore correct to accept the evidence as true. On the acceptance of unchallenged evidence, learned Counsel cited several authorities including: Adejumo v. Ayantegbe (1989) 5 NWLR (Pt.110) 417; Nwogo v. Njoku (1990) 3 NWLR (Pt. 140) 570; Olowokere v. African Newspapers (1993) 5 NWLR (Pt. 295) 583. Learned Counsel submitted that the appellants failed to utilise various opportunities afforded them by the lower court to prosecute their case and cannot be heard to complain at this stage.
A perusal of the respondent’s claims before the lower court shows that the prayer for a demarcation of the property known as V. 10 Ahmadu Bello Way, Kaduna, was ancillary to the main relief in his counter-claim seeking a declaration that the sale of a portion of the properly to him was valid. The appellants’ first three contentions in respect of this issue were not raised before the trial court and do not arise from the judgment appealed against. The only issue for determination before the trial court in this regard was whether the respondent had proved the sale of a portion of the property to him and whether in the circumstances of the case it was proper to make an order of demarcation in his favour.
At pages 101-102 of the printed record, the respondent testified in support of his counter-claim to the effect that the property in dispute originally belonged to one Garba Hadeja Kato, the father of the 2nd and 3rd appellants and the husband of the 1st appellant. The 1st appellant is the mother of the 2nd and 3rd appellants. That the said Garba Hadejia died sometime in 1964, and his property, including No. V. 10 Ahmadu Bello Way, Kaduna, was distributed among his heirs. That in addition to the appellants herein, another son, Musa Garba, born of a different mother, also survived him. He tendered a sketch of the house, which was admitted in evidence as exhibit 1.
He testified that Musa sold his portion of the house (painted red on exhibit 1) to one Hajia Ladi sometime around 1965 for ?55 (fifty five pounds); that Hajia Ladi died and the portion sold to her devolved on her heir, Sani, who in turn sold it to one Alhaji Auwal. The respondent testified further that he subsequently purchased the said portion of the house from Alhaji Auwal for the sum of N35,000.00.
He tendered the title document between Musa and Hajia Ladi and the document between himself and Alhaji Auwal in evidence. They were admitted in evidence as exhibits 2 and 3 respectively, along with their English translations as exhibits 2A and 3A. He also testified that after he purchased the property, he let it out to tenants and that he was not challenged until the appellants began their acts of trespass.
The respondent stated that his tenants had been complaining about the acts of the appellants; that they had built a toilet on his portion of the land, which did not exist at the time he bought it. He therefore prayed the court to demarcate the property.
As noted earlier in this judgment the respondent’s evidence was unchallenged. He was also not cross-examined by the appellants. The learned trial Judge in his judgment at page 120 of the record accepted the unchallenged evidence of the respondent and declared the sale of the property in dispute as legal and valid.
It is trite that where evidence is unchallenged and uncontroverted the court is entitled to act upon it. See: Onwuka & Anor. v. Omogui (1992) 3 NWLR (Pt.230) 393, (1992) 3 SCNJ 98; American Cynamid Co. v. Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (Pt.171) 15. It is also settled that where evidence is unchallenged only minimal proof is required of the person upon whom the burden of proof lies. See: Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt.361) 124, (1994) 9 SCNJ 161. In the instant case, it was proper for the learned trial Judge to accept and rely on the unchallenged oral and documentary evidence of the respondent to hold that the sale of a portion of the property in dispute marked red on exhibit 1 was legal and valid. I cannot fault the finding of the trial Judge, in view of the cogent and uncontroverted evidence of the respondent, that the appellants committed acts of trespass on his portion of the property and had even erected a toilet thereon. Consequently, I hold that the order demarcating the property was properly made in the circumstances of this case. I find no reason to interfere with the decision in this regard. I therefore resolve the first issue against the appellants and in favour of the respondent. With regard to the second issue for determination, it was urged in paragraph 4.2 of the appellants’ brief that the respondent did not lead any evidence to prove or establish fraud and that since the respondent could not remember when he purchased the rooms, he was not in a position to inform the lower court whether the certificate of occupancy was re-issued after the rooms were sold to him.
Learned Counsel to the respondent at paragraph 4.1 of his brief referred the court to paragraph 26 of the further amended statement of defence and counter-claim dated 8/12/99 at page 63 of the printed record, wherein the respondent pleaded that the 2nd appellant applied for a new certificate of occupancy over the entire property and paragraph 30 thereof wherein the particulars of the alleged fraud were set out. He submitted that the respondent duly testified in support of these averments at pages 102-103 of the record and that his evidence was unchallenged.
It is settled law that an allegation of fraud must be specifically pleaded with particulars and proved beyond reasonable doubt. See Highgrade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 NWLR (Pt.167) 290, (1991) 1 SCNJ 1; UAC Ltd. v. Taylor (1934) 2 WACA 67. The respondent specifically pleaded the allegation of fraud against the 2nd appellant in paragraphs 26-29 of the further amended statement of defence/counter-claim at pages 62-63 of the record. He also pleaded particulars of the alleged fraud in paragraph 30(a)-(f) thereof.
The evidence of the respondent at pages 102-103 of the printed record in support of the allegation of fraud and its particulars is as follows:
“The original certificate of occupancy of the house is in possession of the plaintiffs since they own the largest portion of the house. The 2nd defendant has already changed the old certificate of occupancy in his name.
This was done more than 10 years, after the house was divided to heirs of the original owner of the house. The certificate of occupancy made by the 2nd plaintiff over the whole house including my own portion. The danger of the certificate of occupancy made by the 2nd plaintiff in his name is that he is liable to sell the entire house, including my four rooms to somebody or mortgage the certificate of occupancy to a bank or any other person.
… I have documents to show that the 2nd plaintiff has applied for and has secured a transfer of the original certificate of occupancy of house No. V. 10 Ahmadu Bello Way.
I can identify the original certificate of occupancy. It was issued between 60-70 years ago. It was issued in the name of Garba Hadejia Kato. I can identify the transfer papers and the new certificate of occupancy.
The new certificate of occupancy was issued in the name of Sule Garba Kato.” (emphasis mine).
The certificate of occupancy obtained by the 2nd appellant was admitted in evidence and marked exhibit 4; a certificate of temporary occupancy dated 5/12/31 was admitted in evidence and marked exhibit 5; the application for the transfer of right to occupancy dated 27/11/78 was admitted in evidence and marked exhibit 6. The appellants did not challenge the evidence reproduced above or the exhibits tendered in support thereof at the trial.
It is not in dispute that the property known as No. V. 10 Ahmadu Bello Way, Kaduna, was shared between the heirs of the late Garba Hadeja Kato soon after his death in 1964. It is also not in dispute that one of Garba Hadeja Kato’s heirs, Musa Garba sold his portion of the property to one Hajia Ladi. That upon her death, her portion devolved on her heir, Sani who sold same to one Alhaji Auwal, who eventually sold to the respondent. It is also not in dispute that the 2nd appellant applied for the issuance of a new certificate of occupancy in his own name and in respect of the entire property at V. 10 Ahmadu Bello Way, Kaduna. It is clear from the unchallenged evidence before the lower court, that at the time the 2nd appellant applied for the issuance of a new certificate of occupancy in his own name vide exhibit 6, he was not the sole owner of the property.
It is also evident from paragraph 19 of the further amended statement of defence and counter-claim and exhibits 2 and 2A tendered in support thereof that as at the time 2nd appellant applied for a transfer of the certificate of occupancy to his name the portion shared to Musa Garba had been sold to a third party. Therefore, whether or not the certificate of occupancy was re-issued before or after the sale to the respondent, is immaterial. The respondent was able to satisfy the court that in obtaining the new certificate of occupancy, the 2nd appellant fraudulently misrepresented the facts to the Kaduna Local Government and obtained a certificate of occupancy in his own name, covering the entire property at V. 10 Ahmadu Bello Way, Kaduna, when he is only entitled to a portion thereof. I hold that the learned trial Judge was perfectly in order in light of the unchallenged evidence before him to declare the certificate of occupancy dated 19/11/79, issued in the name of the 2nd appellant invalid. I hold that it was proper for him to set it aside. I accordingly resolve the second issue against the appellants and in favour of the respondent.
On the whole, I find no merit in this appeal. It fails in its entirety and is hereby dismissed. The judgment of the lower court delivered on 7th July, 2000, is hereby affirmed. There shall be N5,000.00 costs against the appellants in favour of the respondent.
Other Citations: (2005)LCN/1729(CA)
