IN THE SUPREME COURT OF NIGERIA
SUIT NO: SC228/2001
PETITIONER: MR. AUDU OTUKPO
RESPONDENT: APA JOHN
DATE DELIVERED: 2012-03-23
WALTER SAMUEL NKANU ONNOGHEN, IBRAHIM TANKO MUHAMMAD, OLUFUNLOLA OYELOLA ADEKEYE, BODE RHODES-VIVOUR, MARY UKAEGO PERTER-ODILI
This is an appeal against the judgment of the Court of Appeal, Holden at Kaduna in Appeal No CA/K/110/1997 delivered on the 14thday of December, 1999 in which the court dismissed the appeal of the appellant and affirmed the decision of the Kaduna State High Court of Justice, Holden at Kaduna in suit No KDK/KAD/335/1994 delivered on the 20thday of January, 1997 in favour of the respondents who were the plaintiffs in the action.
The action involves a piece of land measuring about 7 x 50 feet which adjoins Plot No A2, Ungwai Television, Kaduna.
The respondents took out a writ of summons against the appellant claiming a declaration that the small piece of land, supra belongs to them, Sixty thousand naira (N60,000.00) damages for trespass and injunction.
Appellant counter-claimed for title and an order nullifying and invalidating the certificate of occupancy No KDH/A/007143, Two hundred thousand naira (N200,000.00) damages for trespass and an injunction. The trial court granted the reliefs of the respondents and dismissed the counter-claim.
It is the case of the respondents that their late father, John Agbalikwunu purchased the disputed land from one Mallam Ali and got into possession of same; that after the construction of the dual carnage way from Kaduna town to Command Secondary School junction, their father wanted to start development of the land only to be confronted by one Audu Zakwai who laid claim to the portion now in dispute meaning 50 x 7 feet resulting in a peaceful settlement by which John Agbalikwunu, respondents’ father paid the sum of one thousand (N1,000.00) to the said Audu Zakwai for the disputed piece or portion of the land in full settlement for which Audu Zakwai issued a receipt which was tendered in the proceedings and marked Exhibit 1. After the death of John Agbalikwunu, the appellant, sometime in 1994 laid claim to the piece of land which resulted in the instant suit. Exhibit 2 is the Certificate of Occupancy obtained by the respondents in respect of the land in dispute, which appellant sought to set aside.
On the other hand, the case of the appellant is that in 1974 he purchased a piece of land at Ungwar Television Kaduna from one Gimba James and built a mud house thereon in which he kept his senior wife while he lived at Kaduri Prison Staff Quarters with his second wife; that he completed a second house on the land in 1978; that during the construction of the express way in 1977 part of the land was affected as the first building was demolished, leaving a small piece which appellant used for farming that the said piece is the subject of the dispute between the parties.
The issues for determination as identified in the appellant brief filed on 7th November, 2005 by E. O. Aneme, Esq. are as follows:-
‘1. Whether the appellant did not prove fraud in the procurement of the Certificate of Occupancy No KDH/A007143, i.e ‘Exhibit 2’ by the late John Agbalikwunu.
- Whether from the totality of evidence before the trial court, the respondents proved their claim and the appellant did not prove his counterclaim and the judgment not perverse to warrant the interference of the Court of Appeal.’
The above issues were adopted by learned counsel for the respondents in the respondents brief deemed filed on 24th September, 2008. From the two issues reproduced supra, it is very clear that the appeal is on the facts of the case, not law.
In arguing Issue 1, learned counsel for the appellant submitted that appellant proved the allegation of fraud in the procurement of the Certificate of Occupancy in question, Exhibit 2, referring to the evidence of appellant at page 58 line 379 where appellant is reported to have said ‘They must have stolen my plot’ and that the same was corroborated by the evidence of DW4 at pages 66 and 67 lines 598-622 and DW5 at 69 and 70 lines 652 – 660; that the above evidence was not challenged.
On the sub-issue of pleading of particulars of fraud as provided under Order 24 Rule 6(1) of the Kaduna State High Court (Civil Procedure) Rules 1987, learned counsel submitted that the particulars need not be itemized; that it is sufficient if sufficient particulars are found in the relevant pleadings showing fraud, for which he referred to paragraphs 18, 20, 33 and 34 of the Statement of Defence and urged the court to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondents submitted that fraud was raised by appellant as an issue to defeat the declaration of title claimed by the respondents and being a criminal allegation, it has to be proved beyond reasonable doubt relying on Section l3 8(1) of the Evidence Act; Ndoma-Egba v ACB PLC (2005) ALL FWLR (Part 283) 152 at 171; Ogbole v Lawani (2000) FWLR (Part 187) 844 at 859 etc; that appellant failed to discharge the burden placed on him by law that appellant has not demonstrated that the findings of the lower courts on the matter are perverse.
It is the further submission of learned counsel for respondent that even though fraud was pleaded, no particulars thereof were supplied by appellant contrary to the provisions of Order 24 Rule 6 of the Kaduna State High Court (Civil Procedure)Rules, the case of Adimora v Ajufor (1988) 3 NWLR CPt.8) 1 at 13; West African Breweries Ltd v Savannah Ventures Ltd (2002) FWLR (Part 112) 53 at 74; Okonkwo v Cooperative and Commerce Bank (Nig) Plc & Ors (2003) FWLR (Part 154) 457 at 518 and urged the court to resolve the issue against appellant.
Before proceeding to decide whether appellant met the standard of proof required in a criminal allegation – whether in a criminal matter or civil proceedings – it is necessary to determine whether the issue of fraud was pleaded by appellant as required by the relevant Rules of court. In the respondent’s brief of argument there is no doubt that respondents agree that fraud was duly pleaded by appellant as it was submitted on their behalf in paragraph 5.01 last sentence at page 4 of the brief as follows:
‘We submit therefore, that fraud was therefore not merely raised but raised as an issue to defeat the declaration of title claimed by the respondents.’
However the dispute between the parties in relation to the issue under consideration has to do with the issue as to whether appellant provided particulars of the alleged fraud and whether he proved the allegation beyond reasonable doubt.
Order 24 Rule 6(1) of the Kaduna State High Court (Civil Procedure) Rules provides that fraud must be specifically pleaded so as not to take the opposite party by surprise.
It is however the case of the appellant that sufficient particulars of the fraud alleged can be inferred from paragraphs 18,20,33 and 34 of the Statement of Claim. The question is what is the reaction of the lower court to the issue under consideration’ At page 186 of the record, the Court had this to say inter alia: ‘I have carefully considered the averments in paragraph 18, 20, 30 and 39 of the Statement of Defence/Counterclaim where the allegation of fraud was made. The issue of fraud is directly in issue, however the particulars of fraud has not been specified as required by Order 24 Rule 6(1) of the Kaduna State High Court (Civil Procedure) Rules. 1 also fined that the appellant has not proved the allegation of fraud beyond reasonable doubt. The appellant did not prove fraud in the procurement of the Certificate of Occupancy No KDH/A/0077143.
What did the trial court say in relation to the matter’ At pages 99 – 100, the trial judge found as follows:-
‘I was urged to infer particulars of fraud from the counter-claim/statement of defence.
By paragraphs 18, 20, 34 and 39 of the statement of defence/counterclaim, fraud has been made an issue. The defendant did not give particulars of fraud. Under Order 24 Rule 6 (1) of the High Court (Civil Procedure) Rules 1987 fraud has to be specifically pleaded.’
The findings of facts in relation to the issue under consideration by the lower courts are concurrent and are borne out of the evidence on record. Learned counsel for appellant had also not demonstrated that the said findings are perverse as required by law.
In my judgment, the fact that appellant has urged the court to infer from the paragraphs of the statement of defence/counter claim particulars of fraud is a clear admission that the said particulars had not been specifically pleaded otherwise there would be no need to infer them. Secondly, it is trite law that in any proceeding, whether criminal or civil where allegation of the commission of a crime is an issue the allegation must be proved beyond reasonable doubt – see Section 13 8( 1) the Evidence Act. In the instant case the criminal allegation relate to the commission of the crime of fraud by the respondents in relation to the procurement of the Certificate of Occupancy in question which appellant failed to prove.
I abide by the consequential orders in the leading judgment.