ADAMU v. SULEIMAN (2020)

ADAMU v. SULEIMAN

(2020)LCN/14387(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, June 04, 2020

CA/K/509/2018

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

ENG. ADAMU MUSA ADAMU APPELANT(S)

And

ALHAJI SANI SULEIMAN RESPONDENT(S)

RATIO

STANDARD OF PROOF IN CRIMINAL CASES

Admittedly proof of criminal offences, even in civil cases is beyond reasonable doubt, the facts on the ground being clearly evident of a scam by the Consultant. See Saleh v Abah (2017) 12 NWLR Part 1578 Page 100 at 153-154 Para G-D per Peter-Odili JSC; Nyesom v. Peterside (2016) 7 NWLR Part 1512 Page 452 at 533 Para E-F per Kekere-Ekun JSC. It is, however not the law that a party must call a particular witness, such as the Consultant, if he can prove his case otherwise. See Musa v. Yerima (1997) 7 NWLR Part 511 Page 27 at 50 Para E, per Ogundare JSC. PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State delivered on 16/7/18 by Hon. Justice David Wyoms granting the reliefs of the Plaintiff, Respondent herein, and dismissing the Counter Claim of the Appellant. Aggrieved, the Appellant appealed to this Court, by Notice of Appeal filed on 1/4/18, containing four grounds of appeal.

The subject matter of the suit before the lower Court, culminating in this appeal, relates to competing claims of proprietary interest by both parties in respect of property situate at Plot No. 1 Block 1 Nigerian Institute for Trypanasomiasis Research (NITR) Residential Layout. The disputed property forms part of the large expanse of land belonging to the Federal Government and held at the instance of the Federal Government by NITR. The Governing Board of NITR commissioned a Consultant, Nurudeen & Co Nigeria Ltd, hereafter referred to as “the Consultant”, to carry out the surveys, re-planning and management of the open lands in the property with a view to allocating the same to deserving staff of NITR and members of

the public under the Site and Services Scheme, and also to raise revenue for NITR. Both parties claimed the same allocation to them by the Consultant.

While the Respondent, as Claimant, purchased his plot from HRH Shehu Idris, the Emir of Zazzau, who was an allottee from NITR in 2006, the Appellant purchased his plot also from a direct allottee of NITR, Usman Mairiga, through the Consultant, acting on behalf of Usman Mairiga in 2007.

The Appellant complained that he started construction in 2001 and 2002 by putting up a perimeter fence and gate house after all the necessary permits had been obtained and also commenced construction work on the main building up to lintel level. In January 2013, the Respondent came with some people to the site, claiming ownership of the land and pulled down the Appellant’s structure, leading both parties to the Metropolitan Police Division, Pantaka, Kaduna. The suit at the lower Court by the Respondent emanated in response. The Appellant counterclaimed for title. The trial Judge, as aforesaid, granted title in favour of the Respondent, holding the title of his predecessor as first in time and holding there to be

collusion between the Consultant and the Appellant.

In the Appellant’s Brief of Arguments filed by Abdulazeeez Malik, Esq. of Abdulmalik Abdulazeez & Co on 8/11/18, three issues were distilled for the Court’s determination, namely:
1. Whether the learned Trial Judge was right to have admitted and relied heavily on Exhibits 9, 10 and 11 which were not pleaded, front loaded nor averred to facts relating to them in accordance with the provisions of Order 3 Rule 2 and Order 17 Rule 7 (1) of Kaduna State High Court (Civil Procedure) Rules 2007 and the Laws.
2. Whether the Learned Trial Judge was justified when he entered judgment against the Appellant and Nurudeen and Company Nigeria L.t.d on a criminal allegation of collusion under Section 135 (1) of Evidence Act, 2011 without proof or hearing from the said Consultant.
3. Having regard to the pleadings and evidence adduced, whether the Plaintiff/Respondent proved his root of title to the land in dispute to warrant a declaration of title, trespass and an order of perpetual injunction in his favour by the Trial Judge.

The Respondent’s Counsel, O.I. Habeeb, Esq. of Habeeb & Co

in the Respondent’s Brief of Arguments filed on 8/1/19 distilled two issues for determination, to wit:
1. WHETHER the trial Court was justified in admitting in evidence and relying on letter of agreement dated 08/01/09, letter of conveyance dated 18/11/06 and survey plan dated 13/11/2007 which were tendered through the Appellant as DW1 and admitted as Exhibits 9 , 10 and 11 respectively under cross examination?
2. WHETHER the trial Court was right and justified in granting the reliefs sought by the Respondent and dismissing the counter claim of the Appellant having regard to the evidence led by the parties?

The issues distilled by both parties are similar, I note. I shall accordingly adopt the Respondent’s issues, being more succinct and encapsulating of the Appellant’s issues.

THE ISSUES FOR DETERMINATION ARE THUS THE FOLLOWING:
1. Whether the trial Court was justified in admitting in evidence and relying on Exhibits 9, 10 and 11, being letter of agreement dated 08/01/09, letter of conveyance dated 18/11/06 and survey plan dated 13/11/2007 respectively, which were tendered through the Appellant under cross

examination but not frontloaded.
2. Whether the trial Court was right, having regard to the evidence led by the parties, to have granted the reliefs sought by the Respondent and dismissing the counter claim of the Appellant?
The 2nd issue formulated by the Appellant on whether the trial judge was justified in entering judgment against the Appellant and the Consultant on criminal allegations without calling the Consultant, will be accommodated under consideration of the 2nd issue.

THE 1ST ISSUE FOR DETERMINATION:
Whether the trial Court was justified in admitting in evidence and relying on Exhibits 9, 10 and 11, being letter of agreement dated 08/01/09, letter of conveyance dated 18/11/06 and survey plan dated 13/11/2007 respectively, which were tendered through the Appellant under cross examination.

The Appellant’s Counsel pointed out that the Respondent frontloaded eleven documents with his pleadings. He however tendered Exhibits 9, 10 and 11 under cross examination of the Appellant, which documents were neither pleaded nor frontloaded, not even in his Reply to the Counter Claim, yet the trial Court relied upon these documents

in arriving at its decision. Referring to Order 3 Rule 2(1) and Order 17 Rule 7(1) of the Kaduna State Civil Procedure Rules on the documents to accompany the Writ of Summons and the consequences of failing to do so, he submitted that the Writ of Summons was thus incompetent, citing MADUKOLU VS NKEMDILIM (1962) ALL NLR, PT.2, 581 and HON. JUDGE, UPPER SHARIA COURT, TUDUN WADA, KADUNA & 15 ORS VS ALIYU J.D UMAR & 2 ORS Appeal No. CA/K/205/2010 per DALHATU ADAMU J.C.A.

Citing the decisions in SKYE BANK PLC VS. PERONE NIG. LTD (2016) LPELR-41443 (CA, Ibadan). Appeal No. CA/1/124/2012, per TSAMANI J.C.A @ 65-66 Para. D-B and INUWA VS BAYERO UNIVERSITY, KANO & ANOR (2016) LPELR-41615 (CA, Kad) Appeal No.CA/K/76/2015 per ADEFOPE OKOJIE J.C.A @ 23 Para. E-F, he submitted that the purpose of front loading is to ensure that there is no trial by ambush and to expedite hearing of cases. He submitted that front loading is to enable the parties know not only the case they are to meet at the trial but also the oral and documentary evidence by which they are to be proved. It was immaterial, he said, that the documents were not objected to either orally in the

Appellant’s written address. He requested that the Court expunge the documents, as where inadmissible evidence is admitted, it is the duty of the Court not to act upon it, notwithstanding the admission of the document by the Appellant and failure of his Counsel to object thereto. He cited ALH. ABUBAKAR DANGURU VS. UNITY BANK PLC (2014) LPELR-23987, Page 23–24 Para. F–C (Appeal No. CA/K/304/2013).

The Respondent’s Counsel, however submitted that the said exhibits were tendered to contradict the Appellant that he bought the disputed property from Usman Mairiga who he claimed to be the one that was allocated the disputed property as contained in Exhibit 1(one) tendered by the Appellant. He accused the Appellant of, in one breath, tracing his root of title to the disputed property by purchase from one Usman Mairiga and in another breath of purchasing the same from Dr. Shehu Idris. As the exhibits were tendered during cross examination with a view to contradicting the Appellant, they do not require to be pleaded for them to be admissible pursuant to the provision of Section 232 of the Evidence Act 2011, he submitted citing

OGU Vs M.T & M.C.S LTD (2011) 8 NWLR (PT.1249) 345 at 378 F – H.

Counsel referred to paragraphs 3 and 4 of his Statement of Defence, submitting that parties are not required to plead documents/evidence but facts. Facts relating to collusion and double allocation of the disputed property had been pleaded, thus rendering Exhibits 9, 10 and 11 admissible without specifically pleading the said documents. He referred to the cases of Order 17 Rule 2 of the Kaduna State High Court (Civil Procedure) Rules 2007, IPINLAIYE II VS OLUKOTUN (1996) 6 NWLR (PT.453) 148 at 166 A – B, DUNALIN INVT. LTD. VS BGL PLC (2016) 18 NWLR (PT.1544) 262 at 342 H – 343 A – C;

In his Reply, Appellant’s Counsel submitted that the question is not whether the documents are relevant but whether the conditions necessary for their admissibility had been fulfilled. He distinguished the cases cited by the Respondent.

Exhibits 9 and 10, the documents in contention, are as follow:
Exhibit 9 is a handwritten document stating as follows:
EXHIBIT 9
“Letter of agreement
I Ahmed Moh’d on behalf of Shehu Idris hereby agreed to sell my

land (Plot No. 1) NTIR Land allocation to Eng. Adamu Musa Adamu at Six Million Five Hundred Naira (N6,500,000.00) only the said amount was paid in the bank instrument (Cheque) of Bank PHB Cheque No. 30156945. The transaction was in the presence of:
1. Gambo Abdullahi Yankajo signed
2. Zainab Yusuf signed 08/01/09
3. Abdulazeez Kalgo signed
4. Umar Salisu signed 08/01/09”

Exhibit 10
NURUDDEEN & CO. NIG. LIMITED
Appointed LAND MANAGEMENT CONSULTANTS TO NIGERIAN INSITUTE FOR TRYPANOSOMIASIS & ONCHOCERCIASIS RESEARCH
TEL 062-216541, 080334926616
SITE AND SERVICES SCHEME APPROVAL UNDER
NITR LAND IN KADUNA
NCN/NITR/LAN/001
DATE: 18TH Nov. 20
DR. SHEHU IDRIS
…
CONVEYANCE OF LAND ALLOCATION APPROVAL BY THE GOVERNING BOARD OF NITR UNDER SITE AND SERVICES SCHEME
With reference to your application dated 16th March, 2006, for land at NITR under Site and Services Scheme Residential/Commercial Purpose, you are hereby granted via Governing Board Approval to build on Plot No. 1 Block No Korau Road at NITR Residential Layout subject Absolutely to the following conditions:-
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That you are to re-establish any Missing Beacons before the commencement of the development.
ii. That the area reserved for recreation and other open spaces, as contained on the approval scheme Layout shall not be built-up in the future, and at least 5 trees must be planted within the premises to protect the environment.
iii. That you are to maintain fencing heights of 1.5m in the front elevation, or any side fronting and the road, 05m of which is to be either of iron grill or perforated blocks, and 2.0m of solid sand create blocks at the rear sides.
iv. That you should notify the Project Manager before you commences construction of the site, to check the setting out of the building.
v. That you are to maintain on one entrance to the premises.
vi. That the building if constructed shall only be used for the purposes of which the Plan Approval is granted and no change of usage is allowed without the formal consent of the Approved NITR Land Consultants.
vii. Failure to comply as stated above is contravention of the Scheme and the approved Consultants will take appropriate action against you.
2. That you for your active

Participation in the Programme called Site and Services Scheme as approved by the Federal Government White Paper Recommendation.
You are to make a Draft in favour of the above named Company within 7 days.
Signed
Muhammed Nurrudden Muhammed”.

EXHIBIT 11 is the site plan of the land stated to be granted to Dr. Shehu Idris dated 13/11/2012 and signed by the Registered Surveyor, L. Kantiok.

Justifying the reception of these documents, the Respondent’s Counsel has submitted that they were received under cross examination of the Appellant, by virtue of Section 232 of the Evidence Act to contradict him that he bought the property from Usman Mairiga, the allottee of the land.

In order to determine whether these documents were rightly admitted by the trial Court, it is necessary to refer to the pleadings and the case of the parties.

The case pleaded by the Appellant and his testimony before the lower Court was that he purchased the land from one Usman Mairiga, through the Consultant, acting as the agent to Mairiga.

He averred in Paragraphs 7 and 8 of his Statement of Defence as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Paragraph 7
“Pursuant to the above, the Defendant Predecessor in title, one Usman Mairiga was validly allocated Plot. 1 Korau Road, NITR Residential Layout, U/Rimi Kaduna.
Paragraph 8
“In January, 2009 the Original Allottee, Usman Mairiga sold and transferred the Plot to the Defendant though his Agent, (Nurudeen and Company Nig. Ltd) for the sum of N6,500,000.0 (Six Million, Five Hundred Thousand Naira) who handed over the title documents and a Sales Agreement to him. The Conveyance of Land Allocation Letter dated 13/3/2007 with a Sketch Plan of the Plot and the Sales Agreement dated 9/1/2009 are hereby pleaded.”
He tendered in proof the following documents:

Exhibit 1 – Letter of Conveyance and Allocation Approval to Usman Mai Riga by the Governing Board of NITR under Site and Services Scheme in respect of “Plot No. 1 Block KORAU Rd at NITR Residential Layout dated 13/3/2007.

Also tendered, as Exhibit 2, is a Sales Agreement dated 9/1/2009 from one Umar Yahaya of Nurudeen & Co. Nig Ltd “on the instruction of Usman Mairiga of Zazzau Emirate Council” to the Appellant in respect of “Plot No. 1

Korau Road, NITR Residential Layout Unguwan Rimi, GRA Kaduna “for the sum of N6,500,000.00 (Six Million Five Hundred Thousand Naira)”

Exhibit 2 stated that payment was “in full” and that “all the documents in respect of the plot” were handed over to the buyer”

Exhibit 2 is hereby set out:
“SALES AGREEMENT! 09/01/2009
I UMAR YAHAYA OF NURUDDEEN & CO. NIG. LTD 4th Floor NIDB building Mohammadu Buhari way, Kaduna today 9th January, 2009 on the instruction of USMAN MAIRIGA of Zazzau Emirate Council, Zaria and on his behalf sold his Plot of Land known as Plot No. 1, Korau Road, NITR Residential Layout Ungwan Rimi, GRA, Kaduna to ENGR ADAMU MUSA ADAMU of Gskiya Layout, Zaria the rate of Six Million, Five Hundred Thousand Naira (N6,500,000.00) only. The payment was made in full and all the documents in respect of the Plot handed over to the Buyer in the presence of the following:
Signed
Signature of SELLER
UMAR YAHAYA
Signed
Signature of BUYER
ENGR. ADAMA MUSA ADAMU
Signed
Witness to SELLER
BALA LAWAL
Signed
Witness to BUYER
UMAR SALISU”

Thus the pleadings and exhibits tendered, the case of the Appellant is that his predecessor in title is Usman Mai Riga.

Under cross examination, the response of the Appellant to questions put to him by the Respondent’s Counsel, as contained at Page 232 of the Record, is as follows:
“I bought the property from Usman Mairiga through his agent. I don’t know the whereabouts of Usman Mairiga. I have never met Usman Mairiga in the course of this transaction. I don’t have any document signed by Usman Mairiga indicating I bought the property from him. The agent of Usman Mairiga is Umar Yahaya of Nurudeen and Co. Nurudeen & Co is the same Company that allocated the disputed property to Usman Mairiga. I am aware that Nurudeen & Co. were engaged by NITR as Consultants in respect to the disputed property. I do not know the duration of the engagement. The contact address used by Usman Mairiga was Zazzau Emirate Council. The Plaintiff and myself appeared before the Police in respect to the disputed property and we were both asked to submit documents in respect to the disputed property to support our claim. The

letter of agreement I submitted to the Police has the name of Gambo Abdullahi Yankajo & Zainab Yusuf as witnesses. One Ahmed Mohammed was the agent. The sum of N6,500,000.00 was the consideration paid through Bank PHB. The said letter indicated the owner to be Shehu Idris in that letter I submitted conveyance letter and sketch plan. This is the document. Underlining mine.

O.I. Habeeb: I seek to tender same in evidence.
M. Abdullazeez: We have no objection.
Court: Letter of agreement dated 8/10/2009, certified on 19/4/29016, conveyance of land allocation approval by NITR dated 18/1/2006 to Dr. Shehu Idris, sketch plan of land granted to Dr. Shehu Idris admitted and marked as Exhibits 9, 10 and 11 respectively.
Signed
14/6/2017”

Justifying the admissibility of these documents, the Respondent’s Counsel has cited Section 232 of the Evidence Act
Section 232 of the Evidence Act 2011 (as amended) states:
“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is cross-examined without

such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him;
Provided always that it shall be competent for the Court at any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purposes of the trial, as it deems fit.”

The Respondent’s Counsel, relying on his pleadings in justification of the reception of these documents, has referred to the Respondent’s Reply to the Statement of Defence, contained at Pages 132-134, at Paragraphs 3, 3(f), 4 (i) , where it was averred as follows:
“3. The Plaintiff states that there is no one known as USMAN MAIRIGA as he never existed as a person but a fiction created by the Defendant in collusion with the alter ego of Nurudeen and Company Nigeria Ltd with a view to unlawfully create adverse interest to that of the Plaintiff in the disputed property.
3(f) The purported

sale of the disputed property to the Defendant as manifested in the sale agreement dated 09/01/2009 is another manifestation of the collusion between the Defendant and officers of Nurudeen and Company Nigeria Ltd in a futile attempt to divest the Plaintiff’s predecessor’s title in the disputed property albeit unlawfully.
4. The Plaintiff shall contend at the hearing that the alter ego of Nurudeen and Company Nigeria Ltd, took undue advantage of the position granted to him by the Governing Council of Nigerian Institute of Trypanosomiasis Research (NITR) who are the original title holder of the disputed property to carry out allocations of plots of land and consequently abused same.
PARTICULARS
(i) The alter ego of Nurudeen and Company Nigeria Ltd engaged in the unwholesome act of double allocation of same plot of land to different individuals as manifested in the attempted re-allocation of the disputed property to a non-existing Usman Mai Riga having earlier allocated the disputed property to the Plaintiff’s predecessor in title.”

The Respondent, it is clear from the foregoing, pleaded collusion between the Consultant

and the Appellant and also double allocation by the latter. The conveyance to “His Royal Highness Alhaji Dr. Shehu Idris”, dated 10/11/2006 (Exhibit D), the Conveyance to “Usman Mairiga” dated 13/3/2007 (Exhibit 1) and Exhibit 10 from the Consultant to “Dr. Shehu Idris” dated 18/11/2006 indeed show, if not collusion, then double allocation.

The Respondent was thus justified in his contention that the documents were tendered in proof of these allegations.

I agree, as submitted by the Appellant’s Counsel, that the purpose of frontloading of documents is to enable the parties know the case they are to meet at trial. It is also true, as submitted by Counsel, that Order 3 Rule 2(1) of the Kaduna State High Court (Civil Procedure) Rules 2007 stipulates that copies of documents to be relied upon shall accompany the Writ of Summons.

As also pointed out by the Appellant’s Counsel, it was held by this Court, by my humble self, in Inuwa v Bayero University, Kano (2016) LPELR-41615, that a document that is not pleaded, and where facts in support are not pleaded, renders the document inadmissible. It was also

held by me in that case that a party pleads a document either specifically or pleads the facts by which such a document is intended to support.
It was further held by me in the case above cited by the Appellant’s Counsel, and as submitted by the Respondent’s Counsel, that it is not every document that is required to be pleaded so long as facts are pleaded in support of the documents sought to be tendered. See also Ipinlaiye v. Olukotun (1996) 6 NWLR Part 453 Page 148 at 166, Para A-B per Iguh JSC; Odunsi v Bamgbala (1995) 1 NWLR Part 374 641 at 667, Para B-C per Adio JSC.

In the instant case, not only were facts pleaded in proof of which these documents were tendered, they were tendered under cross examination of the Appellant with a view to contradicting him. Where documents are tendered for the purpose of contradicting a witness, they are not required to be pleaded for them to be admissible, I hold, pursuant, as aforesaid, to the provision of Section 232 of the Evidence Act 2011 Supra.
It was held by this Court in the case of Ogu Vs Manid Technology & Multipurpose Co-Operative Society Limited (2011) 8 NWLR Part 1249 Page 345 at 378 F-H

“…Furthermore, in the case of Ipinlaiye II Vs Olukotun (Supra) at pages 91 – 92 of the report, the Supreme Court had stated thus:-
“In such a case, a document used in contradicting a witness is admissible in evidence even though it was not covered by the pleadings”
From this statement of law, it is clear that a document tendered under the provision of Section 209 of the Evidence Act, is admissible in evidence whether or not it was pleaded by any of the parties. In other words, the law is that such a document does not require to be pleaded to be admissible in evidence for that reason too. Exhibit P5 was rightly admitted by the Court even if it was not covered by the pleadings”

I accordingly hold that Exhibits 9, 10 and 11 tendered through the Appellant, under cross examination, were rightly received by the lower Court and resolve the 1st issue for determination against the Appellant.

THE 2ND ISSUE FOR DETERMINATION IS:
Whether the trial Court was right, having regard to the evidence led by the parties, to have granted the reliefs sought by the Respondent and dismissed the counter

claim of the Appellant?

The Appellant’s Counsel has submitted that the lower Court was in error to have granted a declaration of title in favour of the Respondent pursuant to answers elicited from DW1 in relation to Exhibits 9-11 and the Police Investigation. It also came to a wrong conclusion by finding that Usman Mairiga was never an employee of the Zazzau Emirate and that there was therefore an element of collusion between the Appellant and the Consultant when in fact there was no evidence from the Appellant that Usman Mairiga was an employee of Emirate Council. Citing the case of Pam Dalyop v Fidelis Madalla (2017) LPELR-43349 CA Pages 17 and 22, per Abiru JCA, he submitted that any evidence elicited either under examination in chief or under cross examination which are not pleaded or frontloaded go to no issue.

He submitted as another fundamental infraction of the rules of evidence committed by the trial Judge, that he failed to determine the circumstances under which Exhibits 9, 10 and 11 were submitted to the Police without calling the Police or the Consultant to give evidence in relation to those documents before “passing

Judgment” against the Appellant and the Consultant of criminal allegation of collusion under Section 135(1) without reference so Section 138 (1&2) of Evidence Act, 2011 and giving them an opportunity to defend themselves. The judgment was therefore unconstitutional under Section 36(1) of the 1999 Constitution. He cited R VS. Chancellor Of Cambridge (1723) 1 STR.557 @ 567 per Fortesque .J where he said, “the laws of God and man both gave man the opportunity to make his defence, if he has any”. He also cited the unreported case of Engr. Musa Adamu Vs. Alh. Sani Suleiman, Appeal No. CA/K/6/2015 where the case was sent back to Kaduna High Court for trial de novo. He urged the Court to set aside the Judgment of the Trial Court and to consider and evaluate the Appellant’s Counter Claim which the trial Court failed to do and enter Judgment in his favour under Section 15 of the Court of Appeal Act having proved his equitable interest from his root of title.

The trial Judge, he also submitted, held the offence of collusion and fraud established by the Respondent against the Appellant and the Consultant. These allegations, being criminal

offences should have been proved beyond reasonable doubt. He cited SHELL PETROLEUM DEVELOPMENT CO. L.T.D VS VICTOR OLAREWAJU (2008) LPELR, 3046 (SC) in Appeal No. SC/197/2002. Having failed to adduce evidence from the Police who elicited Exhibits 9, 10 and 11, coupled with the refusal of the Respondent to call the Consultant to give testimony on how the documents came into being and the circumstances of their existence, the Respondent was in breach of Section 135 (1) and 138 (2) of the Evidence Act, 2011 and since this formed the basis of the lower Court’s Judgment, it rendered the same perverse and liable to be set aside by this Court.

Appellant’s Counsel again submitted that the trial Judge was wrong in holding the parties to be ad idem on the location of the land, as there is a great difference between the land allocated to the Respondent and that of the Appellant. He pointed out that the Respondent, under cross examination did not know the dimension of the property in dispute. For a declaration of title and trespass, the identity of the land with certainty is a sine qua non. Furthermore, the title document of the Appellant has a sketch map

whereas that tendered by the Respondent has none. The Appellant, he said, had proved his counterclaim, having been recognized by NITR and the Consultant and also as having obtained the necessary permits.

He queried the conclusion of the lower Court that the document of title of the Respondent, being earlier in time was better in law, as the common vendor had denied being the maker of the document, in addition to other Exhibits, such as 3 and 4. The question should have been who had the better title and not simply whose title was earlier in time and had obtained approval or a Certificate of Occupancy. It should be borne in mind, he submitted, that at common law, where questions of title to land arise in litigation, the Court is concerned only with the relative strength of the title proved by the rival Claimants. The party with the better title is entitled to succeed. By failing to pronounce on all claims in the Counter Claim and issues properly placed before it, there was a miscarriage of justice.

In the Respondent’s Brief of Arguments, learned Counsel pointed out that the letter of conveyance to the Respondent (Exhibit D) issued on 10/11/2006

was first in time to that of the Appellants issued on 13/3/2007 (Exhibit1). Both, he said, were issued by the same grantor, Nurudeen and Company. Referring to the evidence elicited under cross examination, Counsel submitted that the Appellant appeared to be relying on conflicting documents of title and the former document of title is also suspect as the allottee was not known to the Emirate. Proof beyond reasonable doubt is not proof beyond all iota of doubt, he submitted, citing Saleh v Abah (2017) 12 NWLR Part 1578 Page 100 and Jimmy v State (2013) 18 NWLR Part 1386 Page 229.

Counsel submitted further that the call for joinder of the Consultant is unfounded as the lower Court was not called upon to deliver judgment against the Consultant, neither was judgment so delivered. In any event, by Order 13 Rule 16(1) of the Rules mis-joinder of a party does not defeat the claims in Court. A party, he said, can only file a claim against a party that he seeks relief against. He cited Peenok Investment Ltd Vs Hotel Presidential Ltd. (1982) 11 – 12 SC 1; Uku Vs Okumagba (1974) 1 All NLR (Pt.1) 475; P & C.H.C LTD VS MIGFO NIG. LTD (2009) 11 NWLR (PT.1153)

611 at 648 F – H and 649 A – B. He further submitted that it was not necessary for the Respondent to call either the police or the consultant to tender Exhibits 9, 10 and 11 or to require them to explain the circumstances under which the Appellant presented the said Exhibits to the police in view of the response given by the Appellant under cross examination.

With respect to the identity of the disputed land, Counsel submitted that the issue of identity of the disputed property had not arisen on the state of pleadings and evidence led at the trial, as the Appellant did not raise it and had in fact counter claimed for declaration of title in respect of the disputed property. Although both parties gave the disputed property different names, it referred to the same property. He cited ATANDA VS ILIASU (2013) 6 NWLR (PT.1351) 529 at 555 D; NWOKOROBIA VS NWOGU (2009) 10 NWLR (PT.1150) 553 at 584 E – F; ANYANWU VS UZOWUAKA (2009) 13 NWLR (PT.1159) 445 at 476 E – F

It was his further argument that the the trial Court did not rely solely on the issue of collusion between the Appellant and the Consultant to justify its grant of the

reliefs sought by the Respondent but equally relied on the principle of priority of interest, citing in support the cases of AYANWALE VS ODUSAMI (2011) 18 NWLR (PT.1278) 328 at 343 G; ASHEIK VS BORNO STATE GOVT. (2012) 9 NWLR (PT.1304) 1 at 35 A – B.

He pointed to the disparagement by the lower Court of the documents relied upon by the Appellant and letters signed in his favour by the Consultant after the effluxion of his tenure as Consultant. Having not appealed against this finding, the Appellant’s Counsel cannot complain against the same. Also having not appealed against the finding of the lower Court that entertaining the Counter Claim would be an academic exercise, the Appellant cannot now raise the same as an issue.

As rightly submitted by the Appellant’s Counsel, where there are conflicting claims to title by both parties, judgment is given to the party that can show better title.

In the instant case, the reliefs claimed by the Respondent, as Plaintiff, before the lower Court, per his Statement of Claim, is as follows:
13. WHEREOF, the Plaintiff claims against the Defendant as follows:-
a) A DECLARATION that the Plaintiff

has acquired equitable interest in the property situate at Plot 1 Block No. 1 Nigeria Institute for Trypanasomiasis Research (NITR) residential Layout, Kaduna occasioned by the sale transaction between the Plaintiff and the original aloottee as evidenced by the sale agreement dated 30th day of April, 2013.
b) A DECLARATION that the Defendant does not have any valid title or interest in the property situate at Plot 1 Block No. 1 Nigeria Institute for Trypanasomiasis Research (NITR) Residential Layout, Kaduna.
c) A DECLARATION that the initial entry to the property situate at Plot 1 Block No. 1 Nigeria Institute for Trypanasomiasis Research (NITR) Residential Layout, Kaduna by the Defendant without he consent/permission of the Plaintiff constitutes trespass.
d) AN ORDER OF INJUNCTION IN PERPETUITY restraining the Defendant by himself or though the instrumentality of this agents/privies from further entry or erection of structures in the property situate at Plot 1 Block No. 1 Nigeria Institute for Trypanasomiasis Research (NITR) Residential Layout, Kaduna.
e) DAMAGES for trespass in the sum of N5 Million.

The Appellant counter claimed for the following:
1. A DECLARATION that the Defendant/Counter Claimant is the beneficial and equitable owner and holder in possession of Plot 1 Block No. 1 Nigeria Institute for Trypanasomiasis Research (NITR) Residential Layout, Ungwan Rimi, Kaduna mearsuing 907.25m2 by virtue of Conveyance of Land Allocation Letter by the Governing Board of NITR dated the 13th March, 2007 in the name of Usman Mairiga.
2. A DECLARATION that the conduct of the Plaintiff by encroaching into the Counter Claimant’s said plot of land and construction of building on same amounts to trespass and unlawful interference with the Defendant/Counter-Claimant’s right and interest over the plot of land.
3. AN ORDER OF PERPECTUAL INJUCTION restraining the Plaintiff and his Agents, servants from committing further acts of trespass and construction of building on the plot of land.
4. AN ORDER compelling the Plaintiff to pay the Counter Claimant the sum of N2,000,000.00 (Two Million Naira) for damages done to the Counter Claimant work done and materials left at site.
The Appellant has contended that parties were not ad idem on the location of the

property. The reason for this, he said, is that the Respondent referred to the property claimed by him in his Statement of Claim as “Plot 1 Block No. 1, Nigeria Institute for Trypanosomiasis Research Institute Residential Layout, Kaduna measuring 907.253,” while the Appellant in his Statement of Defence and Counter Claim refers to it as “Plot 1 Korau Road, at Nigeria Institute for Trypanosomiasis Research Institute Residential Layout Ungwan Rimi, Kaduna measuring 907.253”

As rightly pointed out by the Respondent’s Counsel, the identity of the property was not an issue at trial. Issues, I note, were not joined in the Appellant’s Statement of Defence and Counter Claim on the identity of the land. Indeed, as pointed out by the Respondent’s Counsel, the Appellant admitted that the plots being claimed were the same.

The Appellant stated this under cross examination at Pages 233 lines 14-16 of the Record as follows:
“The Plaintiff’s claim is in respect of No.1 Block I while my (sic) is No.1 Korau Road by my paragraph 14, my counter claim is also in respect of the plot claimed by the Plaintiff”

It is thus clear that even though no sketch map was attached to the Respondent’s Conveyance, as contended by the Appellant’s Counsel, reference by the Respondent to “Plot 1 Block 1” and the Appellant’s description as “Plot 1 Korau Road” all refer to the same property, I hold.

As held by the Supreme Court in the case of Ilona v. Idakwo (2003) 11 NWLR Part 830 Page 53 at 85 Para D-G per Edozie JSC, the burden of proof of identity of land will not exist when the identity is not a question in issue. The question of identity will only arise when the Defendant raises it in his Statement of Defence or the cross examination of the adversary and his witnesses. See also Adenle v. Olude (2003) All FWLR Part 157 Page 1074 at 1086 Para C-E per Uwaifo JSC; (2002) 9-10 SC Page 124; at 135 lines 15-20.

The issue of identity of the land was not an issue at the lower Court and can thus not be raised in this Court without the leave of this Court first had and obtained, I hold. See Idufueko v. Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima JSC (lead); Oforishe v Nigerian Gas Company Ltd

2 NWLR Part 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 311 Para C per Nweze JSC.

In proving ownership, the Respondent, as Plaintiff, presented the letter of conveyance to his predecessor in title, His Royal Highness, Alh Dr. Shehu Idris by the Consultant (Exhibit D) dated 10/11/2006. He also presented the Sale Agreement between his said predecessor in title and himself dated 30/4/13 (Exhibit H).

Impugning the Appellant’s title, he tendered Exhibit I, being a letter dated 1/7/14 from the Commissioner of Police, Department of Criminal Investigation Kaduna addressed to the Secretary Zazzau Emirate requesting to know if Usman Mairiga is a staff of the Council and the reply of the Council dated 3/7/14, Exhibit J, denying that he is a staff of the Council.

The Appellant in proof of his title, tendered the Conveyance to his predecessor in title, Usman Ma Riga C/O Zazzau Emirate Council, Zaria, dated 13/3/2007 (Exhibit 1) attached to which is a survey plan. Also tendered is a handwritten Sales Agreement dated 9/1/2009 between Umar Yahaya of Nuruddeen & Co Nig Ltd

stated to be on the instruction of “Usman Mairiga of Zazzau Emirate Council, Zaria”, selling on his behalf the land in dispute for the sum of N6.5 Million (Exhibit 2).

Further tendered by the Appellant is a “Site and Services Scheme List/Beneficiaries Propose Planning Permission Through Nuruddeen & Company to KASUPDA via Approved Layout” and signed by the said Consultant (Exhibit 3). Appearing as No. 1 among 50 people on the list, under Batch 1 is the name of “Usman Mai-Riga (Zazzau Emirate Council” as being allocated Plot No. 1 on Korau Road.

Further tendered by the Appellant is Exhibit 4, a letter dated 23/11/12 from the Consultant to “Usman Mairiga c/o Engr. Adamu Musa Adamu of Gaskiya Layout Zaria” stating that the recent land dispute regarding Plot No. 1 Korau Road, Kaduna is resolved in his favour. He should thus revalidate his documents by submission of copies of purchase agreement, allocation letter and sketch plan, formal application for clearance, payment of road construction fee of N138,000.00 and administrative charge of N120,000.00, after which payments he can proceed to take

possession.

Also tendered is Exhibit 5, a letter from the Consultant to the General Manager Kaduna State Urban Planning & Development Authority dated 23/9/2010 forwarding the application of Usman Mairiga, the allottee of No. Korau Road for the issuance of planning permission on the said plot, he having satisfied all necessary requirements. Exhibits 6 is a receipt for the sum of N120,000 paid to the Consultant as Administrative Charge. Exhibit 7 is the bank draft and the receipt issued by the Kaduna State Urban Planning and Development Authority for N20,000.00 dated 8/11/2010 as processing fee for planning permission.

Again tendered is Exhibit 8, a letter from the Consultant to the Zazzau Emirate Council, dated 17/6/14, which, for its importance, is set out below:

EXHIBIT 8
NCN NURUDDEEN & CO. NIG. LIMITED
Architects, Planners, Property Developers & Estate Consultants
Head office: Suit 410, 4th Floor NIDB Building, Mohammadu Buhari Way,
PO Box 9542, Kaduna – Nigeria. Tel: 062-216541, 08080965104,
Zonal Office: Victory Plaza, Suit D7 3rd Floor, Plot No 7, Onitsha Cresent
Off Gimbiya Street Area 11 Abuja-Nigeria.

NCN/CRV/SB/LAN/NITR/2014
17th June, 2014
Zazzau Emirate Council
Office of the Principal Priate Secretary
To the Emir of Zazzau
Kaduna.
RE-CONVEYANCE OF LAND ALLOCATION BY THE GOVERNING BOARD NITR LAND
KADUNA, KADUNA STATE
CLARIFICATION
We write to inform the Emirate Council that attached copies of Allocation is not in our list as Beneficiaries regarding Plot No. 1 Korau Road in the approved list is one Usman Mairiga C/O Emirate Council and is now deceased.
We also like to inform the Emirate Council that due to some dispute with NITR Management and Nurudeen & Company (The Consultant) most of Allocation were reviewed. The Offer of Allocation bearing (His Royal Highness) and another one bearing (Aminu Shehu Idris) which does not have Plot Numbers is not the Reviewed List which was confirm (sic) by the Presidential Implementation Committee see attach copies.
In view of this Fact and Our Findings a procedure was Design (sic) through a letter (Format) copied to the General Manager KASUPDA, Ministry of Justice and DG/CEO of NITR that all those that have land must obtain a clearing

Letter before taking Possession see Attach Copies. DG/CEO of NITR confirmed before a Court that the Consultancy Agreement as since Expired see copy.
Yours faithfully,
For: NURUDDEEN & CO NIG LTD
SIGNED
MOHAMMED NURUDDEEN MOHAMMED
Chief Executive
Above for your information and further necessary action, please.
Cc:
The Commissioner of Police
Kaduna State Headquarters
Nigeria Police,
Kaduna.
For: NURUDDEEN & CO NIG LTD
SIGNED
MOHAMMED NURUDDEEN MOHAMMED
Chief Executive

Exhibit D1, tendered by DW2, Abdullahi Yahaya, a civil servant with KASUPDA, is a letter to the Zazzau Emirate Council dated 10/4/13 from the Acting Director Development Control on behalf of the General Manager and copied to the Consultant, informing them that “based on the list given to us by the NITR Governing Board and the Consultant (Nuruddeen & Co. Nig Ltd) Plot No.1 Korau Road was allocated to Usman Mairiga Zazzu Emirate Council who has already obtain (sic) planning permission for fencing (photocopy of approval attached…”

The lower Court, in the determination of the sole issue adopted as

to which of the parties is entitled to the grant of the respective reliefs, further to stating the position of the law, set out the following as the undisputed facts between the parties, holding as follows:
“From the state of the evidence led, the following facts appear not to be in dispute by the parties:-
1. That the property in dispute originally belonged to the Federal Government of Nigeria and was held onto by the Nigeria Institute for Trypanasomiasis Research (NITR).
2. That NITR had commissioned the Company of Nurudeen and Company Nig. Ltd (Consultant) to carry out site and service schemes on the property held by NITR including the disputed property leading to the allocation of same to individuals.
3. That the consultant was so engaged by the NITR through a consultancy agreement admitted as Exhibit ‘K’ dated 11/9/2006.
4. That the consultant allocated the disputed property to the Plaintiff’s predecessor in title His Royal Highness, Dr. Shehu Idris vide a letter of conveyance dated 11/10/2006 which is Exhibit ‘D’.
5. That same consultant allocated same disputed property to the

Defendant’s predecessor in title. One Usman Mairiga vide a letter of conveyance dated 13/7/2007, admitted as Exhibit ‘1’ (one).
6. That the Plaintiff bought the disputed property from his predecessor in title – His Royal Highness – Dr. Shehu Idris as evidenced by Sale Agreement admitted as Exhibit ‘H’.
7. That the Defendant bought the disputed property from his predecessor in title – Usman Mairiga as evidenced by Sale Agreement admitted as Exhibit ‘2”.
8. That more importantly, both the Plaintiff’s and Defendant’s predecessor in title traced their root of title to a common vendor Nurudeen and Company Nig. Ltd (the Consultant to NITR).
9. That both the Plaintiff and the Defendant are relying on one of the ways of proving title to the disputed property which is by way of production off documents of title.”

It thence compared the evidence of the parties and the documents tendered, observing as follows, at Page 264-265 of the Record:
“The Plaintiff pleaded the facts in relation to allegation of collusion in paragraphs 3 (a – h) and 4 (i – iv) of his reply

to the Defendant’s statement of defence dated 22/03/2016 and equally gave evidence of that in his further statement on oath sworn to on 22/03/2016 in paragraphs 4, 5 and 6(a – o) with a view of discharging the burden of proof required under Section 135(1) of the Evidence Act 2011. Apart from the oral evidence of the Plaintiff in support of the allegation of collusion, Exhibits 9, 10 and 11 which were tendered through the defendant by counsel to the Plaintiff under cross examination point to that fact.
In his evidence, the Defendant by Exhibit 1 (one) being letter of conveyance in favour of Usman Mairiga maintained that he bought the disputed property from the said Usman Mairiga through the agent of Usman Mairiga as reflected in Exhibit 2 being the sale agreement dated 09/01/2009. The Defendant maintained that it was the said consultant – Nurudeen and Co. Nig. Ltd that allocated the disputed property to Usman Mairiga who is his predecessor in title. Under cross examination, The Defendant admitted that when the matter was reported to the police in Kaduna, the document of title in relation to the disputed property he submitted showed that the

disputed property was allocated to one Shehu Idris and not Usman Mairiga as claimed. Further, that he bought the disputed property from the agent of Shehu Idris as evidenced by letter of agreement made on 18/11/2009. This letter of agreement, together with the letter of conveyance of title in favour of Dr. Shehu Idris and the sketch plan were admitted as Exhibits 9, 10 and 11 respectively through the defendant and DW1 under cross examination.
Taking a careful look at the documents tendered and admitted in this case, it will indicate that Nurudeen & Co. Nig. Ltd fully aware that he had allocated the disputed property to His Royal Highness – Dr. Shehu Idris as in Exhibit 10 on 18/11/2006 and later yet another conveyance in the name of Usman Mairiga as in Exhibit 1(one) on 13/7/2007. Of note is that Exhibit 10 being letter of conveyance of title submitted to the police by the defendant indicates that the allottee is Dr. Shehu Idris. This is without doubt evidence of collusion between the Defendant and the consultant to which this Court will not allow itself to be used as an engine of fraud in whatever form or guise. See the case of GBADAMOSI VS AKINLOYE

(2013) 15 NWLR (PT.1378) 455 at 478 paragraph H. The legal implication of the attempt of the defendant to use two different title documents to claim same piece of land as in the disputed property is that the Court should not accord any weight to the two set of title documents i.e. Exhibit 1(one) dated 13/03/2007 and Exhibit 10 dated 18/11/2006″ Underline Mine

The Court also referred to the correspondence between the Police and the Emirate Council, where the Council denied knowledge of Usman Mairiga and noted the denial by the Appellant of having any contact with Mairiga, concluding:
“The implication of the above is that there is/was no real person with the name Usman Mairiga but the Defendant and Nurudeen & Co colluded to use the name Usman Mairiga who is non-existent to reflect same on Exhibit 1 (one) with a view to divesting the Plaintiff of his title in the disputed property.”

The Appellant’s Counsel has however objected to these findings, arguing that the trial Judge should have called the Police and the Consultant to give evidence in relation to those documents before passing judgment on them, as a criminal

allegation of collusion should have been proved under Section 138 (1) and (2) of the Evidence Act 2011.

He also pointed out that the allocation to the HRH Dr. Shehu Idris, relied upon by the Respondent was declared not genuine by the Consultant in their letter Exhibit 8.

It is however impossible for this Court not to align itself with the reasoning of the lower Court. The Appellant throughout his pleadings gave out the name of his predecessor in title as Usman Mairiga and tendered documents of title to this effect. Documents tendered under cross examination through him and with no objection from his Counsel, however showed that he presented to the Police as his document of title, a conveyance issued by the same Consultant to “Dr. Shehu Idris” (Exhibit 10), together with an agreement of sale of the land in dispute to the Appellant by one I. Ahmed on behalf of “Shehu Idris” , dated 8/1/09 (Exhibit 9).

The disclaimer in Exhibit 8 by the Consultant, of the Respondent’s title in favour of that of Usman Mairiga, who investigations from the Police reveal has no connections with the Emirate Council, tends to the suspicion

that Usman Mairiga is a phantom figure created by the Consultant as an engine to defraud the NITR and other deserving allottees. The Appellant, it is unfortunate, fell into this scam and in the process sadly expended a fair amount of money.

It is, however not the law that a party must call a particular witness, such as the Consultant, if he can prove his case otherwise. See Musa v. Yerima (1997) 7 NWLR Part 511 Page 27 at 50 Para E, per Ogundare JSC.
It was thus not necessary, I hold, for the Respondent to have called the Police or the Consultant, proof having been given by the documents tendered and admitted by the Appellant, without objection by his Counsel. Had there been any explanation to be given by the Appellant to resolve this conflict in documents, his Counsel should have sought to do this under

re-examination, pursuant to Section 215 of the Evidence Act Supra, which he did not do.

Section 215 (3) of the Evidence Act Supra provides:
“The re-examination shall be directed to the explanation of matters referred in cross-examination and if a new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.”

The sole question, however put to this witness under re-examination, elicited the response:
“There is nowhere in Exhibit D that site plan is attached”

Exhibit “D” is the letter of allocation to the Respondent’s predecessor in title. There was thus no re-examination to explain the conflict in his root of title.

For the reasons given by the lower Court, it is clear that the title of the Respondent is a better title than that of the Appellant and that even if the Appellant’s Vendor is found to be existing and genuine, the Respondent’s title, being first in time and from the same grantor, prevails over that of the Appellant. See Orianzi v. A.G Rivers State (2017) 6 NWLR Part 1561 Page 224 at 248 Para E-G

per Augie JSC; Ilona v. Idakwo (2003) 11 NWLR Part 830 Page 53 at 91 Para C-G per Iguh JSC; Dantsoho v. Mohammed (2003) 6 NWLR Part 817 Page 457 at 487 Para B-F per Katina-Alu JSC (as he then was).

I can only thus resolve the 2nd issue for determination, again, against the Appellant and hold that the trial Court was right, having regard to the evidence led by the parties, to have granted the reliefs sought by the Respondent.

The Appellant has complained about the dismissal of the counter claim by the lower Court, without a consideration of the same. It is however clear that the lower Court, in the course of its judgment, considered the claim of the Appellant but preferred that of the Respondent and dismissed the Counter Claim.

Thus, though it did not state formally that it was considering the counter claim, it certainly did. It also stands to reason that if the Respondent’s claim is granted, the Appellant’s case must of necessity fail.

For all the reasons given above, I find no merit in this appeal and dismiss it. The judgment of the lower Court is accordingly affirmed. The parties shall bear their respective costs.

HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the judgment just rendered by my learned brother Oludotun Adebola Adefope-Okojie JCA. I agree with reasons therein and the conclusion arrived thereat that the appeal is lacking in merit and should be dismissed. For the same reasons, I dismiss the appeal and subscribe to the consequential orders made in the judgment.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment by my lord Oludotun Adebola Adefope-Okojie JCA, and I agree with my lord’s reasoning and conclusions in the said judgment. Consequently, I agree that the appeal has no merit. I dismiss it. The judgment of the lower Court is affirmed.

Appearances:

MALIK ABDULAZEEZ, ESQ., with him, NURADEEN AYUBA, ESQ. For Appellant(s)

O. HABEEB, ESQ., with him, I. AJIBOLA, ESQ. and M. SANI ESQ. For Respondent(s)