ALHAJI DANASABE ABDULLAHI & ANOR. V. GROUP CAPT. STEPHEN EZRA HEDIMA (2010)

ALHAJI DANASABE ABDULLAHI & ANOR. V. GROUP CAPT. STEPHEN EZRA HEDIMA

(2010)LCN/4217(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of July, 2010

CA/K/132/05

RATIO

IDENTITY OF THE LAND IN DISPUTE: ESSENCE OF THE ISSUE OF THE IDENTITY OF A LAND IN DISPUTE WHERE THERE ARE TWO COMPETING CLAIMS TO THE LAND

In an action for declaration of title to land, especially where there are two competing claims to the land, the issue of the identity of such land is very important because if the identity of the land in dispute is not certain, no order of declaration can be made as the court cannot make an order in vacuum or in vain. See Baruwa V. Ogunshola 4 WACA 159, Nwogo V. Njoku (1990) 3 NWLR (pt 140) 570 at 579 para F-G. PER JOHN INYANG OKORO, J.C.A

IDENTITY OF THE LAND IN DISPUTE: WHETHER IT IS ONLY WHEN THE DEFENDANT IN HIS STATEMENT OF DEFENCE HAS MADE THE ISSUE OF IDENTITY OF THE LAND AN ISSUE THAT IT WILL BE TRIED AND CONSIDERED BY THE COURT

WHETHER A PLAINTIFF CAN LOSE HIS CASE WHERE THE DEFENDANT DOES NOT APPEAR OR CHALLENGE OR CONTRADICT THE EVIDENCE OF THE PLAINTIFF

It should be noted that a Plaintiff may lose his case even where the defendant does not appear or challenge or contradict the evidence of the Plaintiff if such evidence does not support the facts pleaded or where the statement of claim itself is contradictory or defective. See Nwogo V. Njoku (1990) 3 NWLR (pt 140) 570, Omoregie V. Omigie (1990) 2 NWLR (pt 130) 29 at 39. PER JOHN INYANG OKORO, J.C.A

POSITION OF THE LAW WHERE THE GRANTEE OF A CERTIFICATE OF OCCUPANCY CAN NOT PROVE A BETTER TITLE TO THE GRANT

In Olohunde V. Adeyoju, (2000) 10 NWLR (pt 676) 562 at 588 para B – C, the Apex Court held that:- “Where a certificate of occupancy has been granted to one of two claimants who has not proved a better title, it must be deemed to be defective and to have been granted or issued erroneously and against the spirit of the Land Use Act and the holder of such a certificate would have no legal basis for a valid claim over the land in issue. So, too, where it is shown by evidence that another person other than the grantee of a certificate of occupancy had a better right to the grant, the court may have no option but to set aside the grant or otherwise discountenance it as invalid, defective and/or spurious as the case may be. For a certificate of occupancy under the Land Use Act 1978 to be therefore valid, there must not be in existence at the time the certificate was issued, a statutory or customary owner of the land in issue who was not divested of his legal interest to the land prior to the grant”. PER JOHN INYANG OKORO, J.C.A

JUSTICES

MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI DANASABE ABDULLAHI
2. HAJIA ASABE AHMED Appellant(s)

AND

GROUP CAPT. STEPHEN EZRA HEDIMA Respondent(s)

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court presided over by Hon. Justice Umaru Adamu in suit No. KDH/KAD/280/95 delivered on 5th October, 2004 wherein the learned trial judge granted all the reliefs sought by the Respondent as Plaintiff in the court below.
In an amended statement of claim, the Respondent had asked for the following reliefs:-
(1). A declaration that he is entitled to a right of occupancy on and over all that piece of land situate, lying and being at plot TK.53 Baddiko North Extension of about 0.04911 as shown on Kaduna Sheet 45 and covered by a right of occupancy No. NC 23871 issued by the Kaduna State Government.
(2). A perpetual injunction restraining the Defendants by themselves, their servants, agents and or privies or otherwise from committing acts of trespass on plot No. TK.53 Baddiko New Extension Kaduna.
(3). N150,000.00 (One hundred and fifty thousand naira only) being special damages for the Plaintiff’s demolished improvements on the said piece/parcel of land.
(4). N50,000.00 (Fifty thousand Naira only) being general Damages for the Defendants acts of trespass and disturbance of the Plaintiffs peaceful possessions/enjoyment of the said piece/parcel of land.
The 2nd Respondent filed her statement of defence and counter claim seeking a declaration that “the property is TK.51 and not TK.53 Baddiko North Extension, Kaduna” and also for damages. At the conclusion of the case, the trial judge found for the Respondent (plaintiff) and granted all the reliefs sought by him. Dissatisfied with the decision of the learned trial judge, the Appellants have appealed to this court. In an amended Notice of appeal filed on 13/9/05 with the leave of this court, eight grounds of appeal were filed out of which the Appellants have distilled six issues for determination as follows:-
1. Whether the learned trial judge was right when he held that the Respondent was entitled to the land in dispute without first determining whether the identity of the land was plot TK.53 Baddikko New Extension or Plot TK.51 Badikko New Extension.
2. Whether the identity of the land is plot TK.53 Badikko New Extension or Plot TK.51 Badikko New Extension.
3. Whether the Respondent was estopped from bringing the action at the lower court, the Respondent being aware of judgment of court of co-ordinate jurisdiction over the same subject matter.
4. Whether the learned trial judge was right when he held that the Respondent was entitled to the land in dispute when the Respondent failed to show any root of title.
5. Whether the learned trial judge was right when he held that the Respondent was entitled to damages.
6. Whether or not the judgment delivered by the learned trial judge 12 months after the close of addresses occasioned a miscarriage of justice.
The learned counsel for the Respondent however formulated four issues. These issues are:-
1. Whether the learned trial judge given the state of the pleadings and the evidence before him came to the right decision in finding for the Plaintiff at the lower court.
2. Whether the plea of estoppel avails the Appellants, the learned trial judge having ruled on the matter in the course of the proceedings and restated same in the final judgment.
3. Whether given the weight of evidence adduced at the trial relating to the issue of damages the learned trial judge could have come to a different conclusion on awarding damages for the destruction caused by the 1st defendant.
4. Whether the non-compliance with the provision of section 294 of the constitution of the Federal Republic of Nigeria in any way occasioned any miscarriage of justice.
In determining this appeal, the issues as formulated by the Appellants will be adopted, after all it is their own appeal and the issues seem to have comprehensively covered their grudges. I intend to resolve issues 1, 2 and 4 together since they are interwoven and interrelated.
It was the observation and contention of the learned counsel for the Appellants that both in the pleadings and the evidence led, issues were joined by both parties on the identity of the land, however, the learned trial judge while deciding the matter did not make any declaration on the identity of the land. He submitted that where the identity of the land is not certain, no order of declaration can be made relying on the cases of Adeyori V. Adeniran (2001) 10 NWLR (pt 720) 151 at 165 para E – F, 166 para A – B, Nwogo V. Njoku (1990) 3 NWLR (pt 140) 570.
Referring to the evidence of Pw2, Dw1, Dw2 and Exhibits 5, 6, and 10, learned counsel further submitted that there was abundant evidence to show that the Appellants challenged the Respondent’s claim and never admitted to the fact that the Respondent’s claim on the land in dispute is plot TK.53. That the court below ought to have made findings of fact as to whether the land is plot TK.51 or TK.53 Baddiko New Extension or not. He urged the court to resolve this issue in favour of the Appellant.
On issue 2, he submitted that the Plaintiff did not in any way establish the identity of the land, rather his relying on Exhibits 1 and 2 to show that the said land is plot TK.53 was improper as Exhibit 2 has no root of title. Also that Exhibit 2, the certificate of occupancy by itself alone is never associated with title; the Plaintiff must show how he derived the title. He placed reliance on Ololunde V. Adeyejo (2000) 10 NWLR (pt 676) 562 at 588 para B-C, Adeshayi V. Oluwolamba (1996) 12 NCNJ 95 at 96.
On the issue of root of title, he submitted that one Tanimu Zaria whom the Respondent alleged he bought the land from, testified as Dw3 and denied ever selling the land or any land for that matter to the Respondent. He urged this court to hold that the Respondent failed to trace his root of title to any body notwithstanding the issuance of certificate of occupancy in his favour. Relying on the two cases already cited, he urged the court to so hold in favour of the Appellant.
In his reply, the learned counsel for the Respondent submitted that the identity of the land in question was never made an issue by the parties at the lower court. He further submitted that whereas the Appellants call it TK.51, the Respondent refers to it as TK.53 but the same land. That the fact that the Appellants have given the land another name makes no difference citing and relying on the cases of Ogbu V. Wokoma (2005) 14 NWLR (pt 944) 118 at 139 paras A -D and Chukweke V. Okoronkwo (1999) 1 NWLR (pt 587) 410 at 422 para B – C, Korobotei V. Obudu (1999) 9 NWLR (pt 620) 655 at 687 para B – D.
Furthermore, he submitted that had the Appellants made it an issue, it could have been in their statement of defence, relying on the case of Ezeudu V. Obiagwu (1986) 2 NWLR (pt 21) 208 at 209 para H-A. That by virtue of S. 5(2) of the Land Use Act, 1978, upon the grant of a statutory certificate of occupancy under the provision of Section 5(1) of the Act, all existing rights to the use and occupation of the land which is the subject of a statutory right of occupancy are extinguished. Refers to Dantsoho V. Mohammed (2003) 6 NWLR (pt 817) 457 at 485 – 487 para C – C.
It was his further contention that the certificate of occupancy issued by the Kaduna North Local Government was useless in the circumstance. Also that of the five methods of proving title to land, a party is not bound to prove all but proof in one way will suffice. He relies on the cases of Morenikeji V. Adegbosin (2003) 8 NWLR (pt 823) 612 at 661, Orugbon V. Gbondon (1999) 11 NWLR (pt 628) 661 at 668 and Ademolaju Vs Adenipekun (1999) 1 NWLR (pt 587) 440.
In the circumstance, he submitted that the Respondent proved his root of title by producing the document of title. Further more, that the title document of the Respondent is superior to that of the Appellants and he ought to be declared the owner of the land. Because the 2nd Appellant did not personally testify in the case, the learned counsel for the Respondent submitted that her pleading as to the ownership of plot No. TK.51 goes to no issue as her assertions on her pleading remained assertions without evidence in proof thereof. Again, it was counsel’s submission that since the 1st Appellant made contradictory statements concerning his relationship with the 2nd Appellant who resides in Saudi Arabia, this court should hold that the 2nd Appellant is a Ghost and does not exist. And finally, that the 1st Appellant did not show any authority to act for the 2nd Appellant. He urges this court to hold that the lower court was right in affirming the Respondent’s right to the piece/parcel of land known and described as plot TK.53.

The primary duty of a plaintiff claiming a declaration of title to land, trespass and injunction as in the instant appeal is to show quite clearly and establish the area and the boundaries of the land in dispute to which his claim relates as no court will make a declaration of title in respect of an uncertain land. It must be noted that it is only when the defendant in his statement of defence has made the issue of identity of the land an issue that it will be tried and considered by the court. He can do this by disputing either the area, or the size of the location or the features shown on the Plaintiffs’ plan where one is filed. See Ezeudu V. Obiagwu (1986) 2 NWLR (pt 21) 2008.
In the instant appeal, the Appellants have contended that the learned trial judge made declaration on land which is not identified or certain. Whereas the Appellants state that the land of the 2nd Appellant is plot TK.51, the Respondent says his land is plot TK.53. Now the question is, whether TK.51 is the same as TK.53, bearing different names or are they different and distinct pieces or parcels of land?
The learned trial judge in his judgment at page 193 of the records decides that:-
“The plaintiff’s claim is plot TK.53. This is not challenged and is admitted fact. The defendant has no business with TK.53, the defendant claim is TK.51 Baddiko New Extension Kaduna”.
Quite apart from the above decision of the learned trial judge, there is nowhere in the judgment where effort was made to resolve the issue of the identity of the land since both in the pleadings and evidence led, the parties did not agree on whether the two plots TK.51 and TK.53 refer to one plot or different plot. A few examples will suffice. In the amended statement of claim, the Respondent, apart from claiming declaration of title to plot No, TK.53, stated further in paragraph 7 as follows:-
“That on Thursday 20th April, 1995 the Defendants in company of five other people went to property No. TK. 53 Baddiko New Extension Kaduna demolished the fencing and carried away the gate of the said property”.
In his statement of defence, the 2nd Appellant states in paragraph 16 of the statement of defence that-
“The 2nd Defendant avers that she is not the owner of TK.53 Badikko North Extension and never entered same and she does not lay any claim to it”.
Also, in the counter claim she states in the first relief sought as follows:-
“A declaration that the property is TK.51 and not TK.53 Baddiko North Extension, Kaduna”.
Clearly, contrary to the holding of the learned trial judge, the parties in their pleadings have joined issues on the identity of the land in dispute and ought to have been resolved before making any declaration on it. That is as far as the pleadings are concerned. Let me now look at the evidence adduced by the parties on this issue. First the Respondent (Plaintiff). On page 128, of the record, the Respondent as Pw1 told the court thus:-
“The plot was sold to me by Tanimu not Boyi Dogara. I am talking of TK.53 not TK.51 I am not aware that the plot in dispute is TK.51. I did not destroy any development made by the 2nd defendant and she did not develop the land. My plot is TK.53. I object to the court declaring TK.53 as TK.51”
Dw3 who is alleged by the Respondent to have sold the land to him states on page 154 of the record that-
“My plot is TK.53 and not TK.51 and they are not the same”.
Again, the 1st Appellant who testified as Dw5 gave evidence on page 162 of the record that:-
“I know why I was brought to court in respect of piece of land No.51 which the plaintiff entered and it say was No.53. The plot is No. TK.51. The plot is not TK.53. The 2nd defendant is the owner of the plot TK.51.”
He went on to say further:
“Abullahi Garba and Lawal Usman staff of Local Government went and inspected the plot and found it the plot is TK.51 and not TK.53. Mrs Hedima was not satisfied. The Local Government staff told her the plot is TK. 51 not TK.53 and we should continue with the work”.
Apart from the evidence of the parties on the issue of the identity of the land in dispute, the court below on page 151 of the record, admitted two files as Exhibits 5 and 6. Exhibit 5 is a file containing application by the 2nd Appellant for certificate of occupancy in respect of plot No. TK.51 Baddiko North Extension Kaduna while Exhibit 6 is a file containing application by the Respondent for certificate of occupancy in respect of plot TK.53 Baddiko North Extension Kaduna.
I have taken time to look at the pleading and the evidence adduced by the parties to show that the piece or parcel of land in dispute was not clearly resolved by the court below. In view of these pieces of pleading and evidence, it is clear that the declaration made by the learned trial judge had no basis whatsoever. The court below should have made pronouncement as to whether TK.51 and TK.53 refer to one land or separate pieces of land. This was not done. As it stands, the Appellants are holding tenaciously to TK.51 while the Respondent is happy he has been awarded title to TK.53. As it stands there is no evidence to show what or which land is in dispute apart from the letters and figures touted in the court. In this kind of situation the court below ought to have moved to the site to ascertain whether both TK.51 and TK.53 refer to the same parcel of land or not. There is evidence that Local Government staff inspected that land and declared it to be TK.51. This, the court below did not say anything on it.
I need to point out here that the situation in this case is not that whereas the Appellant gives a piece of land one name, the Respondent gives another; in which case it cannot derogate, alter or change the identity of the land in dispute. See Ogbu V. Wokama (2005) 14 NWLR (pt 944) 118 and Chukueke V. Okoronkwo (1999) 1 NWLR (pt 587) 410. In this case it is a question of two parties referring to two plots TK.51 and TK.53. There is much to be done by the trial court to unravel the truth in this matter. Therefore, it is my well considered opinion that the learned trial judge failed to resolve the issue of identity of the land before making his declaration in favour of the Respondent. That declaration, in my opinion, cannot stand because it may cause more confusion and chaos than imagined.
Another issue here is whether the Respondent proved his root of title as it were. Let me say once again that it is not a matter of course or general rule that whenever the evidence tendered by the Plaintiff is unchallenged or uncontroverted that he would be entitled to judgment. The evidence adduced must be relevant to the facts pleaded and the issue joined. It should be noted that a Plaintiff may lose his case even where the defendant does not appear or challenge or contradict the evidence of the Plaintiff if such evidence does not support the facts pleaded or where the statement of claim itself is contradictory or defective. See Nwogo V. Njoku (1990) 3 NWLR (pt 140) 570, Omoregie V. Omigie (1990) 2 NWLR (pt 130) 29 at 39.
In this case, the Respondent gave evidence to the effect that he bought the land sometime in 1986 from one Mallam Tanimu Zaria. He later got a certificate of occupancy to that effect and tendered it as exhibit 2. Thereafter one Mallam Tanimu Zaria gave evidence as Dw3 and claimed to be the owner of plot TK.53 and that same was allocated to him by Musa Yuhana, Sole Administrator of Kaduna Local Government when he Tanimu was clerk in the Local Government Council. He denied ever selling the land to the Respondent. Rather that he sold it to one Mallam Mohammed Boye. He said further:-
-My plot is TK.53 and not TK.51 and they are not the same”
Although the Respondent tendered certificate of occupancy in this case, he failed to trace his root of title as the man he alleged sold the land to him denied the transaction and nothing was done to remedy it. For me, relying on the certificate of occupancy alone, was not sufficient proof of title to the property. In Olohunde V. Adeyoju, (2000) 10 NWLR (pt 676) 562 at 588 para B – C, the Apex Court held that:-
“Where a certificate of occupancy has been granted to one of two claimants who has not proved a better title, it must be deemed to be defective and to have been granted or issued erroneously and against the spirit of the Land Use Act and the holder of such a certificate would have no legal basis for a valid claim over the land in issue. So, too, where it is shown by evidence that another person other than the grantee of a certificate of occupancy had a better right to the grant, the court may have no option but to set aside the grant or otherwise discountenance it as invalid, defective and/or spurious as the case may be. For a certificate of occupancy under the Land Use Act 1978 to be therefore valid, there must not be in existence at the time the certificate was issued, a statutory or customary owner of the land in issue who was not divested of his legal interest to the land prior to the grant”.
As it stands, the tendering of Exhibit 2, the certificate of occupancy by the Respondent did not in my opinion divest him of his duty to prove his root of title especially when the supposed vendor of the land denied such transaction on oath. I hold the view that the Respondent failed to prove his root of title, the issuance on him of a certificate of occupancy notwithstanding. On the status of the certificate of occupancy issued to the Respondent, I shall refrain from making any comment on it as I intend to send this case back for retrial in the High court.
In sum therefore, I resolve issues 1, 2 and 4 in favour of the Appellants.
In respect of issue No. 3 i.e whether the Respondent was estopped from bringing the action at the lower court, the Respondent being aware of judgment of a court of co-ordinate jurisdiction over the same subject matter, I wish to say that this issue cannot be resolved without first resolving the identity of the land. Whereas the suit and judgment in Exhibit 8 relates to TK.51 Baddiko North Extension Kaduna, the present suit relates to TK.53 Baddiko North Extension Kaduna. If I hold that estopel applies, it means I have resolved that the two plots refer to the same land. If on the other hand I hold that estopel does not apply, I invariably have decided that the two plots are distinct and different from each other. As it stands, I do not have such evidence to take such a decision. Therefore, I shall allow the issue to abide the outcome of the retrial which I shall order anon. If the issue comes up again after the retrial, this court will certainly address it.
Having held that the Respondent failed to prove his root of title and that the declaration made in his favour was made over an uncertain piece/parcel of land, the damages awarded the Respondent, cannot be allowed to stand in the circumstance. I accordingly set aside the relief for damages made by the trial court against the Appellants.
The last issue to be considered here is whether or not the judgment delivered by the learned trial judge 12 months after the close of addresses occasioned a miscarriage of justice. The learned counsel for the Appellants submitted that the judgment delivered on 5th October 2004 after addresses had closed on 2nd October 2003 occasioned a miscarriage of justice. He submitted that although delivering judgment outside the 90 days allowed by section 294(1) of the 1999 constitution does not automatically lead to a reversal of the judgment, there are enough reasons to show that the non-compliance has resulted in a miscarriage of justice.
First, he opined that the learned trial judge could not recollect the material facts and issue to be determined, for, whereas the Appellant at the court below clearly raised the issue of identity of the land in dispute the learned trial judge did not determine that issue but held that there was no dispute as to the identity of the land. Secondly, that the learned trial judge merely stated in his judgment that all the witnesses restated the fact as stated in their evidence in brief during cross examination, whereas this does not reflect the true position as can be seen in the cross examination of Pw1 who under cross examination was confronted by Mallam Tanimu Zaria, who he claimed to have purchased the plot TK.53 from and he could not recognize him. Also, under cross examination, counsel was able to elicit the fact that there was no agreement between Mallam Tanimu Zaria and the Respondent. This, he opined shows that the learned trial judge could not recollect the responses.
Furthermore, he submitted that while delivering his judgment, the learned trial judge relied on Exhibit 6 which did not show clearly that Plot TK.53 belongs to the Respondent, the certificate of occupancy contained in Exhibit 6 carried the number 027385 while the certificate of occupancy that was conveyed to the Respondent carries the number KDA/A/003393 which clearly shows that the court below lost trend of the evidence while writing his judgment. All this, he contended occasioned a miscarriage of justice and urged this court to set aside the judgment on this issue.
It was however the contention of the learned counsel for the Respondent that the non-delivery of the judgment of the court strictly in accordance with section 294(1) of the 1999 constitution did not occasion any injustice to the Appellants. That the intendment of section 294(1) of the 1999 constitution is to facilitate speedy dispensation of justice and not meant to be a weapon in the hands of persons who lose cases to overturn valid judgments through this section. He cites and relies on the case of Dahiru V. Kamale (2005) 9 NWLR (pt 929) 8 at 35 para E. Finally, he submitted that the Appellants have not shown in a concrete and fundamental way how the delivery of the judgment outside 90 days occasions a miscarriage of justice. He urged this court to resolve this issue against the Appellants.
Both parties have referred to section 294(1) and (5) of the 1999 constitution in relation to this issue and it is appropriate to reproduce the section here for ease of reference. It states:-
“294(1) Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(5). The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of sub section (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof”.
Clearly, by section 294(1) of the 1999 constitution of the Federal Republic of Nigeria, it is mandatory for the High Court and other courts established by the constitution to deliver its judgment not later that ninety days from the date of the conclusion of evidence and final addresses. However, sub section 5 of section 294 of the 1999 constitution is designed to save some judgments which though delivered outside the 90 days period, have not occasioned any miscarriage of justice. As was rightly observed by this court in Dahiru V. Kamale (2005) 9 NWLR (pt 929) 8, it is not the law that once a delay in the delivery of judgment is established, an appeal will be allowed and an order of retrial made. However, if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial courts’ perception, appreciation and evaluation of the evidence such that it can be easily seen that he has lost the impression made on him by the witnesses, then in such a case there might be some fear of a possible miscarriage of justice and then, but only then will an appellate court interfere. It should be noted that the emphasis is not on the length of time alone but on the effect it has produced in the mind of the trial court. See also Owoyemi V. Adekoya (1998) 8 NWLR (pt 560) 70 at 88. As it is, the burden is on the party complaining to show that he has suffered a miscarriage of justice.
In the instant case, it is very clear that this judgment was delivered more than 12 months after the conclusion of evidence and final addresses. Final address was concluded on 2nd October, 2003 as can be seen on page 180 of the record of proceedings. The judgment of the court was delivered on 5th October, 2004. (see pages 182 – 194 of the record). From the pleadings, the evidence led vis-a-vis the judgment of the court below, it appears to me that the learned trial judge, at the time he delivered the judgment, had lost his impression of the trial having regard to his assessment of the evidence and the witnesses. For instance, the learned trial judge admitted exhibits 4, 5 and 6 which are files containing applications and other documents for the issuance of certificate of occupancy in respect of plots TK.51 and TK.53 but he never resolved the issue as to whether the plots are the same or distinct Exhibits 4 and 6 are in respect of plot TK.53 Baddiko North Extension Kaduna. Exhibit 5 is in respect of Plot TK.51 Baddiko North Extension Kaduna. In his judgment, he held that there is no dispute as to the identity of the plot.
This kind of conclusion emanates from a mind who had lost trend of events in the matter.

Again, the learned trial judge failed to address the evidence elicited from the Respondent on the issue of his root of title when the Dw3 Mallam Tanimu Zaria the supposed vendor to the Respondent clearly denied ever selling the property to the Respondent. Nothing was said about this in the judgment. And yet this is a weighty issue. This is not a matter which the court can ordinarily forget to address. I think after a very long time after hearing and concluding evidence, the learned trial judge could not remember in details the impression and evidence of witnesses before him.
Again, Exhibit 8 is a case file and judgment of the High court of Kaduna State in respect of plot TK. 51 in which judgment was given in favour of the 2nd Respondent against the wife of the present Respondent. The learned trial judge made no effort to determine whether this judgment in Exhibit 8 relating to Plot TK.51 has any bearing on plot TK.53, the subject matter of this appeal. And yet, these are matters or issues which ought to have been resolved at the court below. I am therefore persuaded to hold that the evaluation of the evidence by the learned trial judge bore the mark of forgetfulness and loss of trend of events in the case. 12 months interval between the final address and delivery of judgment has cast a lull on the sense of the court below and I firmly agree with the learned counsel for the Appellants that this has obviously occasioned a miscarriage of justice and in the circumstance, this court ought to intervene in the interest of justice.
I have to sound a note of caution that section 294(5) of the 1999 Constitution of the Federal Republic of Nigeria is not a license for courts to opt out of the provision in sub paragraph one thereof. Section 294(1) is meant to alleviate the anxieties of litigants by ensuring prompt delivery of judgments and within a reasonable time. Sub paragraph 5 should therefore not be used as a weapon against prompt delivery of judgments.
On the whole, having resolved all the issues in favour of the Appellants, I hold that this appeal has merit and is hereby allowed. The judgment of the court below is hereby set aside. I hereby order that suit No. KDH/KAD/280/95 be and is hereby remitted back to the Chief Judge of Kaduna State to be heard de novo by a judge of the High Court other than Justice Umaru Baba Adamu. In view of the age of this case, it should be given an accelerated hearing. Parties are to bear their respective costs.

MOHAMMED LAWAL GARBA (J.C.A): After reading a draft of the lead judgment delivered by my learned brother OKORO, JCA, i am in agreement with the finding that since the High court did not determine the identity of the land in dispute between the Appellants and the Respondent on which issues were joined by them in both pleadings and evidence, its pronouncements on the claims before it have no basis whatsoever. The claims could only be properly determined in respect of an identified plot or parcel of land since the parties had very seriously disputed the identity of the land in respect of which the claims of the Respondent relate.
Without a clear determination of the identity of the land in dispute, the foundation on which to determine any claims thereon would be absent. Before proceeding to consider and determine any claims in respect of a piece or plot of land the High Court had the duty to satisfy itself that the identity of the land in dispute was clearly established with certainity since the parties had joined issues on it. See ODUNZE .V. NWOSU (2007) 13 NWLR (1050) 1, EPI .V. AIGBEDTON (72) 10 SC, 53.
For reasons set out in the lead judgment and the above, I find merit in the appeal and allow it. I adopt the consequential order for re-trial made by my learned brother in the lead judgment.

THERESA NGOLIKA ORJI-ABADUA, (J.C.A.): I agree.

Appearances

Idris Mohammed EsqFor Appellant

AND

Festus Okoye Esq. with Serah Menta EsqFor Respondent