HON. PETER I. A. PERO v. UMAR GARBA ALLASURE
(2019)LCN/12903(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2019
CA/YL/104/2018
RATIO
FUNDAMENTAL RIGHT: BREACH OF FAIR HEARING
“…It is trite that it is the duty of a party that has alleged the breach of his right to fair hearing to prove the allegation from the Record of Proceedings in which the alleged breach occurred. It is not sufficient for a party to merely wave the flag of breach or denial of fair hearing in the conduct of proceedings of a Court without going further to show the manner in which the breach or denial occurred from the Record of Proceedings of the Court, since the breach would normally occur in the procedure adopted in the conduct of the proceedings. See: EJEKA VS. STATE (2003) 6 SCM,1; MAIKYO VS. ITODO (2007) 5 MJSC, 60; GBADAMOSI VS. DAIRO (2007) 1 SCNJ 444; MAGAJI VS. NIGERIA ARMY (2008) 8 NWLR (1089) 338, ORUGBO VS. UNA (2002) 16 NWLR (792) 175; INAKOJU VS. ADELEKE (2007) 4 NWLR (1025) 423, FBN, PLC VS. ISA IND. (2010) 15 NWLR (1216) 259 and NGADI VS FRN (2018) LPELR 43636 (CA) P. 11, paragraphs A E. It is the law that a party that alleges denial of fair hearing must demonstrate and prove specific acts of such denial”PER CHIDI NWAOMA UWA, J.C.A.
LAND LAW: PROOF OF LAND
“The law is trite that when the land in dispute is known to the parties, the issue of location and boundary ceases to be an issue to be resolved by the Court, it no longer arises. In the case of OSUOGWUGWU V. EMERUWA (2006) LPELR -11932 (CA) PP. 17-18, PARAGRAPHS F-A his Lordship, Omage, JCA held thus: It is the law that if the area of land in dispute is known to both parties in dispute the issue of proof goes to no issue OSHO V. APE (1998) 60 LRC 4077 at page 4101 (ii) ODOFIN V. ONI (2001) 3 LRCN 384 P. 398”PER CHIDI NWAOMA UWA, J.C.A.
LAND LAW: WHETHER THE PARTY NEED TO PROVE TITLE OF A THIRD PARTY
“The law is that where a party has satisfied the Court as to his title to land in dispute, the Court need not inquire into the title of his predecessor in title. The party does not need to prove the title of his vendors except where it has become an issue. AJIBULU VS. AJAYI (2004) 11 NWLR PT. 885 Page 458; DOSUNMU VS. JOTO (1987) 4 NWLR Pt. 65 Page 297.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICE
CHIDI NWAOMA UWAJustice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYEROJustice of The Court of Appeal of Nigeria
Between
HON. PETER I. A. PEROAppellant(s)
AND
UMAR GARBA ALLASURERespondent(s)
CHIDI NWAOMA UWA, J.C.A.(Delivering the Leading Judgment):
The appeal is against the judgment of the High Court of Taraba State, delivered on the 25th day of June, 2018, presided over by J. F. Agya, J.
The Appellant as the Plaintiff at the lower Court instituted an action against the Respondent as the Defendant seeking a declaration of title over a parcel of land. The Appellant claimed as follows:
WHEREOF, the Plaintiff claims for the following reliefs:
a) A DECLARATION of title of all that parcel of land lying and situate along Jalingo Sukani Road, A. T. C, Kofai Ward bounded thus:
North: An Access Road.
South: Land sold to Pacy inter-global concept Ltd Block industry by Alh. Junaidu Abdullahi Lau.
East: An Access Road, after it, Pacy Inter-Global Concept Ltd Block Industry.
West: Alh. Junaidu Abdullahi Laus Land
b)A DECLARATION by this Honourable Court that the action of the defendant amounted to trespass Ab-Initio;
c) AN ORDER of this Honourable Court evicting the Defendant and his privies from the land in dispute;
d) AN ORDER of this Honourable Court for Perpetual Injunction restraining the Defendant, his Heirs, Privies and Assigns from further acts of trespass on the land in dispute.
e) The Sum Five Million Naira (N5,000,000.00) only as General Damages for trepass.
f) The cost of filing and prosecuting this suit.
The Appellant as Plaintiff called three witnesses and tendered two documents as Exhibits, while the Respondent testified, called one witness and tendered four Exhibits. At the close of the trial, the learned trial judge dismissed the Appellants claim, thus this appeal.
The background facts as given by the Appellant are that the Appellant purchased a parcel of land measuring 1.82 hectares lying and situate opposite College of Agriculture, ATC, Kofai, Ardo Kola Local Government Area of Taraba State through his late father Baba Ishaya Ambairi Pero.
The land was said to have been initially purchased from Honourable Dominic Bukuni in 1995. The Appellants father farmed on the said land until 1999 when one Alhaji Abubakar S. Umar (deceased) challenged the Appellants father who was then in possession by instituting an action against him in Court over the said land.
The Appellant later found out that Dominic Bukuni, his vendor, did not have title over the land in dispute, he approached Alhaji Abubakar S. Umar and indicated his interest to repurchase the land from him, same was sold to him. The Appellant made out that the disputed land was sold by Alhaji Abubakar S. Umar to the Appellant through his father Ishaya Pero while the Appellant was working in Lagos. The land was said to have been sold for the sum of N220,000.00 (Two Hundred and Twenty Thousand Naira) and that the vendor acknowledged the receipt of the said amount evidenced in a document.
The Appellants father was said to have continued farming on the land until his demise in 2005, after which the Appellants elder brother, Jimmy J. A. Pero took possession of the land and continued farming on it until 2014 when the Respondent trespassed into the land giving rise to the action that led to this appeal.
For the determination of the appeal, the Appellant distilled two (2) issues as follows:
1.Whether the failure by the learned trial judge to consider and pronounce on the issues validly raised by the Appellant as well as Exhibit
A amounts to a denial of fair hearing? (Distilled from ground 1 of the grounds of appeal)
2. Whether having regard to the pleadings and evidence on record, the judgment of the trial Court dismissing the case of the Appellant is perverse and liable to be set aside? (Distilled from ground 1 of the grounds of appeal)
The Respondent on her part also distilled two (2) issues for determination thus:
ISSUE ONE (1):
Whether the learned trial judge failed to consider and pronounce on the issue(s) validly raised by the Appellant that amounts to denial of fair hearing. (Distilled from ground one (1) of the ground of appeal).
ISSUE TWO (2):
Whether from the pleadings, evidence and exhibits tendered, the trial Court was right in dismissing the Appellants case. (Distilled from grounds 2, 3 and 4 of the grounds of appeal).
In arguing the appeal, the Learned Counsel to the Appellant Martin Milkman Esq. relied on his Brief of Argument filed on 12/11/2018 in urging us to allow the appeal. In arguing his issue one, it was submitted that a Court of law is bound to consider and make pronouncement on all issues validly raised by the parties, failure would amount to lack of fair hearing. See: UNION BANK OF NIGERIA LTD and ANOR VS. NWAOKOLO (1995) LPELR 3385 (SC) page 29, paragraphs B D, MAITO & ORS VS. OGUNBODEDE (2013) LPELR (CA) 20892, pages, 23 24, paragraphs CF. It was submitted that a breach of fair hearing renders the proceedings and the judgment a nullity. Reference was made to the provisions of Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), hereafter referred to as the Constitution. It was argued that all questions put forward to the Court ought to be answered, reference was made to paragraphs 12, 13 and 14 of the amendment statement of claim, pages 123 and 124 of the printed Records of Appeal, also, Exhibit A or written acknowledgement of receipt of the sum of N220,000.00 (Two and Twenty Hundred Thousand Naira) which was said to have been tendered and admitted in evidence without any objection, page 42 of the records. It was submitted that Exhibit A ought to have been given its ordinary interpretation. It was concluded that a perusal of paragraph 3 of the Amended Statement of Claim, page 122 of the records and paragraphs 23 and 24 at page 125 of the records clearly indicates that the land described in Exhibit A is the same as the land described in the said paragraphs.
In arguing his issue two, it was submitted that the identity and location of the disputed land is known to the parties and clearly stated in paragraph 3 of the amended statement of claim. Further, that in paragraphs 3, 4 and 5 of the Amended Statement of Defence, pages 257 to 258 of the records, the Respondent equally demonstrated the fact that it is the same land as stated in paragraph 3.
It was submitted that once the disputed land is known to the parties, the issue of boundary does not arise. See: OGBOGWU VS. AIGBO (2013) LPELR 21196 (CA) 34, paragraphs B F. It was contended that the trial Court erred in law in dismissing the Appellants case on the basis that the boundary and identity of the land were not established. It was argued that the alleged contradictions in the case of the Appellant as to who between the Appellant and his father purchased the land in dispute did not arise as it was not in dispute. In respect of Exhibit A it was submitted that the contents cannot be varied by oral evidence, without conceding that there were contradictions in the evidence of the Appellant, it was argued that as to who between the Appellant and his father bought the land would not affect the Appellants case in respect of the subject matter. See: YAKUBU VS. JAUROYEL & ORS (2014) LPELR 22732 (SC) pages 6263, paragraphs FF. It was argued that the Appellant or the Appellants family acquired the land in dispute. It was also submitted that the trial Court was wrong to have held that even if the Appellant had proved the purchase of the said land from Alhaji Abubakar S. Umar, he must still go further to prove the title of the said Abubakar S. Umar and his power to sell is unfounded and erroneous in law.
It was argued that from the pleadings and evidence of the parties, both parties agreed and traced their root of title to the same Abubakar S. Umar. It was concluded that where both parties trace their root of title to the same person, for either side to succeed, he must trace his root of title to his vendor, not to prove the title of his vendor, as erroneously held by the trial Court. See: ADEBO VS. SAKI ESTATES LTD (1999) 7 NWLR (PT 612) page 525. Further, that the Appellant would only be required to prove his vendors title where the vendors title is in issue. See: AMUKAN VS. AMUKAN (2008) 2 SCNJ 62. It was submitted that since the title of Abubakar S. Umar was not in issue, the Appellant had no burden placed on him by law to discharge concerning the title of the vendor.
On the part of the Respondent, in response, the Learned Counsel to the Respondent B. Vaatsav Esq. holding the brief of M. G. Josiah Esq. relied on his brief of Argument filed on 18/12/2018 in urging us to dismiss the appeal. The Learned Counsel conceded that a Court of law is bound to consider and make pronouncement on all issues validly raised by the parties and failure to do so would amount to denial of fair hearing. Learned Counsel submitted that it is trite that the test is whether from the impression of a reasonable person who was at the trial, from his observation would say that justice has been done, See: CHUKWUMA VS. FRN (2011) 13 NWLR (PT 1264) P.391 (SC).<br< p=””>
It was argued that it is not enough for a party to merely allege that there was a breach of fair hearing in course of proceedings. See: UDOH VS. CSC AKWA IBOM STATE (2014) ALL FWRL (PT 7116) P. 852 at P. 603 Paragraphs B D. It was submitted that the appellant raised a sole issue for determination while the trial Court adopted the issue distilled by the Respondent, which was similar to the appellants sole issue, which the Courts have authority to do in a bid to better appreciate and address the issues raised by the parties. See:ADEDEJI VS. OBAJIMI (2018) 7 (part 2) SCM page 1 at page 23, Paragraphs, A B. It was submitted that the Appellants paragraphs 12, 13 and 14 of his Amended statement of claim were ably considered and pronounced upon by the learned trial judge, as well as Exhibit A and the Court did not breach the appellants right to fair hearing.
Further, that the Respondent in paragraph 13 of his Amended Statement of Defence denied the fact that Alh. Abubkar S. Umar acknowledged the receipt of payment from the appellants father, also that the DW1 testified that his father Alhaji S. Umar did not acknowledge payment from the plaintiffs father when confronted with Exhibit A.
It was concluded that admissibility comes before probative value to be attached to document and that Exhibit A could be admitted in evidence without any probative value attached to it and that the trial Court was right to have held that Alhaji S. Umar received payment from the Appellants father contrary to the pleadings of the Appellant. See: OMEGA BANK (NIG) PLC VS. O. B. C LTD (2005) 8 NWLR (PT. 928) P. 547 and G. CAPPA LTD VS. D. T. N LTD (2014) ALL NWLR (PT. 740) P. 1254 at 1278 paras. B.
On the Respondents issue two, it was submitted that in an action for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the defence, except where the case of the defence supports his case. It was submitted that the standard of proof required of the plaintiff is on a preponderance of evidence and where the evidence adduced by him is contradictory he would have failed to discharged the onus of proof on him. See: YAKUBU VS. JAUROYEL & ORS (2014) 8 SCM P. 215 at PP. 255, paras. H I. It was also argued that where a declaration of title is sought based on a purchase, such a plaintiff must go further to prove the origin of the title of the vendor as mere production of purchase receipt would not be sufficient. See: BENEDICT OTANMA VS. KINGDOM YOUBUBAGBA (2006) 136 LRCN 312 P. 89, paras A B and UKAEGBU VS. NWOLOLO (2009) VOL. 169 LRCN at PAGE 233 RATIO. 1. It was submitted that from the pleadings and evidence of the parties, the identity of the land was in issue. It was the contention of the Learned Counsel to the Respondent that the Appellant had the onus of proving the identity, size and location by evidence. See: BULET VS. OLANIYI (2017) 12 SCM, 314 and AREMU VS. ADETORO (2007) 11 MJSC 159 at 104, paras. G D.
It was argued that there were material contradictions as to the boundary men and features pleaded by the Appellant in paragraph 24 of his Amended Statement of Claim, reference was made to the evidence of the PW1 at page 43, lines 16 19 of the printed Records of Appeal. It was also argued that there were material contradictions that touch on the substance of the case as to who between the plaintiff and his father purchased the land. The evidence of the PW2 and PW3 was reviewed to the effect that it was contradictory as to who between the Appellant and his father, pleaded with Alhaji Abubakar S. Umar to sell the land to him. It was concluded that the ordinary interpretation of Exhibit A is that it was Ishaya Ambairi Pero and not Hon. Peter I. A. Pero (the Appellant) that paid for the land.
I have examined the issues raised by the parties, they are similar but differently worded. I would determine the appeal based on the issues as distilled by the Appellant. It is trite that it is the duty of a party that has alleged the breach of his right to fair hearing to prove the allegation from the Record of Proceedings in which the alleged breach occurred. It is not sufficient for a party to merely wave the flag of breach or denial of fair hearing in the conduct of proceedings of a Court without going further to show the manner in which the breach or denial occurred from the Record of Proceedings of the Court, since the breach would normally occur in the procedure adopted in the conduct of the proceedings. See: EJEKA VS. STATE (2003) 6 SCM,1; MAIKYO VS. ITODO (2007) 5 MJSC, 60; GBADAMOSI VS. DAIRO (2007) 1 SCNJ 444; MAGAJI VS. NIGERIA ARMY (2008) 8 NWLR (1089) 338, ORUGBO VS. UNA (2002) 16 NWLR (792) 175; INAKOJU VS. ADELEKE (2007) 4 NWLR (1025) 423, FBN, PLC VS. ISA IND. (2010) 15 NWLR (1216) 259 and NGADI VS FRN (2018) LPELR 43636 (CA) P. 11, paragraphs A E. It is the law that a party that alleges denial of fair hearing must demonstrate and prove specific acts of such denial. See: IFEANYICHUKWU EJEKA VS. THE STATE (2003) 7 NWLR (PT 819) page 408 at 421, Paragraphs C E. In the present case, the Appellant alleged that the trial Court failed to pronounce on the issues validly raised by the Appellant as well as Exhibit A, which breached his right to fair hearing.
The Appellant as plaintiff at the trial Court raised a sole issue for the determination of his case thus:
Whether from the facts and circumstances of the case, as gleaned from the pleadings settled by the parties, the plaintiff is not entitled to the declaration sought.
There is nothing on record to show that the learned trial judge did not consider the pleadings and evidence adduced by the Appellant at the trial Court before arriving at his decision. The Appellant has also not shown the aspect of his sole issue that was not addressed by the trial Court. At page 367 of the printed Record of Appeal the lower Court after examining the issues as formulated by the parties held thus:
I have before now reproduced the issues submitted by both parties for determination. The issues are similar. I will therefore adopt the issue formulated by the defendant which is:
Whether from the pleadings, evidence and exhibits tendered, the plaintiff has proved his case to entitle him to the reliefs sought.
A mere look at the Respondents issue which was adopted by the lower Court, it is indeed similar to the sole issue formulated by the Appellant for the determination of his case at the trial. The lower Court did not err in adopting the Respondents issue which was similar to that of the Appellant in determining the case.
In respect of Exhibit A which was alleged not to have been considered by the trial Court, it is clear that the trial Court considered Exhibit A in its analysis of the evidence before the Court at various parts in the judgment, at pages 371, 373 377 of the printed Record of Appeal.
The fact that the analysis did not favour the Appellant does not mean that it was not considered. The fact that the consideration of the Appellants sole issue and the lower Courts analysis of Exhibit A did not go the way of the Appellant did not in itself constitute a denial of fair hearing. A denial of fair hearing connotes a refusal to consider the pertinent and relevant issues in the case essential to its determination. In such a case, a fair minded independent and objective observer would come to the conclusion that the hearing of the case has not been fair to the person affected. The lower Court heard the appellant present his case, the judgment after analysis of the facts and evidence before the Court is left to the Court to decide based on the issues raised, this was what the trial Court did. In my candid view, there was no denial of fair hearing on the part of the lower Court. The Appellant was given full opportunity to present his case at the lower Court and I cannot fault the procedure. See: BAMAIYI VS. STATE & ORS (2001) LPELR 731 (SC) PP 37 38, paras. G B and T. A. O. WILSON & ANOR VS. A. B. OSHIN & ORS (2000) LPELR 3497 (SC) PP. 28 29, paras. F C, (2000) 6 SC (PT 111) P. 1; (2000) 9 NWLR PT. 673 P. 442 (2010) FWLR (PT 14) P. 3311. I hold that the lower Court considered Exhibit A in its judgment contrary to the submission of the Learned Counsel to the Appellant, there was no breach of the appellants right to fair hearing. Issue one is resolved against the appellant.
In respect of the Appellants issue two, in paragraph 3 of the Amended Statement of Claim, the appellant gave the location and extent of the land in dispute thus:
3. The plaintiff avers that he is the bona-fide owner of the piece of land measuring up to 1.82 Hectares lying and situate at opposite College of Agriculture, ATC, Kofai ward along the Jalingo Sunkani Road, Jalingo, within the Jurisdiction of this Honourable Court.
From the above description, the Appellant adequately described the location of the land in dispute and gave the size. In paragraph 3 of the Respondents Amended Statement of Defence the Respondent pleaded thus:
3.In response to paragraphs 3,4,5,6 and 7 the Defendent states that the land form part of an expanse of land deforested by one Alh. Adamu Ladan Kona for over 100 years and above been farming same unchallenged before selling same to one Alh. Abubakar Shekara Umar sometimes in February, 1979.
From the above pleading, the Respondent knew the land in dispute, the person who deforested it and how it got to Alhaji Abubakar Shekara Umar the Appellants vendor.
The law is trite that when the land in dispute is known to the parties, the issue of location and boundary ceases to be an issue to be resolved by the Court, it no longer arises. In the case of OSUOGWUGWU V. EMERUWA (2006) LPELR -11932 (CA) PP. 17-18, PARAGRAPHS F-A his Lordship, Omage, JCA held thus:
It is the law that if the area of land in dispute is known to both parties in dispute the issue of proof goes to no issue OSHO V. APE (1998) 60 LRC 4077 at page 4101 (ii) ODOFIN V. ONI (2001) 3 LRCN 384 P. 398
Similarly, in CHARLIE & ORS V. GUDI & ORS (2006) LPELR-7715 (CA) P. 32, PARAS B-E his Lordship Muhammed, JCA (as he then was) held thus:
It is a claimants burden to establish the identity of the land in dispute of which he seeks from the Court a declaration of title. However, if the identity of the land is from the pleadings of parties, ascertained with clarity the burden to so establish the identity of the very land ceases to be an otherwise necessary burden of the claimant. And this is what happened in the instant case. In that wise the trial Court is right to have so held and concluded that the establishment of the identity of the land in dispute was no longer necessary. See: OGUN V. AKINYELU (2004) 18 NWLR (PT. 905) 362 SC and ADELUSOLA VS. AKINDE (2004) 12 NWLR (PT. 887) 295 SC.
See also, KUTA & ANOR VS AUDU (2017) LPELR 4317 (CA) PP. 11-12, Paragraphs F-A, DURU & ORS V. DURU & ORS (2017) LPELR -42 490 (CA) PP. 41-42, Paragraphs F-C and IKUMUYILO & ANOR V. AKINJAGUNLA (2018) LPELR-44 334 (CA) PP 38-39 paras C-B.
In the present case, the Appellant knows the land in dispute and the extent of what he claims to have bought from Alhaji Abubakar S. Usman contrary to the view of the lower Court that the Appellant did not know the boundaries of the land. The Respondent also knows that it is the same land that both parties described in their pleadings and evidence before the Court, what is in issue is title to the land in dispute.
As rightly argued by the Learned Counsel to the Appellant; the issue of whether it was the Appellant or his father that bought the land in dispute did not arise. The Respondent agreed that the land belonged to Alhaji Abubakar S. Usman who later sold same. Whether he sold the land to the Appellant or his father is immaterial and not an issue before the Court. The learned trial Judge was wrong to have held that the evidence of the Pw2 and Pw3 is conflicting as to who between the Appellant and his father purchased the land in dispute from the vendor and therefore rejected the evidence, pages 376-377 of the records. The view of the trial Court would be in order if there was a dispute between the Appellant and his father as to who purchased the land in dispute from the vendor.
The Respondent is also aware of how the vendor derived his title when in paragraphs 4 and 5 of his Amended Statement of Defence he pleaded thus:
4. The Defendant further states that Alh. Abubakar Shekara Umar was put in possession in the presence of witnesses such as Mallam Yakubu Ladan, Habiba Ladan and Mallam Hassan who are all dead now.
5. In further response to the averment as contained in paragraphs 3, 4, 5 and 7 of the Plaintiffs Statement of Claim, the Defendant states that Alh. Abubakar Shekara Umar continued to exercise acts of possession by farming same unchallenged until in the year 1991 when Yakubu Yensam challenged his title hence he filed a case against him at the Area Court II Jalingo for declaration of title, consequently upon which the Area Court II Jalingo declared title in his favour. The writ of possession in respect of the land written in Hausa is titled TAKARDA IZNIN MALAKA: was issued to Alhaji Abubakar Shekara Umar on the 17-9-1991. Both Hausa and English translated versions are hereby pleaded.
The vendors root of title is not in doubt or in dispute and it was clearly pleaded by the Respondent. The Appellant was able to trace his root of title to the vendor through purchase. On the other hand, the Respondent who also traced his root of title to the Appellants vendor was unable to prove same. I agree with the submission of the Learned Counsel to the Appellant that the lower Court was wrong to have held at page 377 of the Record of Appeal, that even if the Appellant had proved that he purchased the land in dispute from Alh. Abubakar S. Umar, that the Appellant still had the burden to prove the title of his vendor, and that the vendor had a right to seek for title to pass to him. The Respondent acknowledged the fact that the Appellants vendor had title to the land in dispute and was put in possession through sale by Alhaji Adamu Ladan Kona who deforested the land in dispute, in the presence of Mallam Yakubu Ladan, Habiba Ladan and Mallam Hassan. The Appellants vendor had the right to sell, which he did via Exhibit A which is clear and unambiguous. There was no burden to discharge on the part of the Appellant, that his vendor had title and the right to sell the land in dispute. Alhaji Abubakar S. Umars title was not in doubt and was not in issue.
In AKANIYENE & ORS VS. ETIM (2012) LPELR – 9792 (CA) P. 20, paras B-D, his lordship Ndukwe-Anyawu, JCA, stated the position of the law thus:
The law is that wherea party has satisfied the Court as to his title to land in dispute, the Court need not inquire into the title of his predecessor in title. The party does not need to prove the title of his vendors except where it has become an issue. AJIBULU VS. AJAYI (2004) 11 NWLR PT. 885 Page 458; DOSUNMU VS. JOTO (1987) 4 NWLR Pt. 65 Page 297.
See also AIYEOLA V. PEDRO (2014) LPELR -22915 (SC) PP 36-37, Paragraphs G-A. The trial Court was wrong to have dismissed the Appellants case. I resolve the Appellants issue two in his favour.
In the final analysis, I allow the appeal in part. In view of the resolution of the appellants issue two in his favour, the Judgment of the trial Court is hereby set aside. I grant the reliefs sought in the Amended Statement of Claim thus:
a. It is hereby declared that the Appellant is entitled to all the parcel of land in dispute lying and situate along Jalingo – Sunkani Road, ATC, Kofai Ward bounded thus:
North: An Access Road.
South: Land sold to Pacy Inter-global Limited block Industry by Alh. Junaidu Abdullahi Lau.
East: An Access Road, after it, Pacy Inter-global concept Ltd Block Industry.
West: Alh. Junaidu Abdullahi Laus land.
b. It is declared that the action of the Defendant amounted to trespass ab-initio,
c. It is ordered that the Respondent and his privies are to vacate the land in dispute forthwith.
d. Perpetual Injunction is hereby ordered restraining the Respondent; his heirs, privies and assigns from further acts of trespass on the land in dispute
e. The sum of N1, 000, 000. 00 (One Million Naira) is awarded to the Appellant for trespass.
I award costs of N50, 000.00 (Fifty Thousand Naira) to the Appellant.
JAMES SHEHU ABIRIYI, J.C.A.:I read in advance in draft the lead judgment just delivered by my learned brother CHIDI NWAOMA UWA JCA. He has dealt adroitly with the issues for determination. I have nothing more useful to add.
For the reasons contained in the lead judgment, I too allow the appeal in part and set aside the judgment of the Court below. Reliefs (a) (e) are also granted by me. The Appellant is awarded the sum of One Million Naira for trespass to his land.
I abide by all other orders including the order as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in draft the lead Judgment delivered by my learned Brother Uwa JCA. I also allow the Appeal in part. The judgment of the lower Court is set aside. I abide with all the consequential orders.
Appearances:
Martin Milkman, Esq.For Appellant(s)
B. Vaatsav, Esq. holding the brief of M.G. Josiah, Esq.For Respondent(s)
B. Vaatsav, Esq. holding the brief of M.G. Josiah, Esq.For Respondent
