Dudu Addah & Ors V. Hassan Sahi Ubandawaki (2015)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Sokoto Division (‘the court below’ for short) delivered on the 21st day of April, 2011. Therein, the judgment of Gulma, J. delivered against the respondent and in favour of the appellants on the 31st day of January, 2000, at Zuru Division of the Kebbi State High Court of Justice, (trial court) was set aside. As well, the suit of the appellants, as plaintiffs before the trial court, was dismissed in its entirety.

It is apt to state the relevant facts of the matter at this point. The appellants, as plaintiffs before the trial court, filed their writ of summons against the respondent. In their amended Statement of Claim, they claimed on page 12 of the records the following reliefs:-

“1. A declaration that the land in dispute belongs to the fathers of the plaintiffs and they inherited same from his (sic) death from him (sic).

2. A declaration that the defendant’s entry into the land is illegal and constitutes trespass.
3. AN ORDER of permanent injunction directing the defendant to vacate from the said land.
4. AN ORDER of permanent injunction restraining the defendant, his heirs or previes (sic) from further entry into the said land.
5. AN ORDER of permanent injunction restraining the defendant, his heirs or previes (sic) from further claiming the title of the said land.”

The appellants claimed that they inherited the land in dispute from their fathers and that it was Addah who gave the land to the respondent to build his house and for cultivation.

The respondent who was not represented by counsel at the trial court filed a defence of a rather peculiar nature. Therein, he denied that he encroached on the appellants’ land. He claimed ownership of the land in dispute through inheritance from his own father – Kyoti, over 70 years ago.

The learned trial judge garnered evidence from witnesses called on both sides of the divide. After he was addressed by the plaintiffs’ counsel, he gave judgment in their favour and declared as follows:-

“1. That the land in dispute belongs to the fathers of the plaintiffs, who inherited same upon the death of their fathers.

2. That the defendant, his heirs, previes (sic) servants, agents, must vacate the land and must also not encroach upon the said land in future.
3. That paragraph (1) above does include the land given to defendant by the fathers of plaintiffs, which said piece is near the Dam water, at the extreme Western part of the disputed land.
4. That permanent land marks are to be erected immediately demarcating the said land in paragraph (3) from the land in paragraph (1) above. This is because the measurements of the said land in paragraph (3) are never consistent as the water level of the dam will always affect its size. Judgment is hereby entered in favour of the plaintiffs. Costs of N500 (Five Hundred Naira) awarded to the plaintiffs.”

The defendant felt unhappy with the position taken by the trial court and appealed to the court below which heard the appeal. In its judgment handed out on 21st day of April, 2011, it had no difficulty in allowing the appeal. The appeal against the judgment of the trial court was allowed. While same was set aside, the suit of the appellants, as plaintiffs at the trial court, was dismissed by the court below.

The plaintiffs have decided to appeal to this court.

Briefs of argument were filed and exchanged by the parties. On 27th October, 2014 when the appeal was heard, learned counsel on both sides adopted and relied on their respective briefs of argument. Learned counsel for the appellants urged that the appeal should be allowed while the learned counsel for the respondent urged that the appeal should be dismissed.

On behalf of the appellants, the two issues couched for determination of the appeal which were adopted by the respondent read as follows:-

“1. Whether in consideration of the pleadings vis-a-vis the evidence led, the lower court was not in error when it held that the land in dispute was not identified by the appellants.

2. Whether in view of the evidence adduced, the lower court was not wrong to have held that the appellant (sic) failed to prove their case before the trial court.”

I wish to start with the consideration and the resolution of issue 2 as restated above by me.