Abe & Anor V. Damawa & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C. 

This appeal is against the judgment of the Court of Appeal Makurdi Division delivered on the 24th day of May, 2011. The Court of appeal in its judgment affirmed the decision of the High Court of Justice Benue State delivered by Justice T.U.F Puusu. At the trial Court, by the statement of claim of 16th April, 2003, the 1st Respondent as plaintiff claimed as follows:

a. “N300,000.00 general damages in trespass

b. N300,000.00 general damages for the delay caused plaintiff’s intended development of plot.

c. Perpetual injunction restraining the defendant, his privies and agents from further trespass on disturbance of the plaintiff on the plot

d. A declaration that the plaintiff is the owner of plot BNC 7143 by virtue of deemed right of occupancy and by confirmatory allocation approval of his right by the Benue State Government.”

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The case of the 1st Respondent as Plaintiff at the trial Court is that he had been in possession of a plot of land near judges quarters Makurdi, measuring 1120m since 1970 and had planted mango and orange trees thereon. That in April 2001, he applied to the 2nd Respondent, Ministry of Lands and Survey, Makurdi for the issuance of statutory right of occupancy in respect of the said land. That the 2nd Respondent, after conducting necessary investigations, allocated the land to him with a right of occupancy No. BNC 7143. At the trial, he tendered the process as Exhibit B. Sometimes in 2003, he went to the land and discovered that the 1st Appellant started erecting structures on the said land. The 1st Appellant informed him that he was in the land with the authority of 2nd Appellant. He (1st Respondent) told the 1st Appellant that the land belonged to him. Notwithstanding this information, the 1st Appellant began to erect a building on the land. He made a report to the 2nd Respondent who issued a stop work notice and invited the parties for a meeting. The 2nd Appellant and the 1st Respondent attended the meeting. At the meeting, the 2nd Appellant allegedly stated that a file had been opened for him in respect of the land at the 2nd Respondent’s office but was missing. According to the 1st Respondent, the 2nd Appellant was unable to produce the file number or any other information to show that he had documents to support his claim to the land.

The 2nd Appellant who was joined as a party in the course of the proceedings filed a statement of defence and counter-claim. The 2nd Respondent herein (was also joined as 3rd defendant at the trial Court) he filed a statement defence and defence to the counter-claim of the 2nd Appellant. At the trial, the 1st Respondent tendered the right of occupancy dated 20th August, 2003 issued to him by the 2nd Respondent. It was admitted in evidence and marked as exhibit A1. The 2nd Respondent supported the 1st Respondent’s claim.

The 2nd Appellant’s claim was that he applied to the 2nd Respondent sometime in 1983 for the allocation of a plot of land. That the application was approved and sometime in 1998, some staff of the 2nd Respondent took him to the land and that he took possession thereof. He pleaded that he fenced the land and planted some economic trees and had remained in possession thereof. That in 2003, he started the construction of a building on the land which was being supervised by his friend, the 1st Appellant. he contended that the 1st Respondent suddenly appeared and claimed that the land belonged to him.

After pleadings were filed and exchanged, the parties called witnesses and tendered various exhibits. At the conclusion of trial, the learned trial judge gave judgment in favour of the Plaintiff/Respondent. Aggrieved by the decision of the trial Court, the two Appellants lodged their appeal at the Court of appeal, Makurdi Division. The lower Court in its judgment dismissed the appeal and affirmed the judgment of the trial Court. Dissatisfied with the decision of the lower Court, the Appellant filed a notice of appeal to this Court containing 6 grounds of appeal on the 16th day of August, 2011.

Learned counsel for the Appellants Tsuwa M.A Esq., filed the joint Appellants brief of argument on the 11th day of January, 2014, the joint Appellant’s brief of argument was deemed as properly filed and served on the 14th day of May, 2015. counsel nominated 4 issues for determination. The issues nominated for discourse by the Appellants are reproduced as follows:

1. “Whether or not there is evidence on the record adduced by the plaintiff/1st respondent before the trial High Court in respect of paragraph 3 of the pleadings to the effect that he acquired the land in dispute from his uncle, one Ujo Damawa. (Ground 1 of the grounds of appeal)
2. Whether or not Exhibit A1 was prepared by a person interested in the subject matter of the suit contrary to the provision of Section 91 (3) of the Evidence Act Cap 112, Laws of the Federation of Nigeria 1990. (Grounds 2 and 4 of the grounds of appeal)
3. Whether the doctrine of lis pendis applies to the facts and circumstances of this case. (Ground 3 of the grounds of appeal)
4. Whether or not 1st and 2nd defendants/appellant’s 3rd issue for determination in the Court below, which bothered on the 2nd defendant/appellant’s counter-claim at the trial High Court, was considered and thus formed part of the judgment of the trial Court and whether the 2nd defendant/appellant was entitled to the grant of the reliefs sought in his counter-claim since there was no evidence to it by the 1st respondent who was the plaintiff at the High Court. (Distilled form grounds 5 and 6 of the grounds of appeal)

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On the other hand, the learned Counsel for the 1st Respondent Obafemi Agaba Esq., filed the 1st Respondent’s brief of argument on the 15th day of February, 2022, the said brief was deemed as properly filed and served on the 21st day of February, 2022. Counsel nominated 3 issues for determination, the issues are also reproduced as follows: