Aliyu Maiyaki V. Alhaji Roba Maidoya (1988)

LawGlobal-Hub Lead Judgment Report

MAIDAMA, J.C.A.

The main issue raised by this Appeal is whether it is proper for a Court to raise an issue suo motu and decide on it without giving the parties to the proceedings an opportunity of being heard. The facts which gave rise to this appeal are as follows:

The plaintiff, who is now the appellant, took out a writ of summons against the defendant, in Suit No. HJ/158/84, in the High Court of Justice, Jos, asking for the following reliefs:-

(a) a declaration of title/ownership of all that piece of land situate along Keffi-Gunduma-Keffi Road in the Keffi Local Government Council Area of Plateau State of Nigeria consisting of 72.03 hectares, the boundaries of which are delineated by a red verged line on the plan attached to a Certificate of Occupancy No. PL 5943 which covers the said piece of land.

(b) Perpetual injunction restraining the defendant, his agents and or servants from further trespassing on the land.

(c) N5,000.00 (Five thousand Naira) damages for trespass.

Pursuant to the order of the Court, pleadings were filed and exchanged.

In his Statement of Claim, the plaintiff averred that the land in dispute belonged to his father MAIYAKI KHATSOR, who was the first to settle on and cultivate it; for that reason, the whole area was named as “ANGWAN MAIYAKI”. The plaintiff further averred that on the death of his father, he inherited the land in dispute and continued to cultivate it without disturbance until in 1982 when the defendant trespassed upon a portion of it. Consequently, he reported the matter to the Emir of Keffi who sent his Madaki to intervene and effect a settlement. A settlement was reached by dividing the land between him and the defendant. He later obtained a Certificate of Occupancy No. PL 5943 in respect of his own portion. Inspite of this, the defendant continued to trespass on his land.

The defendant controverted the claims of the plaintiff in his Statement of Defence, and in paragraph 6 of the said Statement of Defence, he specifically pleaded the defence of res judicata. Paragraph 6 of his Statement of Defence reads:-

“6(a) sometime in 1959 the plaintiffs ancestors laid false claim of ownership to the property which is the subject matter of this suit. The dispute was between the Maiyaki Family of which the plaintiff is a descendant and the Alagabe Family of which the defendant is a descendant. In order to promote peace amongst the parties the Emir of Keffi set up a panel under the Chairmanship of the District Head of Keffi to establish the true ownership of the land in dispute. The District Head carried out his investigations and made a written finding to the Emir that the land in dispute belonged to Dauda the son of Alagaba. A certified true copy of the said finding or report will be founded upon at the trial of this action.

(b) In suit No. 177/81 the defendant’s father and one Hussaini Maiyaki the brother of the plaintiff to the Keffi Civil Area Court for trespassing on his piece or parcel of land which is the subject matter of this suit. The said Hussaini Maiyaki did not dispute the defendant’s father’s claim to ownership of the property but only denied plucking locust beans therefrom. A certified true copy of the proceedings in the said suit will be relied upon at the trial of this suit.

(c) Sometime in 1982 one Kyantu Mada trespassed on a part of the land now in dispute by erecting a building thereon. The defendant’s father Alhaji Muhammadu also known as Alhaji Dauda sued him (Kyantu Mada a descendant of Maiyaki) to the Keffi Civil Area Court where, on Kyantu Mada’s admission, declared the defendant’s father, Alhaji Muhammadu, the owner of the land in dispute on 25th February, 1982 in Suit No. CV/71/82. A certified true copy of the proceedings herein mentioned will be relied upon at the hearing of this suit.

(d) In Suit No. CV/F1/314 of 1982 the plaintiff sued the defendant to the Plateau State Upper Area Court for a declaration of title to the piece of land in dispute. Having heard evidence from both sides and visited and inspected the land, the said Court dismissed the plaintiff’s claim and found for the defendant. A certified true copy of the record of trial of the plaintiffs claim will be founded upon at the trial of this action.

(e) The plaintiff being dissatisfied with the decision of the Upper Area Court appealed against the same to the Customary Court of Appeal Jos which upheld the decision of the said Upper Area Court. The judgment of the Customary Court of Appeal No. CCA/37A/1983 dated 6th December, 1984 will be relied upon at the trial of this suit. The plaintiff has not appealed against the judgment of the Customary Court of Appeal.”