Hajiya Maimuna Garba & Ors. V. Alhaji Baba Pate Zaria (2005)

LawGlobal-Hub Lead Judgment Report

KEKERE-EKUN, J.C.A.

The appellants herein who were plaintiffs in suit No. KDH/KAD/254/93 before the Kaduna State High Court sued the respondent, who was the defendant/counter-claimant seeking the following reliefs as contained in paragraph 12 of their amended statement of claim dated 25th March, 1997, at page 47 of the printed record:

(a) “A declaration that they have and are entitled to the right of occupancy in and over the piece of land and property known as No. V. 10 Ahmadu Bello Way, Kaduna.

(b) A declaration that the purported purchase of the 3 (three) rooms in the said property No. V. 10 Ahmadu Bello Way, Kaduna, is illegal, null and void and contrary to the principles of both Islamic Law and Land Tenure Law/Act.

(c) Perpetual injunction against the defendant by himself, his agents or privies from trespassing or further trespassing into the said plot No. V. 10 Ahmadu Bello Way, Kaduna.

(d) The sum of N100,000.00 (One hundred thousand naira) only as damages.”

The respondent also took out a writ of summons against the appellants in suit No. KDH/KAD/406/93 before the same court, claiming inter alia, title to a portion of the property known as No. V 10 Ahmadu Bello Way, Kaduna. The two suits were eventually consolidated. The appellants whose claim was earlier in time became the plaintiffs in the consolidated suit while the respondent became the defendant/counter-claimant. In paragraph 33 of the respondent’s further amended statement of defence/counter-claim dated 8th December, 1999, at pages 64-65 of the record the respondent sought the following reliefs against the appellants:

(a) “A declaration that the sale of the portion of the property No. V. 10 Ahmadu Bello Way, Kaduna, as shown in the sketch plan and coloured pink is lawful, legal, valid and of full effect.

(b) A declaration that the defendant/counter-claimant is the lawful and rightful owner/holder of the said portion of the property having validly bought same from one Alhaji Awwal, who bought from Alhaji Sani, who inherited it from Madam Ladi Bawa, who in turn bought from late Alhaji M. Musa Hadejia, who inherited the said portion of the property V. 10 Ahmadu Bello Way, Kaduna, from his late father, Alhaji M. Garba Hadejia under Islamic Law of Inheritance.

(c) An order demarcating the said property V. 10 Ahmadu Bello Way, Kaduna, along the northern boundary of the portion coloured pink i.e. along the broken red lines in the sketch plan.

(d) An order nullifying and invalidating the certificate of occupancy No. 011365 dated 19/1/79, same having been obtained by the 2nd plaintiff, Suleiman Garba by fraud and consequent order of injunction restraining the said 2nd plaintiff from parading himself as the rightful or lawful owner or holder of the certificate of occupancy over the whole property known and called V. 10 Ahmadu Bello Way, Kaduna, or in any way using the said certificate of occupancy to the detriment of the defendant.

(e) An order of perpetual injunction restraining the plaintiffs, their agents, servants, privies, assigns or any other persons claiming or acting through or on behalf of the plaintiffs from continuing any acts of trespass, or waste, or further acts of trespass and waste on the said property coloured pink in the sketch plan or in any other way or manner from interfering without infringing on the defendant’s title, right, privileges and interest appurtenant to the said portion of the property coloured pink in the sketch plan.

(f) General damages for trespass against the plaintiffs in the sum of N100,000.00 (One hundred thousand naira) jointly and severally.”

After numerous adjournment at the instance of the appellants, their case before the trial court was struck out for want of diligent prosecution and the trial proceeded on the respondent’s counterclaim. The respondent testified as the only witness. He was not cross-examined on his evidence. After the final address by the learned Counsel to the respondent but before judgment, the appellants applied to have their claim re-listed. The suit was accordingly relisted. The appellant again defaulted in prosecuting their claim Their case was closed and the matter adjourned for judgment. Judgment was delivered on 7th July, 2000, by M.T.M. Aliyu, J. wherein all the respondent’s reliefs in the counter-claim were granted. The appellants being dissatisfied with the judgment have appealed to this court by their notice of appeal dated 18/6/2002 containing two grounds of appeal.