Kumaga Dauda & Anor. V. Kave Iba (2006)

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IFEYINWA CECILIA NZEAKO, J.C.A.

This appeal arose out of a claim instituted at the Area Court, Katsina-Ala, Benue State by the plaintiff, who is the respondent in this appeal, and another. They instituted the action against the defendants, the appellants herein and others. The claim was for a declaration of title to a piece of farmland lying and situate at Gaambe Mbacher in Katsina-Ala Local Government Area (LGA) of Benue State of Nigeria. The defendants who denied the claim, also had a counter-claim.

The Area Court heard the parties and their witnesses, visited the land in dispute and later gave judgment in favour of the plaintiff.

Dissatisfied, the defendants appealed to the High Court of Justice, Katsina-Ala Benue State, sitting in its appellate jurisdiction, coram, Utasaha, J. and Eko, J. The High Court heard argument of counsel for both parties and dismissed the appeal, affirming the judgment of the Area Court. Again dissatisfied, the defendants have now appealed to this court against the said judgment on 3 grounds.

For this appeal, parties filed and exchanged briefs of argument. The appellants’ brief of argument filed out of time on 3/6/2003, by leave of the court was deemed filed within time on 27/10/2003. Also the respondent’s brief filed out of time on 19/3/2004 was by order of the court deemed filed within time on 9/12/2004.

In their brief of argument, the appellants identified three issues for determination thus –

1. Whether the respondent (as plaintiff) identified the land claimed with definitive certainty and clarity as required by law to be entitled to the decree of title made in his favour – (said to cover ground 2 of the grounds of appeal).

2 Whether on the evidence and the law the respondent had proved his root of title to the disputed land. – (From ground 3).

3. Whether, having regard to the weight of evidence the lower court was justified in entering a verdict for the respondent. – (From ground 1).

The respondent on his part formulated two issues. –

(a) Whether the appellate High Court was right to have upheld the finding of the trial court that the respondent proved the boundary of the land claimed with certainty.

(b) Considering the evidence, whether the appellate High Court … was right to have affirmed the decision of the trial Area Court.

At the hearing of the appeal, Mr. Orkuma learned counsel for the appellants applied for time to “regularize” his reply brief which was filed out of time without leave of the court as required by the rules of this court. Mr. Tor – Musa, learned counsel for the respondent saved the day – for all concerned, from further delay in hearing the long pending appeal instituted since 1997. He applied to withdraw his notice of preliminary objection. Thus, withdrawn, this court struck out the said notice at pages 2(iv) and 2(v) of the respondent’s brief Mr. Orkuma also sought to withdraw his reply brief. The incompetent reply brief was also struck out.

Each learned counsel thereafter adopted his brief of argument. S.A. Orkuma, Esq., for the appellants urged us to allow the appeal. For the respondent, A.M. Tor – Musa, Esq. urged us to dismiss the appeal.

Before addressing the issues for determination, I consider it worthwhile to clarify the status of parties to this appeal, particularly the respondent, which seemed, upon the perusal of the records and the brief of argument of counsel for the parties, not to have been understood by the appellants.

The two plaintiffs named in the suit at the trial Area Court, namely Gbafan Iba and Kave Iba ostensibly brought the action in a representative capacity for their family, against the 5 defendants named therein on behalf of their own family. At the hearing, each party announced the name of the person/persons to represent them. Thus, for the plaintiffs, the 2nd plaintiff Kave Iba was chosen to represent them and for the defendants the 1st and 5th defendants Kumaga Daudu and Mchianan Mbatsuun, were chosen (see page 3 of the records, lines 7 – 19). This explains the appearance in the title of the suit subsequently and up to this appeal, of only one name, that of the 2nd plaintiff, as plaintiff who is the respondent herein and of the 1st and 5th defendants as defendants, and they are the appellants before this court.