Mallam Muhammadu Jiya V. Muhammadu Kanye Agbabo Awumi & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment delivered on 16/2/2005 by the High Court of Kogi State (coram – Hon. Justice S.K. Otta and Hon. Justice T.S. Yakubu) sitting in its appellate capacity. The said High Court will hereinafter simply be referred to as “the lower court”.

The Plaintiff (now Appellant) instituted the instant action against three (3) Defendants before the Upper Area Court No. 1, Lokoja (which will hereinafter simply be referred to as “the trial court”) claiming the following: –

“1. An order of declaration that the plaintiff owns Sanmi farmland

2. An order that the defendants shall vacate Sanmi farmland immediately and stop further trespass and threats.
3. An order of permanent injunction to restrain and stop the defendants and their agents from trespassing on the Sanmi farmland.
4. N2,000.00 damage for trespass.”

The facts upon which the Plaintiff (who will hereinafter be simply referred to as “the Appellant”) relied upon in support of the claims stated above are that he is the customary owner of a large piece of land called Sanmi land, situate at Tsanku in Kupa District of Kogi Local Government Area, Kogi State. The Appellant claimed to have inherited the said Sanmi land from his parents and that he had been in peaceful occupation of the same until recently when the first of the Defendants he sued trespassed thereon; and challenged his (i.e. Appellant’s) title thereto. In this regard the Appellant said that the first of the Defendants he sued claimed to have got the land from the second of the Defendants he sued and who is a native of Gogban village. The Appellant further said that the third of the Defendants he sued is a relation of the first of the Defendants. This Defendant the Appellant further said was allowed by his father to farm on part of the land in dispute about 10 years previous. That the said Defendant had always paid tributes but stopped doing this immediately his (i.e. Appellant’s) father died and has remained on the land unlawfully. It is the case of the Appellant that the unlawful entry by the Defendants on Sanmi farmland has deprived him of the use of his land and has occasioned him damages. The Defendants/Respondents all denied the Appellant’s claims before the trial court.

The trial court, having had the benefit of the evidence adduced by the parties and their respective witnesses and having also visited the locus in quo entered judgment in favour of the Plaintiff/Appellant on 20/6/2003. The Defendants being aggrieved with the judgment of the trial court appealed against the same to the lower court in its judgment delivered on 16/2/2005 allowed the Defendants’ appeal. The declaration and orders on damages made by the court were set aside and a verdict dissatisfied with the judgment of the lower court sought for and obtained the leave of the said court on 16/3/2005 to appeal against the same to this Court. The lower court in granting leave to the appellant also struck out the name of the 2nd Respondent – Nna Adamu Gogban as the said court was informed that the party died since the inception of the suit. the Plaintiff/Appellant subsequently filed on 23/3/2005 a Notice of Appeal filed contains seven (7) grounds of appeal. The said grounds without their particulars read thus:-

“GROUND 1

The learned Justices of the High Court sitting on Appeal (sic) erred in law when they held that the traditional history as proffered by the Plaintiff/Appellant herein is tenuous, sketch and deficient to sustain a claim of this nature, that is the claim for declaration of title and further held that the fining of the trial Court on traditional history is perverse and dismissed the case of the Plaintiff/Appellant.

GROUND 2

The learned Justices of the High Court sitting on Appeal (sic) erred in law when they held that the evidence of the PW2 and PW3 is against the interest of the Plaintiff concluded that the oral history of the Plaintiff/Appellant herein is not satisfactory.

GROUND 3

The lower court misdirected itself in law when it held that the trial court in the final part of his Judgment awarded declaration of title to a parcel of land different to (he one testified upon or claimed by stating situate, lying and being at Abugi in Kupa District of Lokoja and the trial court awarded what was not asked for

GROUND 4

The learned Justices of the High Court held in the alternative that assuming traditional history of both parties are plausible but conflict one with the other that the Plaintiff/Appellant herein did not lead evidence of acts of possession in line with the rule in Kojo v. Bonsie (1957) 1 WLR 1223 and dismissed all the other claims of the Plaintiff/Appellant.