Mallam Sani v. Sani Kwendo Bandi (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the High Court Kebbi State sitting at Zuru delivered by Hon. Justice Abbas Ahmad on 24th November, 2020 granting the reliefs of the plaintiff.

The plaintiff now respondent took out a writ of summons and statement of claim respectively filed on 8th July, 2017 claiming declaratory and injunctive reliefs as well as damages against the defendant as follows:

(a) A declaration that the plaintiff is the person entitled to the grant of a statutory right of occupancy in respect of all that parcel of land described as Plot No: 70 LP 18 Ph. 111 GRA Layout Zuru and is demarcated by beacons Nos. Zu1060, 1042, 1043, and 1059 which parcel of land is described in the grant of right of occupancy No: Zu/G/0106 dated 27th January, 1995.

(b) The sum of two million naira (N2,000,000.00) only as damages for trespass from the defendant by himself, his servants, agents/privies.

(c) An order of perpetual injunction restraining the defendant by himself his servant, agents, and/or privies from further acts of trespass on the plaintiff’s land described (a) above.

Upon the settlement and exchange of pleadings, the matter proceeded to trial wherein parties led evidence and tendered documentary exhibits. At the end of the trial and in a considered judgment delivered on 24th November, 2020, the court found for the plaintiff and granted all the reliefs sought.

Being dissatisfied with the judgment of the lower court, the defendant now appellant appealed to this court through a notice of appeal filed on 9th February, 2021 at pages 103-107 of the record of appeal. The said notice of appeal contains five grounds of appeal.

The appellant in his brief of argument formulated five issues for determination as follows:

1. Whether the learned trial Judge was right when he delayed resolving issue of jurisdiction until after determining the merit of the case.
2. Whether the learned trial Judge was right when held that:

in the instant case, looking at the evidence led in proof of issue No: 2 i.e. whether this suit is not statute barred, I am of the view that the defendant failed to substantiate his claim with credible and reliable evidence… (sic) it is settled law that this statute of limitation does not apply to cases of concealed fraud so long as the person defrauded remains ignorant without fault to entertain.

3. Whether on the strength of evidence adduced by the respondent, the trial court was right when it granted the declaratory reliefs claimed by the respondent as claimant before it.
4. Whether the learned trial Judge was right when he arbitrarily awarded the sum of N2,000,000.00 to the respondent as general damages in complete disregard to principle of award of damages and without stating any reason for the award.
5. Whether the originating process before the trial court in suit No: KB/ZR/HC/12CV/2017 filed on 8th June, 2017 is competent and confer jurisdiction on the trial court.

The respondent in his own brief of argument also formulated five issues thus:

1. Whether the appellant suffered any miscarriage of justice when the court below in its final judgment first resolved the issue touching on the merit of the case before it proceeded to resolved the issue as to whether the action is statute-barred.
2. Whether the suit initiated by the respondent against the appellant before the court below is a statute-barred action.
3. Whether the decision of the court can be supported having regard to the evidence proffered before it by the contending parties in litigation.
4. Whether the writ of summons filed by the respondent against the appellant before the trial court is incompetent.
5. Whether the award of two million naira general damages by the trial court against the appellant and in favour of the respondent is reasonable and justifiable having regard to the facts and circumstances of the case.

The two sets of issues formulated above are seemingly the same but the five issues formulated by the respondent are apt and quite apposite for the just determination of the appeal. I will utilize the five issues of the respondent in my determination of this appeal.

Before proceeding any further, I will first of all restate the facts as encapsulated in the respondent’s brief of argument. The respondent who ordinarily resides in Abuja applied to Kebbi State Government through Kebbi State Department of Land, Survey, Town and Country Planning for allocation of a piece of land in GRA Zuru, Kebbi State. On 7th of January, 1995 the Kebbi State Government approved the said application and allocated plot No: 70 LP 18Ph. 111 GRA Zuru covered by Right of Occupancy No: ZU/G/0106/0106 dated 27th January, 1995 in favour of the respondent. Sometimes in 2013, he discovered that the appellant had trespassed on the property and had erected a structure thereon.

The appellant denied the respondent’s claim and averred that he bought the land in dispute from one Alhaji Umar Jibo in the presence of witnesses.