Alhaji Danasabe Abdullahi & Anor. V. Group Capt. Stephen Ezra Hedima (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Kaduna State High Court presided over by Hon. Justice Umaru Adamu in suit No. KDH/KAD/280/95 delivered on 5th October, 2004 wherein the learned trial judge granted all the reliefs sought by the Respondent as Plaintiff in the court below.

In an amended statement of claim, the Respondent had asked for the following reliefs:-

(1). A declaration that he is entitled to a right of occupancy on and over all that piece of land situate, lying and being at plot TK.53 Baddiko North Extension of about 0.04911 as shown on Kaduna Sheet 45 and covered by a right of occupancy No. NC 23871 issued by the Kaduna State Government.

(2). A perpetual injunction restraining the Defendants by themselves, their servants, agents and or privies or otherwise from committing acts of trespass on plot No. TK.53 Baddiko New Extension Kaduna.

(3). N150,000.00 (One hundred and fifty thousand naira only) being special damages for the Plaintiff’s demolished improvements on the said piece/parcel of land.

(4). N50,000.00 (Fifty thousand Naira only) being general Damages for the Defendants acts of trespass and disturbance of the Plaintiffs peaceful possessions/enjoyment of the said piece/parcel of land.

The 2nd Respondent filed her statement of defence and counter claim seeking a declaration that “the property is TK.51 and not TK.53 Baddiko North Extension, Kaduna” and also for damages. At the conclusion of the case, the trial judge found for the Respondent (plaintiff) and granted all the reliefs sought by him. Dissatisfied with the decision of the learned trial judge, the Appellants have appealed to this court. In an amended Notice of appeal filed on 13/9/05 with the leave of this court, eight grounds of appeal were filed out of which the Appellants have distilled six issues for determination as follows:-

1. Whether the learned trial judge was right when he held that the Respondent was entitled to the land in dispute without first determining whether the identity of the land was plot TK.53 Baddikko New Extension or Plot TK.51 Badikko New Extension.
2. Whether the identity of the land is plot TK.53 Badikko New Extension or Plot TK.51 Badikko New Extension.
3. Whether the Respondent was estopped from bringing the action at the lower court, the Respondent being aware of judgment of court of co-ordinate jurisdiction over the same subject matter.
4. Whether the learned trial judge was right when he held that the Respondent was entitled to the land in dispute when the Respondent failed to show any root of title.
5. Whether the learned trial judge was right when he held that the Respondent was entitled to damages.
6. Whether or not the judgment delivered by the learned trial judge 12 months after the close of addresses occasioned a miscarriage of justice.

The learned counsel for the Respondent however formulated four issues. These issues are:-

1. Whether the learned trial judge given the state of the pleadings and the evidence before him came to the right decision in finding for the Plaintiff at the lower court.
2. Whether the plea of estoppel avails the Appellants, the learned trial judge having ruled on the matter in the course of the proceedings and restated same in the final judgment.
3. Whether given the weight of evidence adduced at the trial relating to the issue of damages the learned trial judge could have come to a different conclusion on awarding damages for the destruction caused by the 1st defendant.
4. Whether the non-compliance with the provision of section 294 of the constitution of the Federal Republic of Nigeria in any way occasioned any miscarriage of justice.

In determining this appeal, the issues as formulated by the Appellants will be adopted, after all it is their own appeal and the issues seem to have comprehensively covered their grudges. I intend to resolve issues 1, 2 and 4 together since they are interwoven and interrelated.

It was the observation and contention of the learned counsel for the Appellants that both in the pleadings and the evidence led, issues were joined by both parties on the identity of the land, however, the learned trial judge while deciding the matter did not make any declaration on the identity of the land. He submitted that where the identity of the land is not certain, no order of declaration can be made relying on the cases of Adeyori V. Adeniran (2001) 10 NWLR (pt 720) 151 at 165 para E – F, 166 para A – B, Nwogo V. Njoku (1990) 3 NWLR (pt 140) 570.

Referring to the evidence of Pw2, Dw1, Dw2 and Exhibits 5, 6, and 10, learned counsel further submitted that there was abundant evidence to show that the Appellants challenged the Respondent’s claim and never admitted to the fact that the Respondent’s claim on the land in dispute is plot TK.53. That the court below ought to have made findings of fact as to whether the land is plot TK.51 or TK.53 Baddiko New Extension or not. He urged the court to resolve this issue in favour of the Appellant.

On issue 2, he submitted that the Plaintiff did not in any way establish the identity of the land, rather his relying on Exhibits 1 and 2 to show that the said land is plot TK.53 was improper as Exhibit 2 has no root of title. Also that Exhibit 2, the certificate of occupancy by itself alone is never associated with title; the Plaintiff must show how he derived the title. He placed reliance on Ololunde V. Adeyejo (2000) 10 NWLR (pt 676) 562 at 588 para B-C, Adeshayi V. Oluwolamba (1996) 12 NCNJ 95 at 96.

On the issue of root of title, he submitted that one Tanimu Zaria whom the Respondent alleged he bought the land from, testified as Dw3 and denied ever selling the land or any land for that matter to the Respondent. He urged this court to hold that the Respondent failed to trace his root of title to any body notwithstanding the issuance of certificate of occupancy in his favour. Relying on the two cases already cited, he urged the court to so hold in favour of the Appellant.