International Beer And Beverages Industries Limited & Anor V. Mutunci Company (Nig) Ltd. (2011)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
OBANDE F. OGBUINYA, J.C.A. (Delivering the Leading Judgment)
Before the High Court of Kaduna State, presided over by Hon. Justice Abdulkadir Othman, the respondent, as plaintiff, in suit No. KDH/KAD/313/03, sued the appellants, jointly and severally, claiming a declaration, orders damages and injunction over a plot of land situate and known as plot E7 Kudenda Industries Layout, Kaduna. The parties filed and exchanged pleadings.
From the processes filed, the facts of the matters are not complicated. The plot in dispute originally belonged to a company called Yakamata Multicom Ltd. The first appellant claimed that it purchased a strip of that plot, measuring 169.53M by 6m, from the said Yakamata Multicom Ltd. in July, 1999 because its underground pipes, which discharged waste products from its factory into Kaduna Rivers, were buried therein.
On its part, the respondent claimed that it purchased the entire plot of land from the same Yakamata Multicom Ltd; in 2001, without the latter disclosing the earlier sale to the first appellant to it (the respondent). When the respondent noticed the underground pipes, it instituted Suit No. KDH/AD/101/2001 for possession of it. The Kaduna State Ministry of Lands and Survey intervened and it was agreed that the respondent cede to the first appellant that strip previously bought it. Consequently, that suit was struck out. In 2003, the said ministry issued a certificate of occupancy over the entire plot, including that strip bought by the first appellant, to the respondent and on the basis of which it (the respondent) instituted the action that led to this appeal.
Thereafter, the matter proceeded to full scale trial. The respondent, in prove of its claims, called four witnesses, PW1 – PW4. To disprove the respondent’s claims, the appellants fielded three witnesses. At the conclusion of hearing, learned counsel for both parties addressed the court through filed written addresses in line with their applications to the court. On 09/11/2006, the court below delivered its judgment in which it entered judgment for the respondent in terms of its claims over the entire plot.
The appellants were aggrieved by that judgment.
Consequently, they filed a four-ground notice of appeal on 28/11/2006. Later on, and pursuant to the leave of this court granted to them, they filed an amended notice of appeal hosting six grounds of appeal.
Eventually, the appeal came up for hearing on 09/02/2011.
On that day, learned counsel for the appellants, O. Okoye, Esq adopted the appellants brief of argument, deemed filed on 26/11/2007, and their reply brief of argument, deemed filed on 15/11/2010, as representing his arguments in support of the appeal.
Similarly, learned counsel for the respondent, S.K. Dawi, Esq, adopted the respondent’s brief of argument, deemed filed on 14/04/2010, as representing his submissions against the appeal.
The appellants, in their brief of argument, identified four issues for determination in this appeal to wit:
“1. Whether the entire judgment of the lower court is Not a nullify?
- Whether the lower court was right in awarding N2, 000,000.00 as general damages?
- Whether the lower court was right in ordering the defendent to demolish the entire wall erected
without KASUPDA approval and pack away all the debris when there was no prayers claimed before it in respect (sic) that relief?
- Whether the lower court was correct in her findings and conclusion that the plaintiff is the rightful owner of plot No E7 Kudenda Industrial Layout, Kaduna on the basis of the deed of assignment” (Exhibit “A”) and the certificate of occupancy (Exhibit “D”) alone and adjudging the defendant a trespass’s into the plot in dispute? ”
On the other hand, the respondent, in its brief of argument, formulated four issues for determination in the manner following:
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