Zanna Laisu Kazalma & Anor V. Baba Modu Mala Gaddi & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Borno State delivered by Honorable Justice A. Z. Mussa in Suit No BOHC/MG/CV/36/2016 on the 27th of April, 2017.

The Respondents were the plaintiffs in the lower Court and their claims against the Appellants were for a declaration of ownership of the property lying and being at Limanti Ward, behind Old Prison Yard, measuring approximately 714.55 square meters, damages for trespass and perpetual injunction. The case of the Respondents in the lower Court was that they are the surviving children of late Mala Gaddi and that their father purchased the property in dispute sometime in 1937 from one Alhaji Kyarimi and settled therein with his family and that the property is presently bounded on the western side by a road known as Shehu Sanda Kura Road, on the eastern side by a small access passage, on the southern side by a property belonging to one Ya Aisa and on the northern side by a property belonging to person popularly known as Oga Boda. It was their case that when their father came to Maiduguri together

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with Shehu Sanda Shehu Kyarimi in 1937, he was, as the Mala of Borno, offered an official house at Budum area of Maiduguri, but their father rejected the house and purchased the property in dispute and which at the time was an empty plot of land measuring 400 square meters and with a tent on top. It was their case that their late father expanded the property by purchasing the neighbouring properties of Yakindin, Ya Umma and Ya Kaka and that he erected a building thereon and lived therein with his family.

It was the case of the Respondents that on the death of their father in 1940, the property devolved on their mother and the four children and that after the rightful entitlement of their mother amounting to one eighth of the property was given to her, the four sons, including the two of them, occupied the property and that their late father was buried on the property. It was their case that their two brothers are deceased leaving two of them aged seventy nine years and seventy six years respectively and that they were both born in the said property and have lived therein for over seventy years without any hindrance or confrontation from anyone and have

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remained in undisturbed possession of same. It was their case that in 2009 they leased a portion of the property to a company called Emerging Markets Telecommunication Services Ltd (Etisalat) for fifteen years and the company erected a telecommunication mast thereon. It was their case that recently, the second Appellant served them with a notice to quit the property through the first Appellant in the mistaken belief that the property belonged to the Emirate Council and that the Appellants had since then mobilized building materials to the land and caused the second Respondent to be arrested by the Police. It was their case that the Appellants did not at anytime own the property and they had no right to the property.

The case of the Appellants in response was that the property in dispute measuring 750 square meters belonged to the second Appellant and that the portion of land was cleared and built by Shehu Abubakar Garba Ibn Ibrahim in 1907 to house his servants as the property of the second Appellant. It was their case that when Shehu Sanda Kura succeeded Shehu Abubakar Garba in 1922, he housed his servant Mala Haruna in the property and that when Shehu

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Sanda Kyarimi succeeded Shehu Sanda Kura in 1937, he housed Mala Gaddi, the father of the Respondents, who came with him in the property, knowing it to be the official house of the second Appellant. It was their case that when Mala Gaddi died in 1944, Shehu Sanda Kyarimi housed his servant Mala Haya in the property in dispute and that Mala Haya resided in the property for thirty years until his death. It was their case that upon the death of Mala Haya, the Respondents sought for and were granted permission to occupy the house by late Ya Maira Yakura, the leader of the women of Borno Emirate Council, on a permissive basis and that late Ya Maira Yakura also granted a portion of the land of the property to one Nana Bawa Kura Shehuram who constructed one room thereon and stayed therein until she vacated same in 2009.

It was the case of the Appellants that during the reign of Shehu Mustapha Umar El-Kanemi, the property was renovated by the construction of a fence and the addition of a lobby and that in the reign of Shehu Abubakar Ibn Umar Garba El-Kanemi all the properties of the second Appellant, including the property in dispute, were compiled and

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registered and the property in dispute was covered by Maiduguri Metropolitan Council Customary Certificate of Occupancy No BO MMC/Land/12305. It was their case that the father of the Respondents never purchased the property in dispute and the property never devolved on the Respondents as inheritable estate and that the property has always been in the control and possession of the second Appellant. It was their case that it was the late Ya Maira Yakura that granted the lease of portion of the property to Etisalat and she instructed that the name of the senior brother of the Respondents, Baba Kolo Mala, be used to formalize the lease.