Ahmadu Ali V. Ahmadu Salihu & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal is against the judgment delivered on 20/3/2008 by the High Court of Kogi State presided over by Honourable Justice Tom Yakubu. The High Court of Kogi State will hereinafter be imply referred to as ‘the lower court’. The lower court in its said judgment dismissed the claims of the Claimant and granted the counter-claim of the Defendants in part.

The Claimant commenced the instant action against the Defendants by a writ of summons dated 31/1/2007 and which was filed on the same day. The endorsements on the said writ of summons read thus:-

“The Claimant as the village head of Banda village in Oworo District of Lokoja Local Government Area of Kogi State claims for and on behalf of him (sic) and as representing members of Banda village, the owner (sic) of a piece of land known, called and referred to as Okumi, which land is situate, lying and being within Oworo District of Lokoja Local Government Area of Kogi State. The 1st and 2nd defendants are farmers from Esikaku village who have trespassed unto the said Okumi land by farming on same without prior consent of the Banda village who is the owner of the land. The 3rd defendant is the village head of Odama Community and is sued for and on behalf of himself and members of Odama village because when 1st and 2nd defendants who are sued on behalf of themselves and members of Esikaku village were confronted by the Claimant, they averred and alleged that it was the 3rd defendant that gave them the land on which they were farming which land does not belong to the 3rd defendant but to the Claimant. The land is situate at a place along Lokoja – Abuja road and is within the 16 kilometers from Lokoja Post Office: the land has five ponds on it and was founded by a Banda’s ancestor called Ometa and the land has since time immemorial belonged to and controlled by Banda village exclusively until recently, when the 1st and 2nd defendants trespassed to the land at the instance of the 3rd defendant and the 3rd defendant is even claiming ownership of the land.

WHEREOF the Claimant claims as follows:

1. A declaration that the Claimant is the one entitled to a Statutory Right of Occupancy over the said parcel of land known as ‘OKUMI’ with the five ponds thereon and ail appurtenances, thereto.
2. An order of perpetual injunction restraining the defendants, their servants, privies, agents, workmen, tenants and anybody claiming through them from further trespassing to the said land or in any way whatsoever interfering with the Claimant’s title, interest, right, use and enjoyment of the land, the ponds thereon and all appurtenances thereto”

The case set up in the Statement of Claim by the Claimant in support of the reliefs being claimed is to the effect that the land in dispute was founded by Banda’s ancestor called and known as Ometa who was a native of Banda and a farmer as well as a hunter. Ometa was said to have moved from Banda and disvirgined the land in dispute called Okumi and settled thereon exercising control over the land without challenge, let or hindrance from anyone. The Claimant traced the line of successors in title to the land in dispute from Ometa to himself and said that he had been in charge of the said land since 1985. The uses to which the land in dispute and the ponds thereon are being put to were stated. The Claimant described the land in dispute as being along Lokoja – Abuja road and at a place called Kuroko and that the said land is within 16 kilometres of the Lokoja Post Office. The land, it was further stated is about 3 kilometres wide and 4 kilometres long and located on the right hand side if one is going to Abuja from Lokoja, and the boundaries of the land were set out. The Claimant said that, when he first saw the 1st and 2nd Defendants on the land, he sued them before the Area Court Grade 1 Lokoja as they disputed his right thereto. When the said court became defunct, the case was transferred to the Upper Area Court II Lokoja for adjudication. It was in this court that it was discovered that the land is in an urban area and that the Upper Area Court has no jurisdiction to entertain the case; hence the institution of the instant case before the lower court.

The Defendants filed a Joint Statement of Defence. Therein the 1st and 2nd Defendants denied being representatives of Esikaku Community in this action. They claimed to be tenants of the 3rd Defendant on the land in dispute. The 3rd Defendant on his part claimed that the land in dispute is an island (Eda) known as Ebu-gabi belonging to the Odama Community from time immemorial. It is the case of the Defendants that the land in dispute was founded by Agabi. The Defendants pleaded how Agabi came to found the said land. They also pleaded the various names by which the land in dispute is known or called. The line of successors in title from Agabi to Shaibu Hassan (i.e. 3rd Defendant) the present village head who ascended the throne of Odama and Ebu-gabi 47 years ago was pleaded. The land in dispute according to the Defendants is about 5 kilometres long and 3 kilometres wide and the boundaries were set out. The defendants said that no one has effectively challenged the ownership of the land in dispute by the Odama Community from time immemorial save the Claimant and his community members who have been trespassing thereon. The Defendants having averred in paragraph 21 of the Statement of Defence thus:-

‘WHEREOF the Defendant (sic) prays that the suit be dismissed as frivolous and baseless’: proceeded to counter-claim thus: –

COUNTERCLAIM

i) A DECLARATION that the Odama Community are the customary owners and are entitled to the Customary Right of Occupancy of Ebugabi land together with all the fish ponds thereof situate and lying at Ebugabi in Kogi L.G.A. of Kogi State bounded in the North by Ikumo Community land, in the SOUTH with Ogbangede Community land, in the East with ESIKAKU Community land and in the WEST with Banda Community.

ii) N500,000.00 as damages for trespass.

iii) Perpetual injunction restraining the claimant either by himself, agents, servants or privies from further trespassing, alienating or interfering in any manner howsoever with the Defendant’s (sic) ownership of the land.”

The claimant adduced evidence in the proof of his case through 4 witnesses while the Defendants adduced evidence in the proof of the case they set up in their Joint Statement of Defence through 7 witnesses. After considering the pleadings of the parties, and the evidence adduced by the parties in the proof of their respective cases, the lower court in its judgment at pages 121 – 142 of the Record of Appeal dismissed the case of the Claimant and granted relief (i) and (iii) of the Defendants’ counter-claim. Relief (ii) of the counter-claim was refused as there was no iota of evidence adduced in its proof.

The Claimant who will hereinafter be referred to as ‘the Appellant’ being dissatisfied with the judgment of the lower court lodged an appeal against the whole of the said judgment by a Notice of Appeal dated 2/6/2008 and filed on 5/6/2008. The Notice of Appeal contains seven grounds of appeal and the said grounds shorn of their respective particulars read thus:-