Ahmadu Kwallo & Ors V. Muhammad Ashiru Abbas (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Kano State delivered on 30/3/2012 in Suit No. K/201/2004 instituted by the Respondent by means of the writ of Summons and statement of claim which were subsequently amended by the Amended Writ of Summons and Amended Statement of claim filed on 6/11/2005.

?The claim of the Respondent as plaintiff was for declarations, perpetual injunction and general damages of N1,500,000.00 against the appellants jointly and severally as defendants for trespass. The Respondent had claimed to be one of the sons/heirs of the late Alh. Abbas Sarkin Hausawa who was the holder of the Certificate of Occupancy No. LKN/COM/RC/85/15 covering Plot No. 52 plan No. KAN 545 at Katin Kwari Market Fagge Ta Kudu Fagge Local Government Area, Kano which consisted of buildings of flats, seven stores, 104 shops among other things with an undeveloped space which said property devolved on the entire heirs of the deceased, was distributed among the legal heirs by Upper Area Court Yan’hwaki in Suit No. CV/174/97 and later modified by the Sharia Court of Appeal

Kano leaving the undeveloped space unpartitioned.

It was also stated by the Respondent that after the partitioning of the property, the Appellants entered unto the unpartitioned space and erected seven shops thereon in disregard of warning by the legal heirs of the deceased who had let the unpartitioned portion or space to some tenants but deprived of that opportunity by the act of the Appellants.

The 1st, 2nd, 3rd and 5th Appellants filed joint statement of defence while the 4th Appellant filed a separate statement of defence. The 1st, 2nd, 3rd and 5th Appellants admitted that the Respondent was one of the heirs of Late Alh. Abbaas, but denied the existence of any undeveloped space unpartitioned out of the property of the deceased by the Upper AreaCourt Yanawaki as all the properties were distributed to his heirs.

They denied the alleged act of trespass and receipt of any warning from the Respondent. They stated that the Respondent has no space or piece of Land in the premises while they (1st, 2nd, 3rd and 5th defendants) had been using the frontage of their shops as dictated by the Custom and usage in the market.

In his amended statement of

defence filed on 10/5/2010, the 4th defendant also followed the line of defence of the 1st, 2nd, 3rd and 5th defendants by denying the alleged act of trespass and asserting that the Respondent (plaintiff) had no unpartitioned space and that he has been using his own shop in line with the usage and custom in the market. The Respondent filed a Reply.

At the trial of the suit, the Respondent testified and called another witness while documents were tendered and admitted as Exhibits. The 1st, 2nd, and 4th appellants (defendants) testified in the defence and their Learned Counsel tendered documents from the Bar which were admitted as exhibits. Upon conclusion of hearing and filing of written addresses by the Counsel, the learned trial judge entered judgment for the Respondent in the following terms;

“1. It is hereby declared that any open space in front of the 2nd, 3rd, 4th and 5th defendants in excess of (8) eight feet at plot 52, Fagge Tako Kanti Kwari Market, Kano covered by Certificate of Occupancy No. LKN/COM/85/15 bearing the name of Late Alh. Abbas Sarkin Hausawa devolved on his heirs.

2. It is also declared that the piece of Land by the right side

of the shop of 1st defendant at the premises described in relief number 2 above devolved on heirs of Late Alhaji Abbas Sarkin Hausawa.

3. It is declared that the 2nd, 3rd, 4th and 5th defendants have no right to erect any building in front of their respective shop in excess of 8 feet”.

Being dissatisfied with the decision of the High Court of Kano State and the orders of that Court, the defendants appealed to this Court through their Notice of Appeal dated 24th day of April, 2012 containing five grounds of Appeal. The Appellants’ Brief of Argument settled by Yakubu Abdullahi Esq., was subsequently filed on 26/3/14 while the Respondent’s Brief prepared by N.A. Ayagi Esq., was filed on 5/5/15 but deemed properly filed on 14/9/15.

The issues for determination in the appeal as formulated and argued by the appellant are the following;