Alh Bello Maigari & Ors. V. Alh Sani Mailafiya (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

By the endorsement on the writ of summons dated 17th January, 2005 taken out of the Registry of the Kaduna State High Court, sitting at Zaria repeated in paragraph 16 of the statement of claim dated the 14th January, 2006, the Appellant made claims against the Respondent as follows –

“1 A declaration that the land in dispute belongs to them having inherited their father.

2. A perpetual order restraining the defendant, his agents, assigns, privies or anyone whosoever

from trespassing or further trespassing on the land in dispute.

3. N50,000 00 general damages
4. Cost of this action.”

Thereafter in a motion dated the 17th of January, 2006, the Appellants also prayed the High Court for orders as follows –

1 An order of INTERLOCUTORY restraining the defendant either by himself, his agents, assigns or privies from trespassing or further trespassing and or doing anything prejudicial to the interest of the plaintiffs on the disputed land which is situate at Anguwan Liman Zaria and bounded by the house of the plaintiffs late grand father in the North by the house of Alkalin Rigachikun in the East by Bala and Mamman’s land in the south and by Sarkin Ruma’s in the West pending the hearing and determination of this suit.

2 Such further order(s) as this Honourable Court may deem fit to make in the circumstances.

The first prayer was granted in part after which the Respondent was granted enlargement of time to file his statement of defence to the action. The matter then proceeded to trial after which the High Court dismissed the claims in the judgment delivered on 6th of May, 2008 on the ground that the boundaries of the land in dispute were not pleaded by the parties.

Being dissatisfied with that decision, the Appellants’ caused a Notice of Appeal dated the 12/6/2008 to be filed against it, containing four (4) grounds of appeal. In the Appellants’ brief filed on the 16/9/2008, two (2) issues were distilled from the grounds of appeal and submitted for determination in the appeal. They are thus –

“a. whether the lower court ought to have taken judicial notice of the proceedings before it in arriving at its decision?

b Whether the Learned Lower Court Judge was right to dismiss the Plaintiffs (now appellants) suit before him as he did.”

The issue a was said to have been formulated from grounds of appeal 2 and 3 while issue b, from grounds, 1 and 4

The above issues were argued in the Respondent’s brief of argument filed on the 26/2/2009 in reaction to which an Appellant’s Reply brief was filed on 30/3/2009 B M BUHARI, Esq, learned counsel, who settled the Appellants’ brief had submitted on issues a that though the Appellants’ did not plead the boundaries of the land in dispute, the Respondent and the High Court were not left in any doubt as to which land is in dispute in the case He said from the contents of the motion papers, the affidavits filed in respect there of and the proceedings of the High Court at pages 7, 14-16 and 22 of the record of appeal, none of the parties was put in doubt as to the area claimed by the Appellants It was his contention that since the essence of pleadings is to make clear the case put forward by the parties to enable them prepare adequately for their evidence, the afore mentioned processes have achieved that purpose The case of ODEYEMI V. AGBEDE (2008) ALL FWLR (412) 1163 @ 1180 was cited and it was submitted that since the High Court had taken proceedings wherein boundaries of the land in dispute were amply stated and had decided thereon, it ought to have taken judicial notice of the boundaries because evidence, was led to prove the boundaries of the land described According to learned counsel, the law is that facts which from part of the proceedings of a Court need no more proof, relying on section 74(1)(m) of the Evidence Act and N.N.P.C V. TIJANI (2007) ALL FWLR (344) 129 @ 138 – 9.

Further that what is judicially noticed needs no further proof and so since the boundaries of the land in dispute have been adequately described, it ought to have been taken as established. The decision of the High Court in respect thereof was said to be erroneous and we were urged to set it aside