Alhaji Abatcha Mohammed Kolo V. Alhaji Mohammed Lawan (2018)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Jos division delivered on 12th day of May, 2010 wherein the Court of Appeal, herein referred to as “the Court below”, affirmed the decision of the Borno State High Court, hereinafter called “the trial Court”, delivered on 26th September, 2008.

The appellant as plaintiff before the trial Court had claimed as follows:

1. A declaration that judgment in suit No. M/132/96 delivered on 5/4/2006 is nullity having been obtained by fraud.
2. A declaration that the plaintiff is the title holder of the land covered by Certificate of Occupancy No. BO/12336.
3. An order directing the defendant to give vacant possession to the plaintiff forthwith.
4. An order restraining the defendant, his servants, agents, assigns or any person whosoever from trespassing or interfering with the land covered by Certificate of Occupancy No. BO/12336.
5. Damages from trespass to be assessed by the Court.
6. Cost of the suit.

Before I proceed further in this judgment, it is interesting to note that the respondent

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herein and one Mohammed Ali had been parties in Suit No. M/187/1996 over the same parcel of land – the land in dispute in the instant. The respondent had earlier sued the said Mohammed Ali who had entered and claimed the land in dispute as his own on the ground that he had purchased same from the present appellant who had surrendered to him, the original title documents to wit: Certificate of Occupancy No.80/12336 purportedly granted and issued to the appellant by the Borno State Government.

The said action in Suit No. M/LS7/9G was heard and decided against the said Mohammed Ali, who then laid claim to the land in dispute, and he appeared. It was during the pendency of his appeal at the Court below in appeal No. CA/J/17/2004 that the instant appellant who had passed his title to the said Mohammed Ali, instituted the action, at the Borno State High Court, which culminated into the instant appeal.

At the conclusion of the trial before the Borno State High Court, the appellant’s claims were dismissed. The Certificate of Occupancy – Exhibit C, held by the appellant was held to be void as there was in existence, a deemed right of occupancy over the

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same land in favour of the defendant, instant respondent.

Aggrieved, the appellant filed an appeal to the Court below and the said appeal was dismissed. The judgment of the trial Court was accordingly affirmed with costs awarded against the appellant but in favour of the respondent.

Further aggrieved, the appellant has appealed to this Court on seven grounds of appeal filed on 8/7/2011. Pursuant to the Rules of the Court, upon service of the records of appeal, parties filed and exchanged briefs of argument. Appellant’s brief of argument which was filed on 21/01/2012 was deemed properly filed and served on 11/01/2017; while the respondent’s brief of argument was filed on 22/03/2017 within time. The appellant subsequently filed a Reply brief of argument to the respondent’s brief of argument on 26/04/2017.

On the 6th of February, 2018 when this matter came upon for hearing, Mr. Oru of counsel, leading other counsel for the appellant, identified appellant’s main brief and reply brief of argument to urge the Court to allow the appeal, set aside the concurrent decision of the lower Court and enter judgment for the appellant in terms of his claims.<br< p=””

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