Alhaji Abba Asheik V. Borno State Government & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA B. DONGBAN-MENSEM J.C.A. (Delivering the Leading Judgment)

This appeal challenges the decision of the High Court of Justice Borno holden of Maiduguri coram judice Isa Othman (J) (of blessed memory).

Upon the application of the Appellant as Plaintiff at the trial Court, two Suits; to wit BA/1/2003 and BA/2/2003 were consolidated into one and was heard as BA/1/2003. The two Plaintiffs in the two suits are Alh. Abba Asheik And Alh. Abba Kolo A. Asheik.

The relief’s placed before the trial Court are stated in Appellant’s amended statement of claim as follows:

9. Whereof the plaintiff claims from the defendants jointly and severally as follows:

a. A sum of N10,000,000.00 (Ten Million Naira) being general damages for trespass to plaintiff’s properties No. BO. 43476 at Bama, Borno State.

b. A sum of N5,000,000.00 (Five Million Naira) being special damages for the cost of fencing the Property No. BO/43476 situate at Bama Town destroyed by the defendants/their agents or privies on 22nd of July, 2003.

c. An order of perpetual injunction the defendants their agents and privies from any further trespass to the said property till determination of this matter.

d. A declaration that the defendants’ action in trespassing and destroying the plaintiff’s fence on the landed property situate at Bama Town covered by Right of Occupancy No. BO/43476 is barbaric and an abuse of power.

e. A declaration that property covered by Right of Occupancy No. BO/43476 situate at Bama Town is the bona-fide property of the plaintiff.

f. A declaration that the defendants cannot revoke the interest of the plaintiff on the property by mere show of power or by destroying the fence erected on the piece of land.

g. The plaintiff further claims the cost of this suit.

Dated this 5th day of April, 2004.

The facts which metamorphosed into this appeal per the Respondents’ brief are as follows:

1. The Appellant applied to the 1st Respondent for a grant of a Certificate of Occupancy over a parcel of land situated at Bama on 26th day of July, 2001 for a residential building. His application was purported to have been approved and he was granted a right of Occupancy No. BO/43476.
2. On 28th July, 2002 a similar application was made by one Alhaji Abba Kolo A. Asheik to the 1st Respondent for a grant over a parcel of land situated of Bama also for a residential building and it was purported to have been approved and he was granted a Certificate of Occupancy No. BO/43478.
3. The 1st – 3rd Respondents shortly after the grant to the Appellant and the said Alhaji Abba Kolo A. Asheik discovered that the grant were made in error and/or on misrepresentation of facts, (as certain facts that the parcels of land were allocated to the 4th and 5th Respondents and one Sani Dara Jamal were not made available to the 1st Respondent) revoked the grants and demolished the structures on the land after directing the Appellant to remove some but the Appellant and the person concerned foiled to do so.
4. The affected persons including the Appellant were duly served with a revocation notice, a stop work order, and notice to remove the Structure.

Before I proceed with the main issues it is important that I make the point that there is only one Notice of Appeal before this Court. The learned Counsel for the Appellant has described “the grounds of appeal for both cases” as “intertwined” I am, not sure I understand what that means. The learned Counsel went on to formulate four issues but referred to having formulated five issues, from the amended Notice of Appeal and then proceeds to tie and argue issues 2, 3, 4 as relating to case No. BA/1/2003 on Right of Occupancy No. BO/43476 while issues 1 and 5 relate to case No. BA/2/2003 on Certificate of Occupancy No. BO/43478.