Alhaji Ahmadu Abba & Anor V. Zigwai Z. B. Gaiya (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Kafanchan Division of the Kaduna State High Court (herein referred to as the lower Court) delivered on the 15th of October, 2008, in suit No. KDH/KAF/23/2005, wherein all the reliefs sought by Zigwai Z. B. Gaiya (the respondent) were granted, and the counter-claim of Alhaji Ahmadu Abba (the 1st appellant) was dismissed.

Piqued and peeved by the decision of the lower Court, the appellants appealed to this Court vide Notice and grounds of appeal filed on 17th of October 2008, which was amended and deemed filed on the 24th of September, 2014 pursuant to an order granted on the 14/9/2009.

The facts or events leading to the institution of the suit at the lower Court by the respondent are simple and straightforward as assembled from the pleadings of the parties. The respondent (as plaintiff) commenced the action by writ of summons/statement of claim seeking for declaratory reliefs in respect of a parcel of land situate along Kagora Road, Kafanchan, Kaduna State, covered by statutory Right of Occupancy No. NC. 2178. The

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respondent asserted that his late father was allocated the parcel of land by the Kaduna State government sometime in 1978. That he continued exercising acts of possession till his death. Meanwhile, one Mrs. Jacob Gambo (the 2nd appellant) was permitted to do farming on a portion of it.

The appellants, on the other hand, claimed that the land in disputed belonged to the family of the 2nd appellant under customary law in that their ancestors (forefathers) cleared/deforested the land and have since been in physical possession and farming on it. That in 1972, the Kaduna State Government acquired the land subject to payment of compensation which was not effected.

Consequently, they maintained their customary ownership of the land which was later sold to the 1st appellant in 2003 for a consideration of N500,000.00. He commenced developing the land which was objected to by the respondent culminating in the institution of the suit at the lower Court.

The appellant’s amended brief of argument dated 24th of June 2015 was deemed filed on 14/10/2015 by order of Court. The respondent’s brief of argument dated 25th of May, 2015 was deemed filed on the 1/2/2016.

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The appeal was argued on the 1st of February 2016, whereat Habeeb, Esq. who settled the appellants’ brief of argument adopted his brief of argument, urged the Court to allow the appeal and set aside the judgment of the lower Court. For the respondent, J.B. Amos, Esq. who settled their brief of argument adopted same and urged the Court to dismiss the appeal for lacking in merit and to affirm the judgment of the lower Court.

On page 6 of the appellants’ brief of argument, a sole issue has been formulated from the grounds of appeal. The respondent also distilled a lone issue from the grounds of appeal on page 11 in his brief of argument, which is not dissimilar to the issue contained in the appellants’ brief of argument. The issue to be resolved which would ultimately determine the appeal is therefore, thus:

“WHETHER THE LOWER COURT WAS RIGHT IN GRANTING THE RELIEFS SOUGHT BY THE RESPONDENT HAVING REGARD TO THE EVIDENCE ADDUCED BY THE PARTIES BEFORE IT?”

Before proceeding to consider the argument canvassed by both learned counsel in their respective briefs of argument, I consider it appropriate to state at this juncture that the respondent’s