Alhaji Ahmed Muktar Yusuf V. Alhaji Mamuda Maikananzir (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Kano State in Suit No K/447/06 delivered by Honourable Justice B. S. Adamu on the 11th of March, 2009. The action before the lower Court was commenced by one the late Alhaji Mukhtari Yusuf, the heirs of who are the Appellants in this appeal, as plaintiff, against the Respondent, as defendant. The said late Alhaji Mukhtari Yusuf died in the course of the trial before the lower Court and was substituted with the Appellants. The claims as contained in the statement of claim dated the 28th of November, 2006 were for:

i. A declaration that the plaintiff is the rightful owner of all that piece of land described herein.

ii. An order declaring that the action of the defendant of building a structure on the land was wrongful and amounts to trespass.

iii. An order of perpetual injunction restraining the defendant, their agents or privies from further trespassing on the said piece of land.

iv. An order of N1,000,000.00 (One Million Naira) as special and general damages.

v. Cost of this suit.

The Respondent filed a statement of defence dated the 19th of January, 2007 in response.

The case of the Appellants on the pleadings was that their late father was the rightful owner of the farm land in dispute which is situate at Rijiyar Zaki Kano measuring approximately 78 feet wide on its east to west side and 328 and a half feet wide on the north to south side and that the farm land shared boundary with the farm of Sa’idu Mai Lalle on the east, overlooked the earth pathway (Labi) on the west, shared boundary with the farm of late Ya’u, Magaji and Kurma, now in the possession of Alhaji Hamisu, on the south and shared boundary with the farm of Mallam Ibrahim Na Ado on the north.

It was their case that the farm land in dispute formed part of a larger parcel of farmland purchased by their late father around sixty years ago from one late Alin Karwai and that their late father went into immediate possession of the portion of farmland and had full utilization of the land. It was their case that part of the farmland purchased by their late father was acquired by the Kano State Government to design the residential layout, GRA Tudun Yola, and their late father was paid compensation for the portion of the farmland acquired. It was their case that it is the portion of the farmland not acquired by the State Government that is in dispute in this matter and that their late father had been in full possession of this portion of land.

It was the case of the Appellants that sometime in 2005, the Respondent commenced erecting a fence on the farmland in dispute and purported to create plots including Plots 57, 58, 60 and 61 thereon under a TP/UDB/166 layout plan and that their late father called the attention of the Respondent to the act of trespass by a letter of warning but that the Respondent defied the letter and continued to parade himself as the owner of the land claiming that Ungogo Local Government sold the land to him.

It was their case that their late father did not at any time transfer the said farmland in dispute to Ungogo Local Government nor did he permit the Unogogo Local Government to sell or transfer same to anybody and neither was the farmland acquired by the Ungogo Local Government at any time and that when their late father confronted the Ungogo Local Government over the claim of the Respondent, it denied allocating the plots of land making up the farmland in dispute. It was their case that their late father also contacted the Kano State Ministry of Lands that acquired the portion of the original farmland of their late father and that the Ministry confirmed that the farmland in dispute was not part of the land acquired and that the State Government had no claim whatsoever over the farmland in dispute.

In response, the case of the Respondent was that the farmland in dispute formed portion of the land acquired by the Government and for which compensation was paid to the original land owners and that he is the present rightful owner of the land in dispute by reason of purchase and that he would rely on his title documents and transfer documents at the trial. The Respondent denied that the late father of the Appellants had been in possession of the land in dispute and he further denied the other averments of the Appellants.

At the trial, the Appellants called three witnesses and tendered two documents marked as Exhibits 1 and 2 while the Respondent called three witnesses and tendered no exhibit. The records of the lower Court showed that the Court visited the locus in quo in the presence of the Counsel to both parties, the late father of the Appellants and the second and third plaintiff witnesses. At the conclusion of trial and after written addresses of Counsel, the lower Court entered judgment dismissing the claims of the Appellants. The Appellants were not satisfied with the judgment of the lower Court and they caused a notice of appeal dated the 12th of March, 2009 to be filed against it and it contained six grounds of appeal.